Recognizing the Complexity in Comparative Analysis of National Treaty Law and Practice

First off, let me thank Oona Hathaway and our guest bloggers for contributing to what is turning into a highly useful discussion of the relative merits of Article II treaties vs. congressional-executive agreements. Oona’s work is ambitious and provocative, seeking to marshal comparative, historical, and normative arguments in favor of (largely) discontinuing the Article II treaty-making process. Some of the most interesting discussion, no doubt, involves the historical and normative inquiries, but I wanted to say a word about the comparative issue Chris initially raised before we get too far down either of those other roads.

In responding to Chris’s questions about the utility of comparative analysis to her argument, Oona cites her own research to suggest that the United States is an outlier in terms of its Senate advice and consent process. Although I’d agree with her contention that the United States approach is relatively unique, I don’t agree that it follows that the United States must be viewed as operating inconsistently with how some majority of other states approach questions of legislative approval for treaty-making. My own research on the topic suggests that, although virtually all states require some form of legislative approach for some treaties, the diversity of approaches makes it difficult to create a uniform spectrum on one end of which the United States lies.

For starters, Oona suggests that Tajikistan and the United States are “the only countries in the world that provide for less involvement by a part of the legislature in treaty-making than in domestic lawmaking and make the results of this process automatically part of domestic law . . .” (p. 37) But what about Mexico? Under the Mexican Constitution, Mexico’s treaties are concluded by its President with the approval of its Senate alone and, so long as they are not inconsistent with the constitution, operate as the “supreme law of the land.” (see Arts. 89(X) and 133 of the Mexican Constitution). Similarly, Oona suggests that “only five other countries in the world—Algeria, Burundi, Iraq, Philippines, and Poland—require a supermajority vote in their legislature in order for the country to ratify a treaty” (p. 36) But there are other states that do require a supermajority vote, if not for all treaties, than at least for certain ones that implicate core constitutional issues (e.g., Austria, Germany, the Netherlands). States like Austria and Germany, moreover, also alter the respective functions of their legislative bodies for certain types of treaties than the functions they normally apply in considering domestic legislation.

I was also struck by the relative lack of discussion of “commonwealth” states such as the United Kingdom, Canada and India that don’t require legislative approval for treaty formation at all. If one were to try and construct some spectrum of legislative participation, it would seem that these states, not the United States, would have to be the outliers in terms of democratic participation in treaty formation. In truth, however, I think such a spectrum is difficult to create, particularly given that for most states the question is not so much how the legislature approves a treaty, but when it does so. Indeed, the United States is remarkably similar to the majority of states in having a multiplicity of domestic legal processes for forming treaties, only some of which involve the legislature. Some states (e.g., Chile, the Netherlands, South Africa, Switzerland) exempt out certain treaties from legislative approval; many others require approval only for specific categories of treaties (e.g., Egypt, France, Germany, Japan, Russia, Thailand).

Moreover, in focusing on legislative approval of treaties, I fear Oona’s comparative analysis undervalues the non-legislative mechanisms that other states have devised in deciding whether to join a treaty. For example, Switzerland has a relatively robust practice of popular referenda to approve some of its more politically or economically important treaties (as does France, albeit to a much more limited extent). Other states involve their judiciary, requiring a Constitutional Court or its equivalent to opine on a treaty’s constitutionality in advance of that state joining the treaty. Still other states—notably Canada and Germany—have mechanisms that incorporate the opinions of sub-national actors as part of the treaty-formation or implementation process. Thus, if you’re going to use a comparative lens to advocate for a more democratic treaty-making process, I’d think the paper needs to acknowledge the diversity not only among, but within, most states in how they go about joining treaties.

Finally, notwithstanding the value of Oona’s comparative research on its own terms, I wonder about its utility in the current context. It seems strange to me to rely only on foreign constitutions (and/or basic laws) in making a comparative analysis here. After all, if one did that for the United States, the congressional-executive agreement process at the heart of this paper would be left out. Similarly, I’m concerned that painting the United States as an outlier solely based on what foreign constitutions say may miss glosses on those texts by statutes, regulations or state practice. For example, although India’s constitution suggests that treaty-formation will require an act of Parliament (which I suspect is why Oona lists it in Annex C as requring regular legislative approval), in fact, the Parliament never passed the requisite law giving effect to this power. As a result, notwithstanding the constitutional text, in India the Executive continues to make treaties unfettered by any legislative approval requirement. Of course, the actual practice may cut the other way as well–for example, even as states like the United Kingdom say that they need no legislative approval to enter into a treaty, they have a practice of getting legislation if the treaty requires a change or expansion of existing domestic law in order to implement it.

In sum, I welcome Oona’s effort to try and place the U.S approach to treaty-making in a comparative context. At the same time, however, I worry that in its present effort to create hard categories that seek to distinguish how other states operate from the Article II process, the paper may give the false impression that other states lack some of the same multi-faceted features that exist in U.S. treaty law and practice. Of course, this critique doesn’t undercut the value of her overall inquiry, but it does suggest a comparative analysis may not do exactly what her current draft suggests it does.