Treaties' end: the past, present, and future of international lawmaking in the United States.

Author:Hathaway, Oona A.

ARTICLE CONTENTS INTRODUCTION I. U.S. INTERNATIONAL LAWMAKING AND THE DEBATE OVER INTERCHANGEABILITY A. The Interchangeability Debate B. How International Law Is Made in the United States 1. Legislative and Regulatory Guidelines 2. Article II Treaties vs. Congressional-Executive Agreements: The Empirical Evidence C. U.S. Practice in Comparative Perspective II. A BRIEF HISTORY OF INTERNATIONAL LAWMAKING IN THE UNITED STATES A. The Treaty Clause: A Compromise To Save the Union 1. The Senate as a "Council of Advice" to the President 2. Protecting Regional Interests: The Mississippi River and the Origins of the Treaty Clause B. The Rise of the Congressional-Executive Agreement 1. The First Hundred Years: A Modest Tool 2. The Second Hundred Years: Reversal of Fortunes C. Divergent Paths: The Bricker Amendment Controversy and Fast Track III. THE CASE FOR (ALMOST) ABANDONING THE TREATY CLAUSE A. Stronger Democratic Legitimacy B. A Less Cumbersome and Politically Vulnerable Process C. More Reliable Commitments 1. Enforcement of Treaties and Congressional-Executive Agreements 2. Withdrawal from Treaties and Congressional-Executive Agreements IV. THE END OF THE TREATY AND ITS CONSEQUENCES A. Constitutional Consequences B. The International Legal Consequences C. Treaties' End CONCLUSION APPENDIX A. Data Sources for Treaties and Executive Agreements B. Constitutional Requirements for Domestic and International Lawmaking INTRODUCTION

In the fall of 2007, Senate hearings finally commenced on the United Nations Convention on the Law of the Sea, a treaty that has been languishing in the Senate since 1994, when Bill Clinton was still a fresh face in the White House. (1) Submitted to the Senate under the Treaty Clause of the Constitution, (2) the treaty must gain the consent of two-thirds of the Senate in order to become law for the United States--a hurdle it has been unable to clear for over a decade because of a small but determined opposition. Meanwhile, free trade agreements between the United States and Peru, Colombia, and Panama are also up for approval. But these agreements are proceeding not through the Treaty Clause but as "congressional-executive agreements," subject to approval by a majority of both houses of Congress. Signed in 2006, one has already been approved by Congress and at least one more is likely to be approved later this year. (3)

As these examples show, the process for making binding international agreements in the United States today proceeds along two separate but parallel tracks: one that excludes the House of Representatives and another that includes it, one that requires a supermajority vote in the Senate and another that does not, one that is expressly laid out in the Constitution and one that is not. (4) I refer to both of these methods of making international commitments as "international lawmaking" to emphasize the dependence of international law on individual countries' decisions to commit to it. International law may be negotiated by states in New York or Geneva or Montreal, but it is not made at the negotiating table. It is made by countries when they agree as a matter of law to a binding international commitment. For it is the act of consent by each country that transforms an international agreement from a piece of paper devoid of any legal force into law that binds. (5)

Of the two methods for malting international law in the United States, the Treaty Clause-which requires a two-thirds vote in the Senate and bypasses the House of Representatives- is the better known of the two; it is principally used to conclude agreements on extradition, taxation, and investment and commercial matters. But an increasingly common path is the congressional-executive agreement, now used in virtually every area of international law. Each year, hundreds of congressional-executive agreements on a wide range of international legal topics are enacted by simple majorities in the House and Senate and signed into law by the President, outside the traditional Treaty Clause process. (Executive agreements entered into by the President alone-often called sole executive agreements-are also on the rise and involve no formal congressional involvement at all. (6))

It is puzzling that two distinct methods of lawmaking operate side-by-side within a single nation--all the more so because virtually no other country deals with international law as we do. Most other countries make international law in the same way they make domestic law-a norm followed by one of our two methods (congressional-executive agreements) but not the other (the Treaty Clause). Because the Treaty Clause requires that all but thirty-three members of the Senate assent to a treaty and includes no provision for participation by members of the House, it surely makes a substantial difference which of these two methods is used. For this reason alone, it would be natural to expect that there are compelling, consistent reasons why each method is used in particular areas or instances.

Yet that is not the case. Although there are patterns to the current practice of using one type of agreement or another, those patterns have no identifiable rational basis. For example, most free trade agreements are concluded through congressional-executive agreements. By contrast, agreements on investment and commercial matters-issues no less critical to the smooth operation of the global economy-are concluded through both treaties and congressional- executive agreements. The Law of the Sea Convention mentioned at the outset was brought to the Senate under the Treaty Clause. But most other fisheries and maritime agreements are concluded through congressional-executive agreements. Human rights agreements are concluded as treaties. Meanwhile, the vast majority of education, health, and debt-restructuring agreements with developing countries--issues that can be just as important to human dignity--are concluded as congressional-executive agreements. Compared with agreements authorized as congressional-executive agreements, a higher share of agreements considered under the Treaty Clause are multilateral. Nonetheless, the vast majority of multilateral agreements are concluded through congressional-executive agreements.

There is, I argue, no persuasive explanation for these differences based on the subject matter, form, topic, or any other substantive basis. The explanation for these differences lies not in reason, but in history-a history that it is now time to leave behind. Rooted in now-irrelevant (and discredited) concerns of slaveholding states, overtaken by actual political practice almost from the Constitution's beginning, the Treaty Clause was the product of circumstances that have little continuing relevance.

The current bifurcated system took its shape over the course of the twentieth century. The United States gradually abandoned the mercantilist, protectionist trade policy that it had pursued since the Civil War in favor of a policy built on reciprocal trade agreements with foreign states. The legal innovation that enabled this transformation subsequently expanded to include almost every area of international law-an expansion fueled by the perceived cumbersomeness of the Treaty Clause alongside the desire and need for the country to engage more fully in the international sphere. Meanwhile, opposition to human rights agreements motivated significant opposition to treaties in the second half of the century. In the 1950s, a series of proposed amendments to the Constitution (generally referred to collectively as "the Bricker Amendment" after the chief sponsor in the Senate) aimed to prevent the United States from entering international human rights agreements that some feared would be used to challenge segregation and Jim Crow. The controversy ended in a "compromise" in which the amendment was defeated at the cost of future human rights agreements, which would henceforth be concluded only as treaties that had been rendered almost entirely unenforceable through reservations, understandings, and declarations. (7) All of the rest of international law was haphazardly carved up between these two tracks-with some areas assigned to the Treaty Clause route, others to the congressional-executive agreement, and many uncomfortably straddling the two.

Paying fealty to this history by requiring that treaties continue to be used in certain historically contingent areas of international law comes at a substantial continuing cost: compared to congressional-executive agreements, treaties have weaker democratic legitimacy, are more cumbersome and politically vulnerable, and create less reliable legal commitments. The final failure is particularly worrisome, since the central purpose of international lawmaking is to create reliable commitments between states.

This Article makes the case for a new direction: nearly everything that is done through the Treaty Clause can and should be done through congressional-executive agreements approved by both houses of Congress. The congressional-executive agreement includes the House of Representatives in the lawmaking process, is less subject than is a treaty to stonewalling by an extreme minority, and rarely requires the passage of separate implementing legislation to enter into effect. Moreover, the agreement is often easier to enforce and can be subject to more stringent rules regarding unilateral withdrawal, thus allowing the United States to make stronger and more consistent international commitments. A congressional-executive agreement might seem to lack the "'dignity' of a treaty." (8) But in fact a congressional-executive agreement that is expressly approved by Congress is more legitimate and more reliable than a treaty, and it can and should be used for even the most important international commitments. (9)

In laying out the case for "treaties' end," I examine U.S. international lawmaking through empirical, comparative, historical, and...

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