Academic

Hathaway on the Future of International Lawmaking

By Lawrence Solum

Oona A. Hathaway (Yale University - Law School) has posted Treaties' End: The Past, Present, and Future of International Lawmaking in the United States (Yale Law Journal, Vol. 117, No. 8, 2008) on SSRN. Here is the abstract:

This Article makes the case that nearly every international agreement that is made through the Treaty Clause of the U.S. Constitution should be approved by both houses of Congress as congressional-executive agreements instead. In making this case, the Article examines the two separate tracks of U.S. international lawmaking through empirical, comparative, historical, and policy lenses. It begins with a broad empirical assessment, finding that U.S. international lawmaking is haphazardly carved up between the two tracks, with some areas assigned to the Treaty Clause route, others to the congressional-executive agreement route, and many uncomfortably straddling the two. The cross-national comparative analysis that follows shows that the process for making international law that is outlined in the U.S. Constitution is close to unique. To explain how the United States came to have such a haphazard and unusual system for making international law, the Article traces the history of the two tracks of international lawmaking back to the Founding. The rules and patterns of practice that now govern were developed in response to specific contingent events¿events that for the most part have little or no continuing significance. The Treaty Clause process is also demonstrably inferior to congressional-executive agreements as a matter of U.S. public policy on nearly all crucial dimensions: ease of use, democratic legitimacy, and strength of the international legal commitments that are created. Thus, the Article concludes by presenting a vision for the future of international lawmaking in the United States that charts a course toward ending the Treaty Clause for all but a handful of international agreements. By gradually replacing most Article II treaties with congressional-executive agreements, policymakers can make America's domestic engagement with international law more sensible, more effective, and more democratic.

Highly recommended.

I was fascinated by an issue that Hathaway, for the most part, puts to the side: the question whether a broad reading of the Supreme Court's decision in Belmont (holding executive agreement to be constitutionally valid) can be squared with the original public meaning of the Constitution.  At the very least, that question seems like a very difficult one.

Full post as published by Legal Theory Blog on March 24, 2008 (boomark / email).