Treaties' End: The Past, Present, and Future of International Lawmaking in the United States

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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. …