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

Oona Hathaway (Yale Univ. - Law) has posted Treaties' End: The Past, Present, and Future of International Lawmaking in the United States (Yale Law Journal, forthcoming). Here's the abstract:

This Article makes the case that nearly everything that is done through the Treaty Clause can and should be done through congressional-executive agreements. In making this case, the Article examines the two separate tracks of U.S. international lawmaking through empirical, comparative, historical, and policy lenses. The empirical assessment calls into question prior claims about how the two instruments are used. The findings have implications for the longstanding debate over the "interchangeability" of treaties and congressional-executive agreements. The crossnational comparative analysis shows that United States is extraordinarily unusual in the way it makes international law. Indeed, the process for making international law that is outlined in the U.S. Constitution is close to unique. Together with the evidence about recent U.S. practice, these findings pose a puzzle: why does the United States have such an anomalous system for making international law? The Article next develops an historical account that provides some answers. It traces the current odd and unsatisfactory international lawmaking arrangement back to the Founding. The current system of international lawmaking in the United States rests on rules and patterns of practice developed in response to specific contingent events - events that for the most part have little or no continuing significance. Finally, the Article turns to examine the issue from the perspective of public policy. It shows that the Treaty Clause, besides having no strong legal or historical claim for priority today, is demonstrably inferior as a matter of U.S. public policy to congressional-executive agreements on nearly all crucial dimensions: ease of use, democratic legitimacy, and strength of the international legal commitments that are created. Finally, 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.

Opinio Juris is currently hosting a forum on Hathaway's article.