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countries that provide different methods for making international law than for making ordinary legislation, where treaties are self-executing
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Nearly every international agreement that is made through the Treaty Clause should be approved by both houses of Congress as a congressional-executive agreement instead. In making this case, this Article examines U.S. international lawmaking through empirical, comparative, historical, and policy lenses. U.S. international lawmaking is currently hap...
Context in source publication
Context 1
... these, only ten (again, including the United States) explicitly provide in their constitution for some level of automatic incorporation of international law into domestic law. 85 Those countries are listed in Table 3. . Several other countries specify special voting procedures that include a supermajority threshold for particular subsets of treaties-for example, human rights treaties that are to be given constitutional status. ...
Citations
... While the vast majority are congressional-executive agreements, some nonetheless are sole executive agreements. 82 The president's authority to conclude congressional-executive international agreements can be delegated by Congress through a statute or an Article II treaty. 83 When using a sole executive agreement, the president's authority must flow directly from his independent powers under the Constitution. ...
... 20. This variable is taken from Spilker and Koubi (2016) who relied on Hathaway (2008). The latter describes countries as of 2007. ...
The stage in which countries formally decide on whether to participate in (i.e., ratify) international agreements is crucial to global governance efforts. The reason is that, by and large, international agreements with greater participation are more likely to contribute to effective problem solving. We study the role procedural design characteristics of agreements play in such decisions. Specifically, we examine whether treaties’ provisions allowing non-state actors to participate in treaty making, which is widely regarded as an important procedural aspect of governance, increases the likelihood of ratification. Our empirical testing relies on a new time-series-cross-sectional dataset that includes information on the ratification behaviour of 154 countries with respect to 178 multilateral environmental agreements in 1950–2011. We find that treaty provisions allowing for greater non-state actor access to the meetings of the parties indeed increase the likelihood of treaty ratification. The result is robust to controlling for the effects of various other treaty design characteristics and country characteristics on ratification behaviour. The main policy implication is that, despite occasional debate over drawbacks of involvement of non-state actors, the latter tends to support global environmental governance efforts and should be further enhanced.
... The Legislative Approval variable is an indicator for whether a treaty has support in the legislature. This variable is sourced from Hathaway (4). In this variable, the breakdown of values is as follows: ...
Supplementary materials appendix.
This document contains additional information associated with the manuscript “Latent influence networks in global environmental politics.” This includes information on the dataset and variables used, comparison to a control-only baseline logistic regression model, comparison to the baseline model of Spilker and Koubi (2016), a brief overview of the BLIN model, summary statistics for the inferred influence networks, ERGM goodness of fit diagnostics, and a discussion of European policy coordination.
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... 14 Fifth, we use a country's per capita sulfur dioxide emissions (lnso2pc) as a proxy for its overall environmental quality (Smith et al. 2011a, b;Stern 2005). 15 Sixth, we capture the constitutional requirements for treaty ratification with legislative_approval (Hathaway 2008). 16 Seventh, we account for whether a country was among the countries who originally negotiated the MEA (negotiation_party) (Spilker and Koubi 2016). ...
The “rational design approach” to studying international agreements holds that policy-makers evaluate costs and benefits of cooperation when designing treaties and subsequently deciding on participation. To influence this cost–benefit calculus, treaty designers sometimes include a fund from which financial assistance is provided to treaty members and to which treaty members contribute. We argue that the inclusion of a funding mechanism in a treaty can increase but also decrease the costs (benefits) of membership and can thus influence state choices on participation in both directions. Specifically, we argue that: (1) overall, states are more likely to join international agreements that include a fund; (2) the probability of joining is higher for agreements including a fund if contributions to the fund are voluntary; and (3) countries are more likely to join agreements including a fund that disburses assistance only to a select group of treaty members. We test these arguments using a new dataset with information on 154 countries’ ratification behavior toward 178 multilateral environmental agreements (MEAs) from 1950 to 2011. Our findings are in line with these arguments. The main policy implication is that MEA designers interested in maximizing treaty participation should include a formal funding mechanism and, in an effort to balance out positive and negative effects this might have on participation, base this mechanism on voluntary contributions and selective entitlements.
... Existing initiatives to map international law in domestic legal systems are less systematic and/or more limited in scope. Specifically, Hathaway (2008) and the Comparative Constitutions Project 80 assemble information on the domestic status of international law based on the constitution alone. Yet, many relevant aspects of a domestic legal system's relationship to international law are not found in the text of the constitution but in ordinary legislation, case law, practice, and executive orders. ...
Enforcement of international law is often delegated to national courts, creating a space for them to play a part in international judicialization. Under what conditions can they do so? We argue that the answer depends on the relationship between the political and legal constraints national courts face. National courts must be careful to safeguard their independence in the face of potential backlash, but they face constraints in terms of the legal mechanisms available to them when enforcing international law. We focus on the availability of two legal mechanisms: direct effect, under which courts apply treaties directly, setting aside inconsistent domestic laws; and canons of interpretation, under which courts strive to interpret domestic laws in conformity with treaties. We find that the effects of human rights treaty ratification is greater when courts have the canon available to them than it is when courts have direct effect available to them.
... One stream of research focuses on how these rules affect the form of international agreements. In the U.S. context, for example, studies have examined how these rules interact with domestic and international political factors to influence the president's choice among sole executive agreements, executive-legislative agreements, and Article II treaties (Setear, 2002;Martin, 2005;Hathaway, 2008 Another stream of research uses cross-national analysis to shed light on the domestic legal factors that influence treaty ratification. This raises a point of terminology: Although domestic approval of treaties is sometimes called "ratification," the term technically refers to a method by which a state may express its consent to be bound by a treaty. ...
Political scientists — primarily in the discipline’s international relations subfield — have long studied international law. This article identifies five stages of political science research on international law, including the current interdisciplinary international law and international relations (IL/IR) stage, and it reviews three trends in political science research that constitute an emerging sixth stage of interdisciplinary scholarship: a law and world politics (L/WP) stage. First, moving beyond the “IL” in IL/IR scholarship, international relations scholars are increasingly studying domestic law and domestic courts — not only their foundational role in supporting international law and international courts but also their direct role in core areas of international relations, including international conflict and foreign policy. Second, moving beyond the “IR” in IL/IR scholarship, political scientists are adapting their research on international law to the broader world politics trend in political science by studying types of law — including extraterritoriality, conflict of laws, private international law, and the law of transnational commercial arbitration — that govern the transnational activity of private actors and can either support or hinder private global governance. Third, moving beyond the domestic- international divide, political scientists are increasingly rejecting “international law exceptionalism,” and beginning to take advantage of theoretical convergence across the domestic, comparative, and international politics subfields to develop a better general understanding law and politics.
This article’s main goal is to map out L/WP scholarship by examining these three trends. It also aims to facilitate further L/WP research by describing several areas of law, including foreign relations law, conflict of laws, transnational commercial arbitration, and international investment law, that may be unfamiliar to some political scientists, and explaining why they are relevant to international relations and to world politics more broadly. The article proceeds in five sections. The first two sections provide background by clarifying the definition of international law (Section 1) and briefly surveying the historical evolution of political science research on international law (Section 2). The last three sections review more recent scholarship to illustrate how L/WP research is moving beyond international law (Section 3), beyond international relations (Section 4), and beyond international law exceptionalism (Section 5).
[Published in OXFORD RESEARCH ENCYCLOPEDIA OF POLITICS (William R. Thompson, ed.) (Oxford University Press 2018) (https://doi.org/10.1093/acrefore/9780190228637.013.94).]
... The classical procedure established by Article II, section 2, of the US Constitution ('Treaty-clause') requires consent and advice by two-thirds of the Senate (the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur"). The super-majority voting requirement enshrined in the 'Treaty-clause' -unlike most countries -is only envisaged in other five countries in the world (Hathaway, 2008(Hathaway, , p. 1236. This mechanism is a hindrance to the ratification of several treaties, since Senate members are traditionally exposed to the pressure of lobbies and interest groups, being elected at local level and being bearers of the interests of the State that designated them (De Sombre, 2014, p. 224). ...
The unexpected election of the Republican Donald J. Trump for the US presidency generated serious concerns as to the future of the multilateral negotiations on climate change. Indeed, the President Trump is a climate skeptic who is challenging the linkage between human activity and global warming. With the long-awaited Statement of 1st June 2017 on the US withdrawal from the Paris Agreement, he claimed the prevalence of domestic economic interests over common concerns, like climate. In fact, President Trump’s declaration – although void of any sort of rational, coherent explanation – constitutes the proclamation of the primacy of State sovereignty when it comes to environmental issues. In this regard, the words of President Trump are eloquent: “the withdrawal from the Paris Agreement represents a reassertion of America’s sovereignty”. In the present paper, the free-riding strategy that the Trump administration took regarding international climate commitments will be reviewed, focusing on the consequences of Trump’s declaration, whose twofold content will be highlighted (it lies not only in the expression of the will to exit the Agreement, but also in the immediate ceasing of its implementation). Finally, the potential countermeasures to steer the US action (tit-for-tat strategy) or other incentives for and implications of the US withdrawal will be analyzed, as well as some reflections on the next steps for the US in the climate change regime, claiming that Trump’s pursuit of short-term benefits would come at the risk of longer-term damages.
... The United States is a member-nation of the United Nations and has agreed to treaties that empower the nation to act boldly and aggressively in pursuit of international interests, even going beyond the United States' customary constitutional parameters (Hathaway, 2008;Yoo, 2001). In some contexts, especially trade and commerce, the United States has embraced its broader governmental powers that arise from its agreement to international treaties (Yoo, 2001), but the United States has wholly disavowed the use of its broader governmental powers in the area of human rights (Hathaway, 2008), especially in the area of educational equity and justice. ...
... The United States is a member-nation of the United Nations and has agreed to treaties that empower the nation to act boldly and aggressively in pursuit of international interests, even going beyond the United States' customary constitutional parameters (Hathaway, 2008;Yoo, 2001). In some contexts, especially trade and commerce, the United States has embraced its broader governmental powers that arise from its agreement to international treaties (Yoo, 2001), but the United States has wholly disavowed the use of its broader governmental powers in the area of human rights (Hathaway, 2008), especially in the area of educational equity and justice. ...
... The federal government of the United States has sought to use this power in the areas of trade and commerce and environmental protection, but the federal government has opted-out of using the Treaty Power to remedy disparate racial outcomes in human rights (Hathaway, 2008). Yoo (2001) asserts that the Senate has only rejected a significant treaty that the president sought twice over the last century; however, he fails to account for the number of significant human rights treaties that the Senate has ratified with reservations, understandings, and declarations (which are tantamount to a refusal and rejection of the treaty). ...
Supreme Court decisions expanding the Treaty Power of the United States’ Constitution have given the federal government broad powers to expand domestic efforts to remedy educational racism. Despite the use of these enhanced powers in other areas, the United States has failed to use the Treaty Power to address educational inequity. In this legal-historical piece, I argue that the United States’ refusal to fully adopt international treaties aimed at eradicating racism continues the countries history of not protecting minoritized citizens. Moreover, I use the development and persistence of the school-to-prison pipeline and the United States’ failure to properly enact education reform to assert that White Americans in the United States have little or no interest in securing equitable educational outcomes for Black students. Ultimately, I argue, using Critical Race Theory, that the United States’ failure to obligate itself and its states to pursue equitable academic outcomes is a form of coalition blocking that upholds white supremacy and protects abstract liberalism.
... 5 There is also no evidence that negotiating partners make demands as to the form of agreement. Furthermore, Hathaway (2008Hathaway ( :1271 also argues that the US has a "remarkably unusual method of making international law." This makes it unlikely that other states could fully game the system by making demands as to agreement type. ...
... If lack of ratification relegates the United States to observer status, the United States will be less able to participate in continued negotiations of the implementation of the treaty regime, a point bemoaned at times by President Clinton in his transmittal letters urging Senate action (Clinton 1997). Indeed, these practical concerns support the calls of some legal scholars for amending the process (Hathaway 2008;Galbraith 2012). The insights from this research suggest that whatever changes we might contemplate, it would be wise to consider how they affect the opportunity cost of policymakers. ...
The United States often leads in the creation of treaties, but it sometimes never joins those treaties or does so only after considerable delay. This presents an interesting puzzle. Most international relations theory expects states to join treaties as long as the benefits outweigh the costs. Domestic theories modify this with the constraints of institutional veto players. Yet, sometimes neither of these arguments explains the delay or absence of US participation. We supplement these explanations with an opportunity cost theory. We argue that the advice and consent process sometimes slows or stalls because it imposes costs in terms of legislative time and political capital. These costs alter the calculus of key players and may obstruct the process. Statistical analysis supports the argument. The priority the Senate and President give to treaties depends not only on the value they assign to the treaty, but also on the value of the time needed to process the treaty. Presidents are less, not more, likely to transmit treaties to the Senate the more support they have in Congress. Furthermore, the more support the President has in Congress, the more the cost of Senate floor time matters for advice and consent.
... Depending on the provisions of the constitution of a country, ratification may be either executed by the government itself (i.e., the executive branch) (Israel, Bangladesh, Libya) or by the legislature. When such an approval is required, constitutions usually specify not only whether the consent of one or both houses of the legislature is required but also the voting threshold (simple majority or supermajority) that is necessary to be reached by the legislature (Hathaway 2008). Consequently, in countries where the constitution does not provide for any additional ratification provisions, the executive can just go ahead and ratify the treaty she has signed. ...
We study the effects of treaty design and domestic institutional hurdles on the ratification behavior of states with respect to multilateral environmental agreements (MEAs). Specifically, we examine whether (1) strong legality mandated by a treaty such as precisely stated obligations, strong monitoring/enforcement mechanisms, and dispute resolution procedures, and (2) high domestic constitutional hurdles such as requirements for explicit legislative approval deter countries from ratifying a treaty. To test our theoretical claim, we use a new time-series-cross-sectional dataset that includes information on the ratification behavior of 162 countries with respect to 220 MEAs in 1950-2000. We find that treaties that are characterized as 'hard' indeed deter ratification. Furthermore, explicit legislative approval requiring supermajority also makes treaty ratification less likely.
