Hathaway wants better intl. law policies
By Stephanie Mcfeeters, The Dartmouth Staff
Published on Friday, January 13, 2012
The way the United States government creates international law is flawed and concerns not only international law scholars but also impacts ordinary Americans on a daily basis, Yale Law School professor Oona Hathaway said in a Wednesday lecture at the Rockefeller Center titled “Our Foreign Affairs Constitution: The President, Congress, and the Making of International Law.”
In today’s world, international and domestic law are converging to the point that almost no aspect of domestic law is unaffected by international law, according to Hathaway.
“Every state designs its own structure of international law,” she said.
The American process of international lawmaking differs in many ways from that of other countries and includes “inconsistencies and oddities” that need to be addressed, she said, adding that the U.S. government needs to hold international law to the same basic standards of legitimacy and accountability to which it holds domestic policies. When assessing international law in this context, she said its strengths and shortcomings become clear.
International lawmaking in the U.S. is sometimes criticized as “undemocratic and unaccountable,” Hathaway said in an interview with The Dartmouth before the lecture.
Three of the four ways that the U.S. makes international agreements include significant problems, Hathaway said during the lecture. The majority of international agreements that are made today are “ex ante” congressional agreements and sole executive agreements, which both “lack transparency and involve little or no checks on the unilateral power of the president to conclude agreements,” she said. In “ex ante” congressional agreements, Congress grants open-ended authority to the president to negotiate international agreements. This means that there is no Congressional authority over the conclusion of the agreement and the president could theoretically negotiate forever, Hathaway said.
Sole executive agreements are enacted though the power of the president and are shielded completely from public view. This leaves them “open to abuse” by presidents who use them to exceed their authority, she said.
On the other hand, Article II treaties, referring to Article II of the Constitution and the only international laws explicitly mentioned within it, are “cumbersome,” and the lawmaking process requires the consent of two-thirds of the Senate and excludes the House of Representatives, she said.
Legal scholars and American government officials often view the American system of international lawmaking with suspicion, and some have suggested rejecting American international law altogether, she said.
International laws need to be normalized and brought into the familiar framework of domestic law, she said. This solution would strengthen international treaties and make them easier to enforce, as the legislation would resemble the legislation that judges are accustomed to seeing on a daily basis.
One way to normalize international law would be through the passage of “ex post” congressional-executive agreements, because unlike “ex ante” congressional agreements, Congress votes on these negotiations after they are made. This would streamline the process and result in more reliable commitments, she said.
These agreements are the method of choice for trade agreements, but there is no reason they should be limited to trade, she said.
Implementing broad-based “fast track legislation” is another step that could be taken to “expand and simplify” the international lawmaking process, she said.
Designing a process similar to the Administrative Procedure Act, an act that provides oversight of administrative lawmaking, would also improve transparency and allow opportunities for public involvement, she said.
Robert Smith ’14 said Hathaway’s lecture led him to consider how international law-making should move forward.
“As the world becomes more global, we need to consider whether or not it needs to be easier to pass these treaties and open up to the world,” Smith said. “I’m not sure where I stand yet.”
Ratifying international human rights treaties have proven difficult in the United States, government professor Brian Greenhill, who attended the lecture, said.
“What she’s been suggesting with ‘ex post’ congressional treaties provides some more hope that the U.S. will be able to eventually ratify some of these treaties,” he said.
The lecture — sponsored by the Rockefeller Center, the Dartmouth Legal Studies Faculty Group and the Dartmouth Lawyers Association — was the William H. Timbers ’37 Lecture and was part of the Dartmouth Centers Forum, whose theme this year is “words and their consequences,” government professor Lisa Baldez said while introducing the lecture.