Skip to main content Accessibility help
×
×
Home

Samsons or Methuselahs? The (Potential) Virtue of Article II Treaties

  • Edward T. Swaine (a1)

Extract

Why does Wüsthof sell a fancy kitchen knife for US$2000, but mass-produce something similar for US$100? Why do some of us mail holiday cards, while sending anything similar by email? Why does the American Journal of International Law print its journal, when interested readers—and there should be many—can read articles like Julian Nyarko's “Giving the Treaty a Purpose: Comparing the Durability of Treaties and Executive Agreements” online? Come to think of it, why bother with Article II treaties, when they too have a near substitute, more easily produced, in congressional-executive agreements? On this last question, Nyarko's article offers an interesting approach and an intriguing finding: if we measure the commitment strength of agreements in terms of duration, treaties are measurably longer and, perhaps, stronger. Having spent several years working on treaty issues for the Restatement (Fourth) of the Foreign Relations Law of the United States, I am acutely (and perhaps embarrassingly) interested in finding out why they matter. In this essay, I note some misgivings about how the article reckons the substitutability of agreements and about treating their age as a proxy for strength—perhaps Methuselah rivaled Samson's might at some point, but that was not how he distinguished himself—before closing by trying to imagine rival inferences that might be consistent with Nyarko's valuable insights.

  • View HTML
    • Send article to Kindle

      To send this article to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle. Find out more about sending to your Kindle.

      Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

      Find out more about the Kindle Personal Document Service.

      Samsons or Methuselahs? The (Potential) Virtue of Article II Treaties
      Available formats
      ×

      Send article to Dropbox

      To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Dropbox.

      Samsons or Methuselahs? The (Potential) Virtue of Article II Treaties
      Available formats
      ×

      Send article to Google Drive

      To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Google Drive.

      Samsons or Methuselahs? The (Potential) Virtue of Article II Treaties
      Available formats
      ×

Copyright

This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

References

Hide All

1 Loosely based on Handmade vs. Factory Made: Comparing Time and Cost, Industry Wk., Jan. 5, 2017.

2 If anyone is still waiting, patience!

4 Like Nyarko, I use “treaties” to mean Article II treaties. “Executive agreements” include congressional-executive agreements and “sole” executive agreements; I also include the relatively small number of treaty-implementing agreements, though Nyarko does not address these.

5 See, e.g., Oona A. Hathaway, Treaties' End: The Past, Present, and Future of International Lawmaking in the United States, 117 Yale L.J. 1236, 1241 (2008) (making “the case for a new direction: nearly everything that is done through the Treaty Clause can and should be done through congressional-executive agreements approved by both houses of Congress”).

6 Nyarko, supra note 3, at 60.

7 This is also clear from authority on which he relies. See Harold H. Koh, Treaties and Agreements as Part of Twenty-First Century International Lawmaking, in Digest of United States Practice in International Law 91, 91 (2012) (describing agreements as interchangeable insofar as they are “legally available options for binding the United States in its international relations”).

8 See, e.g., Restatement (Third) of the Foreign Relations Law of the United States, § 303(2) & reporters’ n.7 (Am. Law Inst. 1987).

9 Nyarko, supra note 3, at 66.

10 Id. at 60.

11 See Hathaway, supra note 5.

12 Lisa L. Martin, The President and International Commitments: Treaties as Signaling Devices, 35 Presidential Stud. Q. 440 (2005)

13 See, e.g., Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411 (2012).

14 See, e.g., Terry M. Moe & William G. Howell, The Presidential Power of Unilateral Action, 15 J. L. Econ. & Org. 132, 163 (1999).

15 Nyarko, supra note 3, at 79–81.

16 See Bradley & Morrison, supra note 13, at 474–75 (citing examples).

17 Nyarko, supra note 3, at 65.

18 Id. at 72–75.

19 Id. at 68. Martin regards reliability as meaning a president “who lives up to the terms of the agreement,” as a direct function of domestic political support for the agreement. Martin, supra note 12, at 446.

20 As he says, an expiration date might be partly determined by unreliability. Nyarko, supra note 3, at 68. But how much is unclear—nor will it be clear whether doubts center on the other party's reliability.

21 Id. at 77, 81–82.

22 Id. at 82–84.

23 Indeed, whether a non-self-executing treaty has been implemented by statute has no necessary impact on whether it stays in force. Hope is always around the corner.

24 For suggestive passages, see, for example, Nyarko, supra note 3, at 72, 84.

25 The difference between treaties and congressional-executive agreements might even be accentuated when ex ante authorization of the latter was older and less reliable as a signal of domestic support.

26 Nyarko, supra note 3, at 56, 84. Martin cites similar examples. Martin, supra note 12, at 448.

27 Phillip R. Trimble & Jack S. Weiss, The Role of the President, the Senate and Congress with Respect to Arms Control Treaties Concluded by the United States, 67 Chi.-Kent L. Rev. 645, 661–62 (1991).

28 Don Oberdorfer, SALT: The Tortuous Path, Wash. Post, May 11, 1979.

29 Amy F. Woolf, Cong. Research Serv., RL 31448, Nuclear Arms Control: The Strategic Offensive Reductions Treaty 3–4 (2011).

30 Seth Mydans, Marcos Flees and Is Taken to Guam; U.S. Recognizes Aquino as President, N.Y. Times (Feb. 26, 1986); see Rafael A. Porrata-Doria, Jr., The Philippine Bases and Status of Forces Agreement: Lessons for the Future, 137 Mil. L. Rev. 67 (1992).

31 Nyarko, supra note 3, at 75.

Recommend this journal

Email your librarian or administrator to recommend adding this journal to your organisation's collection.

AJIL Unbound
  • ISSN: -
  • EISSN: 2398-7723
  • URL: /core/journals/american-journal-of-international-law
Please enter your name
Please enter a valid email address
Who would you like to send this to? *
×

Metrics

Altmetric attention score

Full text views

Total number of HTML views: 0
Total number of PDF views: 0 *
Loading metrics...

Abstract views

Total abstract views: 0 *
Loading metrics...

* Views captured on Cambridge Core between <date>. This data will be updated every 24 hours.

Usage data cannot currently be displayed