Bond, the Treaty Power, and the Overlooked Value of Non-Self-Executing Treaties

25 Pages Posted: 9 Apr 2015 Last revised: 5 May 2015

See all articles by Julian Ku

Julian Ku

Hofstra University - School of Law

John Yoo

University of California at Berkeley School of Law; American Enterprise Institute; Stanford University - The Hoover Institution on War, Revolution and Peace

Date Written: April 8, 2015

Abstract

Non-self-executing treaties are common today, but they have often been subject to criticism by scholars concerned about weakened U.S. compliance with international obligations or inconsistency with the Constitution's Supremacy Clause. We take a different view. In past work, we have explained that the best reading of the Constitution's text, structure and history favors non-self-executing treaties. They allow the accommodation of robust international commitments with the requirements of the U.S. constitutional system. In this paper, we go farther and argue that non-self-executing treaties could also benefit (rather than undermine) international cooperation by the U.S. International relations scholars have found that the lack of a credible enforcement mechanism is an obstacle to successful international cooperation. In an anarchic international system, states need ways to credibly signal commitment to their promises of cooperation. The implementing legislation required for a non-self-executing treaty signals a U.S. commitment even more credible than if it had merely ratified the treaty via the Senate. Not only does implementing legislation reveal more information about the US's intention to complete with a treaty, it also cannot be as easily undone as a treaty under the domestic political process. Non-self-execution offers a tool to the treaty makers that helps overcome the obstacles to reaching international bargains in an anarchic international system.

JEL Classification: K10, K33

Suggested Citation

Ku, Julian G. and Yoo, John Choon, Bond, the Treaty Power, and the Overlooked Value of Non-Self-Executing Treaties (April 8, 2015). Notre Dame Law Review, Vol. 90, 2015; Hofstra Univ. Legal Studies Research Paper No. 2015-03; UC Berkeley Public Law Research Paper No. 2591879. Available at SSRN: https://ssrn.com/abstract=2591879

Julian G. Ku (Contact Author)

Hofstra University - School of Law ( email )

121 Hofstra University
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United States
516-463-4237 (Phone)
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John Choon Yoo

University of California at Berkeley School of Law ( email )

Boalt Hall
Berkeley, CA 94720-7200
United States
510-600-3217 (Phone)
510-643-2673 (Fax)

American Enterprise Institute ( email )

1789 Massachusetts Ave., N.W.
Washington, DC 20036
United States

Stanford University - The Hoover Institution on War, Revolution and Peace ( email )

Stanford, CA 94305-6010
United States

HOME PAGE: http://https://www.hoover.org/profiles/john-yoo

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