Separation of Powers, Treaty-Making, and Treaty Withdrawal: A Global Survey

Oxford Handbook of Comparative Foreign Relations Law (Curtis A. Bradley ed., 2019, Forthcoming)

Virginia Public Law and Legal Theory Research Paper No. 2018-56

21 Pages Posted: 10 Oct 2018

See all articles by Pierre-Hugues Verdier

Pierre-Hugues Verdier

University of Virginia School of Law

Mila Versteeg

University of Virginia School of Law

Date Written: September 18, 2018

Abstract

This chapter examines from a comparative perspective the national legal regimes that govern treaty-making and treaty withdrawal, functions that in many countries were traditionally vested in the executive. Drawing from an original dataset that covers 101 countries for the period 1815-2013, the chapter identifies several large-scale trends. First, it confirms a sustained trend towards greater parliamentary involvement in treaty-making. Second, it shows that many countries recognize executive agreements and other alternative procedures through which the executive can conclude internationally binding agreements without parliamentary approval, but that these “work-arounds” are typically subject to significant constraints affecting the executive’s discretion and the domestic legal status of the resulting agreements. Third, it shows that in recent years several countries have introduced constraints on the executive’s ability to withdraw from treaties without parliamentary approval. Finally, it draws attention to the little-noticed role of national judiciaries in treaty-making, by showing that in many legal systems treaties are subject to constitutional review prior to ratification. The chapter discusses the implications of these four trends, all of which represent moves away from the executive-dominated world of traditional treaty relations. It hypothesizes that these trends respond to growing separation of powers concerns as treaties increasingly shape domestic law.

Keywords: treaties, treaty-making, treaty withdrawal, comparative foreign relations law, comparative international law, executive agreements, judicial review

Suggested Citation

Verdier, Pierre-Hugues and Versteeg, Mila, Separation of Powers, Treaty-Making, and Treaty Withdrawal: A Global Survey (September 18, 2018). Oxford Handbook of Comparative Foreign Relations Law (Curtis A. Bradley ed., 2019, Forthcoming); Virginia Public Law and Legal Theory Research Paper No. 2018-56. Available at SSRN: https://ssrn.com/abstract=3251582

Pierre-Hugues Verdier (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Mila Versteeg

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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