Using Framework Statutes to Facilitate U.S. Treatymaking

Abstract

This paper examines the two tracks used by the United States to negotiate and approve international treaties - (1) the traditional treaty process requiring Senate consent by a two-thirds vote and (2) the newer fast track process used for trade agreements, requiring Congressional passage of a law to approve and implement the agreement. Several historical and current examples are used such as the Treaty of Versailles and the Kyoto Protocol on climate change. The paper explains why the latter process is superior in many ways, and asks whether it should be applied more broadly beyond the topic of trade. Three challenges to doing so are discussed. First, the paper considers whether the Congressional-Executive Agreement format used for trade agreements is constitutional. Second, the paper considers the democratic acceptability of approving treaties by law rather than by a supermajority in the Senate. Third, the paper points to the key ingredient for the trade approach which is a framework statute that sets an agenda for the trade negotiations in advance and sets the terms for implementation. The paper recommends the adoption of similar international negotiating framework legislation in other areas of international law such as environment, labor, intellectual property, and possibly human rights.

Keywords: international law, treaty, Congressional-Executive Agreement, Congress, President, international trade, WTO, U.S. Senate, democracy

JEL Classification: F1, J8, K33 L52 W72