Chapter

International Politics as Law?

in The Powers of War and Peace

Published by University of Chicago Press

Published in print October 2005 | ISBN: 9780226960319
Published online March 2013 | e-ISBN: 9780226960333 | DOI: http://dx.doi.org/10.7208/chicago/9780226960333.003.0006
International Politics as Law?

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Unlike the war power, the Constitution creates a specific process that governs the making of treaties. Under Article II, Section 2, the president cannot make a treaty without the consent of the Senate. Nonetheless, the constitutional text does not explicitly address a host of other questions, such as those surrounding treaty interpretation and termination, the legal effect of treaties as domestic law, and the interchangeability of treaties with other instruments of national policy. While this constitutional ambiguity has given rise to a dynamic of presidential initiative combined with senatorial and congressional participation through legislation and funding, it has also led some scholars to sharply criticize governmental practice as “counter to the language, and spirit, and history of … the Constitution,” in the words of Louis Henkin. Yet, as with the war power, a closer examination of the constitutional text and structure yields important insights.

Keywords: international politics; war power; constitutional text; treaty interpretation; domestic law; national policy

Chapter.  12568 words. 

Subjects: Constitutional and Administrative Law

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