Chapter

Laws as Treaties?

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/9780226960333.003.0008
Laws as Treaties?

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Despite the fact that the constitutional text includes a specific Treaty Clause but no other means to enter into international agreements, a broad intellectual consensus exists that congressional–executive agreements may serve as full substitutes for treaties. Louis Henkin, for example, has written that “it is now widely accepted that the Congressional–Executive agreement is available for wide use, even general use, and is a complete alternative to a treaty.” This is known as the idea of “interchangeability”: statutes are interchangeable with treaties. Bruce Ackerman and David Golove share this view, but only if one agrees with their theory that the Constitution can be amended without actually adopting an amendment; without their theory, congressional–executive agreements are unconstitutional. Some, however, such as Laurence Tribe, argue that the Treaty Clause is exclusive and that congressional–executive agreements violate the Constitution's supermajority requirements for treaties.

Keywords: international agreements; statutes; constitutional text; congressional–executive agreements; Constitution

Chapter.  15845 words. 

Subjects: Constitutional and Administrative Law

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