Executive Agreements Research Articles

DEVELOPMENT OF PRİORİTİES AND PROSPECTS OF RENEWABLE ENERGY SOURCES IN AZERBAIJAN

DEVELOPMENT OF PRİORİTİES AND PROSPECTS OF RENEWABLE ENERGY SOURCES IN AZERBAIJAN

Constitutionality analysis of amendments to the Protocol on Environmental Protection on the Antarctic Treaty Annexes.

Antarctic environmental and climatic conditions have repercussions in Brazil and South America and are a central focus of concern as their balance may be affected. Therefore, legal instruments of environmental protection such as the Protocol on Environmental Protection to the Antarctic Treaty are fundamental. To streamline its application, the Protocol foresees accelerated mechanism for the approval and entry into force of "Measures" that modify provisions in its Annexes. This basis makes it unnecessary to submit amendments to domestic processes of international treaties approval in member countries of the Antarctic Treaty - in the case of Brazil, National Congress approval. This could give rise to a violation of Articles 49, item I, and 84, item VIII, of the 1988 Brazilian Constitution. This paper claims that there is no violation. This conclusion was based on an approach that supports constitutionality based on formal foundations and interpretation of the law, so that, mainly, the provisions and norms arising therefrom are understood in the context of Executive Agreements. The methodological construction is supported by the deductive method and assumes that the research hypothesis is controlled.

Inferior Domestic Treaty Institutions Lead to Less Democracy and Security: The Case of the United States

ABSTRACT At present, the United States institution handling international agreements is replete with uncertainty about the precise role of different branches of the government and the rules government actors are to follow. The result is inferior democratic rule and a worse bargaining position in world affairs. This article surveys the institution’s current problems with treaties, congressional-executive agreements, and sole executive agreements. It explains the judicial response and why historical practice has not led to a resolution, but an exacerbation of problems. It lays out the costs of these problems and articulates how cementing the Senate’s role in agreements would greatly augment both democarcy and security.

Grand corruption scandals in the Philippines

PurposeThe purpose of this article is to analyse the weaknesses of governance institutions in constraining grand corruption arising from the government procurement of large foreign-funded infrastructure projects in the Philippines. The weaknesses are revealed in the description and analysis of two major scandals, namely, the construction of the Bataan Nuclear Power Plant during the Marcos era and the National Broadband Network project of the Arroyo presidency.Design/methodology/approachThis research employs a historical and comparative case approach to explore patterns of grand corruption and their resolution. Primary and secondary data sources including court decisions, congressional records, journal articles and newspaper reports are used to construct the narratives for each case.FindingsTop-level executive agreements that do not require competitive public bidding provide an opportunity for grand corruption. Such agreements encourage the formation of corrupt rent-seeking relationships involving the selling firm, brokers, politicians and top-level government executives. Closure of cases of grand corruption is a serious problem that involves an incoherent and politically vulnerable prosecutorial and justice system.Originality/valueThis paper aims to contribute to research on grand corruption involving the executive branch in the Philippines, particularly in the procurement of large, foreign-funded government projects. It examines allegations of improprieties in government project contracting and the politics of resolving corruption scandals through the justice system.

The Failed Transparency Regime for Executive Agreements: An Empirical and Normative Analysis

The Constitution specifies only one process for making international agreements. Article II states that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” The treaty process has long been on a path to obsolescence, however, with fewer and fewer treaties being made in each presidential administration. Nevertheless, the United States has not stopped making international agreements. Even as Article II treaties have come to a near halt, the United States has concluded hundreds of binding international agreements each year. These agreements, known as “executive agreements,” are made by the President without submitting them to the Senate, or to Congress, at all. Congress has responded to the rise of executive agreements by imposing a transparency regime — requiring that all the binding executive agreements be reported to Congress and that important agreements be published for the public to see. Until now, however, there has been no systematic assessment of how well the transparency regime has been working. This Article seeks to fill that gap. Through a Freedom of Information Act lawsuit, we obtained thousands of documents relating to the agreements reported to Congress and the legal authority on which the executive branch has relied forthese agreements. Together with a series of interviews with lawyers directly involved in the process, this new information has given us an unprecedented look inside the system of concluding, publicizing, and reporting executive agreements. For the first time, we can describe how the system for making and scrutinizing executive agreements actually works — and when and how it fails to work. The overall picture that emerges is one of dysfunction and nonaccountability. In brief: there is reason to believe that the executive branch’s reporting to Congress has been incomplete; the entire publication and reporting process is opaque to everyone involved, including executive branch officials and congressional staffers; and Congress is failing in its oversight role. The “system” is badly in need of repair if we are going to preserve the integrity and legality of the United States’ primary means of making international commitments.

Unilateralism and Polarization: How Changes in Our Structural Constitution Have Caused Political Divisiveness

Political polarization is perhaps the great political problem of our time. While it has many sources, one of its most important causes, which has not been previously discussed, is the deformation of our governmental structure. That structure has been transformed from an arrangement where consensus was needed to enact important policy changes to one where the President or the Supreme Court can adopt such change unilaterally. This transformation has greatly contributed to political polarization. Congress’s delegation of authority to administrative agencies to make policy allows the President’s administration to make important regulations. Because the President represents the median of his party, not of the nation, his agents' decisions normally are more extreme than what would emerge from the congressional political process, particularly when, as is usually the case, the houses of Congress and the President are divided between the parties. Similarly, presidential claims of authority to engage in military interventions and to make substantial international agreements on their own – rather than with congressional authority as the Constitution requires – require no political consensus even on decisions of fundamental importance to the nation. Finally, the Supreme Court’s arrogation to itself of the power to create or eliminate rights also forestalls compromise, infuriating those who disagree with its ukases. These diverse constitutional departures have a common effect: They generate extreme outcomes, promote polarization, and block the dialogue that can lead to fruitful compromise. Understanding the institutional roots of polarization provides a roadmap to tempering our current discontents. Delegation should be curbed, forcing Congress to make the key decisions. The President's initiation of hostilities and executive agreements should be allowed only if they are swiftly ratified by Congress. The Supreme Court should refrain from creating or eliminating rights, leaving fundamental change to the constitutional amendment process. None of these reforms require us to begin the world anew, but instead to return to tried and tested structures. They would also transform our political culture. In a politics where compromise is routinely required, citizens would become less polarized, seeing each other less as targets or threats and more as partners in a common civic enterprise.

A Future for Paris? Federalism, the Law of Nations, and U.S. Courts

The 'We Are Still In' movement raised novel and urgent questions about the status of executive agreements, treaties, and customary international law in U.S. courts. As sub-national governments increasingly face difficult trade-offs between climate change mitigation and adaptation, American courts will confront challenges thereto likely grounded in various types of dormant preemption of state and local initiatives. This symposium essay argues that our courts must first situate sub-national actions on climate mitigation within a complex and evolving context of mitigation as a globally-scaled collective good that can only be provided if contributions thereto accumulate over time. They must also avoid lumping sub-national action advantaging some firms in a competitive market under the old unionist fears of protectionism in all things local. A bottom-up movement like 'We Are Still In' may be uniquely positioned to keep the nation's pledges on climate change mitigation — and its obligations under U.S. treaties and public international law — but only if our courts understand the stakes and the fine print of our foreign affairs federalism.

РОЗВИТОК МІЖНАРОДНОГО СПІВРОБІТНИЦТВА УКРАЇНИ У СФЕРІ КІБЕРБЕЗПЕКИ

No state is capable of effectively alone counteracting the growth, number, scale, intensity, complexity of cyber incidents and cyber threats. This necessitates international cooperation in cybersecurity and cyber defense, joining forces and means to reduce the level of cyber threats to citizens, society and the state. The purpose of the article is to analyze the experience of Ukraine on the organizational and legal mechanisms of international cooperation in the field of cybersecurity in order to improve the relevant national mechanisms of public administration. One of the priorities of the national policy of national security, its integral component of cybersecurity, European and Euro-Atlantic integration is international cooperation, which should organically complement other areas of this policy. Adoption, implementation and application of international standards, in particular those of the European Union and NATO, are among the main ways of ensuring the effective functioning of the national cybersecurity system. In Ukraine, several state authorities, public and professional associations and organizations, business structures, and industry regulators are engaged in international cooperation in the field of cybersecurity. This requires their proper coordination. In order to increase the efficiency, effectiveness and validity of governmental decision-making, a Governmental Committee on European, Euro-Atlantic Integration, International Cooperation and Regional Development has been established within the Cabinet of Ministers of Ukraine, and designated ministrys’ coordinators.But only six ministries cooperate within the framework of concluded agreements or international executive agreements of Ukraine within the framework of the Association Agreement with the European Union or within the framework of the 1997 Charter on a Distinctive Partnership.Cooperation with the EU is being carried out more and more through the EU’s Eastern European Partnership initiative and is constantly evolving. Despite the adoption of the Law of Ukraine «On the Main Principles of sustainment of Cybersecurity of Ukraine», Ukraine’s capabilities do not meet the modern requirements sufficiently and need improvement: - organization of the national cybersecurity system; - receipt of international technical assistance by cyber-security entities, their proper coordination, applicability, appropriateness and adequacy of modern requirements, responsibility for their receipt and usability; - enhancement of professional skills not only of cybersecurity professionals but also of other employees of state bodies, enterprises and organizations; - protocols of interaction and information on cyber incidents both in Ukraine and foreign partners.

Unratified Treaties and the Constitutionality of Signatory Obligations: A Conceptual Solution

This Essay seeks to examine the constitutionality of observing signatory obligations to an unratified treaty. Part II provides a brief background of U.S. treaty law, including executive agreements. This is essential to understanding why the President cannot always reclassify an unratified treaty as a sole-executive agreement to unilaterally create domestic obligations through the treaty-negotiation process. Part III explains signatory obligations to an unratified treaty under the Vienna Convention on the Law of Treaties, customary international law, and American law. Part IV explains the constitutional issues implicated by observing signatory obligations to unratified treaties in greater detail and provides examples of how some scholars have attempted to resolve them. This Essay argues that each of the proposed solutions falls short of an ultimate resolution. Part V provides a conceptual solution acknowledging presidential power in some situations invoking Article 18 of the VCLT. This conceptual solution considers the obligation to refrain from acts frustrating the “object and purpose” of a treaty as subject to Congress's enumerated authority over the law of nations. Part V then examines the history of congressional acquiescence to executive authority in light of Supreme Court jurisprudence to determine the constitutionality of presidential acts observing and enforcing signatory obligations to unratified treaties.

Congress's Power to Constrain Presidential Withdrawal from International Agreements: A Working Paper

This working paper aims to assess the tools available to Congress to restrict or constrain the President’s capacity to withdraw from international agreements. Many assume that Congress has little or no power to restrict withdrawal from treaties and, in practice, that has proven largely true. But this paper tries to explore more fully whether there any ways in which Congress can act — either in advance or in the moment — to restrict, slow, or even stop withdrawal. The paper is organized according to the ways in which the United States makes international commitments: (1) Article II Treaties; (2) Congressional-Executive Agreements; (3) Sole Executive Agreements; and (4) Non-Binding Commitments (which are not, technically speaking international agreements, but nonetheless are worthy of consideration given their growing prominence in the U.S. diplomatic sphere). The paper briefly assesses each in turn.

Duration ≠ Seriousness of Commitment: An Empirical and Theoretical Critique of Nyarko's Treaties vs. Executive Agreements

In “Giving the Treaty a Purpose,” Julian Nyarko distinguishes between treaties and executive agreements and argues that treaties signal a higher level of commitment to our partners in cooperation than do executive agreements because treaties are more durable. Nyarko uses survival-time analysis to demonstrate that treaties last longer than executive agreements—that is, treaties are less likely to drop out of the Treaties in Force (TIF) series in any given year. The longer life of treaties is Nyarko's proxy for their greater durability. Nyarko argues that his result holds “even after controlling for a number of covariates that could influence the durability of the agreement,” like particular presidents, subject areas, and partner countries as well as the degree of divided government. Nonetheless, Nyarko's list omits the most important variable affecting durability as he defines it: intended duration. Sometimes the intended duration of a piece of formal international law is finite. Indeed, as I will explain in this response, under certain (and common) conditions, this choice of a finite duration is what makes the commitment credible (or, in Nyarko's language, reliable).

Senate Treatment of Select International Agreements, 2013–2018

When I finished reading Julian Nyarko's “Giving the Treaty a Purpose: Comparing the Durability of Treaties and Executive Agreements,” I found my mind wandering through memories of the more than five years I spent working on Capitol Hill as Counsel for the Senate Foreign Relations Committee (SFRC)—a role that often required me to figure out how best to preserve the constitutional prerogatives of Congress in the face of the various types of international agreements the executive branch produced. This essay recounts my impressions of how the Senate handled different agreements in the 2013–2018 timeframe—Article II treaties, the Paris Climate Agreement, and the Iran Nuclear Agreement. Unlike Professor Nyarko's ambitious and impressive work to categorize and statistically analyze the durability of Article II treaties and executive agreements—which I applaud and find useful—this essay is modest in purpose. I contend that how Congress handles different types of agreements is largely a product of specific political dynamics—including political ownership, policy entrepreneurism, and electoral risk—that can be unpredictable. Because of these dynamics, the differences that Nyarko reveals regarding the durability of Article II treaties and executive agreements are unlikely to produce a significant change in official practice.

Samsons or Methuselahs? The (Potential) Virtue of Article II Treaties

Why does Wüsthof sell a fancy kitchen knife for US$2000, but mass-produce something similar for US$100? Why do some of us mail holiday cards, while sending anything similar by email? Why does the American Journal of International Law print its journal, when interested readers—and there should be many—can read articles like Julian Nyarko's “Giving the Treaty a Purpose: Comparing the Durability of Treaties and Executive Agreements” online? Come to think of it, why bother with Article II treaties, when they too have a near substitute, more easily produced, in congressional-executive agreements? On this last question, Nyarko's article offers an interesting approach and an intriguing finding: if we measure the commitment strength of agreements in terms of duration, treaties are measurably longer and, perhaps, stronger. Having spent several years working on treaty issues for the Restatement (Fourth) of the Foreign Relations Law of the United States, I am acutely (and perhaps embarrassingly) interested in finding out why they matter. In this essay, I note some misgivings about how the article reckons the substitutability of agreements and about treating their age as a proxy for strength—perhaps Methuselah rivaled Samson's might at some point, but that was not how he distinguished himself—before closing by trying to imagine rival inferences that might be consistent with Nyarko's valuable insights.

Giving the Treaty a Purpose: Comparing the Durability of Treaties and Executive Agreements

AbstractScholars have argued that Senate-approved treaties are becoming increasingly irrelevant in the United States, because their role can be fulfilled by their close but less politically costly cousin, the congressional-executive agreement. This study demonstrates that treaties are more durable than congressional-executive agreements, supporting the view that there are qualitative differences between the two instruments. Abandoning the treaty may therefore lead to unintended consequences by decreasing the tools that the executive has available to design optimal agreements.

Introduction to the Symposium on Julian Nyarko, “Giving the Treaty a Purpose: Comparing the Durability of Treaties and Executive Agreements”

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The Decline of Treaties? Obama, Trump, and the Politics of International Agreements

The use of Article II treaties declined significantly during the Obama presidency, as Obama submitted far fewer treaties to the Senate for approval than his predecessors. In 2015, Secretary of State Kerry remarked, “You can’t pass a treaty anymore.” Obama hardly even tried. Trump entered office clearly hostile toward treaties for different reasons, ordering a reassessment of all multilateral agreements. Trump has yet to submit a treaty, suggesting a continuation of Obama’s use of other unilateral devices, including executive and political agreements. Trump’s hostility extends to other forms of agreements that Obama managed to complete, including the Paris Agreement on Climate Change and the Iran Nuclear Agreement, as well as trade agreements. I assess the broader historical record of international agreements, including treaties, executive agreements, and political agreements, to evaluate the current state of these various diplomatic instruments. I examine several key international agreements is some detail. Clear evidence supports the notion that Obama’s unilateralism on international agreements has solidified under Trump, though Trump’s efforts are more focused on undoing Obama’s diplomacy rather than expanding American participation in international law. The implications of these changes for US foreign policy and shared power are discussed.

Giving the Treaty a Purpose: Comparing the Durability of Treaties and Executive Agreements

Scholars have argued that there is little use in the treaty instrument as a modern policy tool and that the executive agreement is a more reliable commitment device that comes at a reduced cost. This study uses survival time analysis to demonstrate that agreements concluded in the form of a treaty are more durable than those concluded as executive agreements. The analysis suggests that this is the result of increased political costs imposed by the treaties' Advice and Consent procedure. Together, the findings imply that treaty usage signals a higher level of commitment than executive agreements. Abolishing the treaty would lock negotiators out of the possibility to indicate their intended level of compliance, potentially leading to fewer agreements with less favorable terms.

A Study on CLOUD Act and Executive Agreements Thereunder Regarding Extraterritorial Access to e-evidence

A Study on CLOUD Act and Executive Agreements Thereunder Regarding Extraterritorial Access to e-evidence

How Zivotofksy II and the Conservative Divide Over the Foreign Affairs Power Could Impact the Trump Administration

In 2015, the United States Supreme Court held in Zivotofsky v. Kerry (Zivotofksy II) that the President of the United States possesses the exclusive power under the Constitution to recognize foreign sovereigns. The holding allegedly marked the first time in the nation’s history when the Supreme Court “accepted a President’s direct defiance of an Act of Congress in the field of foreign affairs.” Although the case was (in theory) limited solely to the recognition power, Ziovtofsky II had (and still has) significant implications for the doctrine of separation of powers and executive power generally. For example, the case marked a rare instance where the Court upheld presidential action in a Justice Jackson tier three scenario. In that light, the case serves as an additional stamp of approval on an ever-increasing power grab by executives, particularly in the field of foreign affairs. Whether it be sending troops abroad (without a congressional declaration of war or authorization of the use of force), negotiating and concluding sole executive agreements (instead of treaties), or choosing to recognize a foreign sovereign (against the will of Congress), the scope of the foreign affairs power is incredibly significant to the United States and the international legal order. Two recent events warrant revisiting Zivotofsky II. First, in November 2016, the United States elected Donald J. Trump as president. Without commenting on the legitimacy of Trump’s policy stances on issues of foreign affairs, the reality is that many — on both the left and right — believe that one of the greatest dangers to the United States and the world as a whole is those positions. Thus, while the scope of the foreign affairs power is critical regardless of who is President, Zivotofksy II’s claim of an exclusive presidential power, and especially one in the field of foreign affairs, becomes even more critical in light of a Trump presidency. This Article discusses some of the direct impacts that Zivotofksy II could have for the Trump administration. Additionally, Justice Gorsuch has replaced Justice Scalia. What makes Justice Scalia’s death so critical for the foreign affairs power is that the position he took in his dissent in Zivotofksy II, which was joined by Chief Justice Roberts and Justice Alito, may not be shared by Justice Gorsuch, and it is certainly not shared by Justice Thomas. Thus, conservatives could be divided over the scope of the foreign affairs power on some key issues, including immigration and terminating treaties, for the Trump administration.

The Study on US Trade Promotion Authority and the Reflections on the Treaty-making Procedures in China

The treaty-making is one of the most important foreign affairs of sovereign states. The power of foreign affairs laid down in US Constitution is relatively blurring and the Congress’s ratification processes are complicated and inefficient. As a result, the President has to find other methods, such as concluding executive agreements with foreign countries, so as to improve the efficiency of treaty-making. However, the Congress may boycott these executive agreements. The Trade Promotion Authority has empowered the President more discretions and also promoted good cooperation between the President and the Congress. Through a detailed study and analysis of Trade Promotion Authority, this paper tries to make some valuable suggestions to the development trend of treaty-making in China, taking its current circumstances into consideration.