
Contents
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I. Legislative Power and the Democratization of Treaty-Making I. Legislative Power and the Democratization of Treaty-Making
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II. Executive Power and the Emergence of Workarounds II. Executive Power and the Emergence of Workarounds
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III. Treaty Withdrawal and the Separation of Powers III. Treaty Withdrawal and the Separation of Powers
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IV. Judicial Involvement in Treaty-Making IV. Judicial Involvement in Treaty-Making
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V. Conclusion V. Conclusion
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8 Separation of Powers, Treaty-Making, and Treaty Withdrawal: A Global Survey
Get accessPierre-Hugues Verdier is a Professor of Law at the University of Virginia. He specializes in public international law, banking and financial regulation, and international economic relations. Professor Verdier is a graduate of the joint civil law and common law program of the Faculty of Law, McGill University, and obtained LL.M. and S.J.D. degrees from Harvard Law School. Prior to joining the faculty at the University of Virginia, he was a law clerk for the Supreme Court of Canada, an associate with Cleary Gottlieb Steen & Hamilton in New York City, and a Visiting Assistant Professor at Boston University School of Law. He has also been a Visiting Professor at the University of Chicago Law School and Harvard Law School.
Mila Versteeg is Professor of Law and the Director of the Human Rights Program at the University of Virginia School of Law. Her research and teaching interests include comparative constitutional law, public international law, and empirical legal studies. Her publications have, among others, appeared in the California Law Review, the New York University Law Review, the University of Chicago Law Review, the American Political Science Review, the American Journal of Political Science, the Journal of Legal Studies, the American Journal of International Law, and the Journal of Law, Economics and Organizations. Versteeg earned her B.A. in public administration and first law degree from Tilburg University in the Netherlands in 2006, her LL.M. from Harvard Law School in 2007, and a D.Phil. in sociolegal studies in 2011 from Oxford University. Prior to joining UVA Law, Versteeg was an Olin Fellow and lecturer in law at the University of Chicago Law School. Versteeg previously worked at the UN Interregional Crime and Justice Research Institute in Turin and at the Southern Africa Litigation Centre in Johannesburg.
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Published:13 June 2019
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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 data set that covers 101 countries for the period 1815–2013, the chapter identifies several large-scale trends. First, it confirms a sustained trend toward 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 “workarounds” 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.
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