Justice Kennedy and the Law of Treaties

Is Justice Kennedy a treaty lawyer? Listening to him yesterday during his speech to the 100th Annual Meeting of the American Society of International Law, you would think he’s at least been studying up on the subject. As Peggy pointed out, Justice Kennedy’s wide-ranging talk focused most closely on the problem of genocide, and his comments in that regard were forceful and impassioned. But, I also found Kennedy’s remarks interesting for his discussion of treaties generally, which he used to bolster his larger arguments about the need for states to act under the Genocide Convention when and wherever genocide occurs.

Specifically, Justice Kennedy presented two observations on treaties. First, he offered an historical defense of human rights treaties like the Genocide Convention, arguing that treaty-making had evolved from agreements about state relations, to agreements about how foreign citizens are treated in a state’s territory, to agreements about how a state treats its own citizens within its territory. Second, Justice Kennedy critiqued those who characterize treaty-making as a sacrifice of sovereignty. Kennedy mentioned a recent visit to Allen Weiner’s class at Stanford Law School, where the class discussion compared two individuals entering into a contract to two states concluding a treaty. Kennedy noted how lawyers do not suggest that the two individuals have sacrificed their basic freedoms in contracting; rather, we view their commitment as reflecting a freedom itself – i.e., the “freedom to contract.” Similarly, Kennedy argued we should not view treaty-making as depriving states of their sovereign powers, but rather as itself one of the sovereign powers states are free to exercise.

Now, Justice Kennedy’s points are not necessarily original or closed to debate. One might argue, for example, that the transformation of treaty subjects from inter-state relations to individual rights is more myth than historical fact. Individual rights of at least some citizens were guaranteed as far back as the Peace of Westphalia; thus, the Treaty of Osnabrück provided that subjects who had been debarred of worship in 1627 were explicitly granted the right to worship and educate in conformity with their faith. Similarly, although I’m sympathetic to the point, we can argue about whether the treaty/contracts analogy bears close scrutiny. I am of the mind that treaties are to contracts as baseball is to golf—although both involve swinging a stick to hit a ball, there’s not much cross-over among professionals who suggest that the swing for each game is entirely different.

Nevertheless, Kennedy’s comments were remarkable for their origin – a sitting Supreme Court justice opining not on how a treaty operates under the Constitution, but its larger historical and theoretical importance to the international legal arena. What remains to be seen is whether and how Kennedy takes such open praise of treaty-making into the Court’s jurisprudence, whether it’s the Geneva Conventions in Hamdan (see here and here) or the Vienna Convention on Consular Relations via Sanchez-Llamas/Bustillo. I, for one, suspect this might not be the last we’ve heard from Justice Kennedy on the importance of treaties.