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Print This PageJustice 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.
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I see little harm in thoroughly exploring the treaty/contracts analogy as long as we keep in mind that it’s just that: an analogy. It’s interesting to consider, for example, whether there’s anything analogous to self-executing and non-self-executing treaties in contract law (I think there is, but that awaits another day). And what about the role of jus cogens and obligations erga omnes in international law and treaties? Is there something similar in contract theory? Most fundamentally, of course, the principle of pacta sunt servanda is likewise a fundamental tenet of contract law.
But perhaps far more consequential for understanding human rights vis-à-vis treaties is to examine the origins of both in natural law principles and values, an historical narrative too often obscured with the entrenchment of positivism in international law scholarship. It is with natural law that we find the first moral support and jurisprudential sanction for the notion of natural rights (all the way back to the Stoics), and it is the Lockean approach to inalienable rights related to this tradition that was of course appropriated by framers of the U.S. Constitution. We need a contemporay moral theory of international law on par with the historical function of Natural Law (perhaps in the natural law tradition, but in a moral and non-religious (sectarian) sense). The recognition of this, and one possible direction for such a theory, is found in the work of Allen Buchanan and David Golove (see their article in the Oxford Handbook fo Jurisprudence and Philosophy of Law, Coleman and Shapiro, eds., 2002).
It is not so much the ‘transformation of treaty subjects from inter-state relations to individual rights’ as it is the ethical and logical extension of legal personality in international law (this preserves the concept of sovereignty, but highlights its circumscription and thus limitations, as well as remind us of the Liberal principle of individual sovereignty in a moral sense). Of course the notion of absolute sovereign states was always a fiction both in theory and practice, going as far back as Bodin, for his sovereign was subject to the ‘laws of God, of nature, and of nations’ (there are other limitations: for instance, the sovereign could not levy taxes without consent, or treat the royal domain as conveyable private property). What is more, as Stephen Holmes reminds us, the power of Bodin’s sovereign was reinforced, rather than constrained by constitutional limitations! This is something to bear in mind when thinking of the international system of nation-states. As with Bodin’s sovereign, the restriction of the power of sovereign states (e.g. humanitarian intervention) may over time actually strengthen the system: ‘By allowing his power to be restricted in certain specific ways, a sovereign increases the likelihood of social compliance with his wishes’ (Holmes). The ideals and principles of philosophical and political Liberalism were partially recognized in conceding power to sovereign states on the Westphalian model, and those self-same principles and values can now be expanded and deepened on a global scale with the mechanisms and tools of an international law regime well cognizant of the limitations of the Westphalian model. To be sure, the mechanisms of enforcement are non-existent or in their infancy, emerging painfully slow in fits and starts. Kennedy is thus articulating here a key lesson of Holmes’ work on Liberalism: ‘…constitutional restrictions are less limits on, than expressions of, sovereign power and freedom’ [viewing for our purposes the constitution as the municipal law analogue of the international legal system]. As Holmes concludes, ‘Rules restricting available options can enable individuals and communities to achieve more of their specific aims than they could if they were left entirely unconstrained. Such is the democratic function of constitutional constraints.’ The lesson here, while applicable in the first instance to the constitutions of municipal law, is no less applicable to international law.
Finally, I think Kennedy is giving expression to the realization that ‘International law is much more than a simple set of rules. It is a culture in the broadest sense in that it constitutes a method of communicating claims, counter-claims, expectations and anticipations, as well as providing a framework for assessing and prioritizing such demands’ (Malcolm Shaw).
at 1:24 pm EST Patrick S. O'Donnell
Patrick – what would you think of an attempt to desecularise some of international law to see whether some of the theoretical weaknesses could be explored through such a project?
at 8:55 pm EST fdelondras
Perhaps I was not clear or have been misunderstood: I don’t see a need to desecularize international law but the need for a moral theory of international law constructed on something like natural law principles, principles not specific to any one particular religious tradition although perhaps the world’s major traditions could find sufficient internal reasons to support such principles (e.g., when religions agree to core principles of a ‘global ethic(s),’ hence closer to the Stoics than, say, Aquinas). Legal positivists and so-called political realists of Machiavellian or Hobbesian pedigree would see this as pointless, the concept of Natural Law for them lacking operative force and practical import (and of course here by ‘natural law’ I don’t mean ‘naturalistic law’). Natural law propositions are often claims ‘about what a human must be assumed to be, or how human beings must be treated if we are to assign abiding, universal, and meaningful status to being human; that is, if we are to regard all human beings (biologically defined) as rational and moral agents, or if we are to differentiate decisively between the human and other species of beings without detaching man entirely from nature’ (Raghavan Iyer, ‘The Open Texture of Natural Law,’ in Parapolitics: Toward the City of Man, 1979). Now if the historical and ideological baggage associated with Natural Law precludes according it a fair hearing, we might nonetheless agree with Allen Buchanan and David Golove as to the minimal desiderata for a normative theory of international law: ‘(1)an account of the moral point, or goals of the institution of international law, the most fundamental moral values it ought to serve, (2)an articulation of the moral reasons for supporting the institution of international law as a means of achieving those goals or serving those values, (3)a specification of the conditions under which the international legal system would be legitimate, at least in the sense of there being an adequate justification for the processes of creating and enforcing the rules of the system, (4)a statement of and justification for the most fundamental substantive principles of the system…. The needed justification would consist chiefly in showing how the implementation of these principles would further the basic moral goals or fundamental values of the system and that they would do so in morally acceptable ways.’ Martha Nussbaum’s ‘capablities approach’ to justice, which ‘begins from a theory of the good in terms of an account of basic human entitlements,’ may likewise prove fruitful by way of outlining a moral theory of international law (see her Frontiers of Justice: Disability, Nationality, Species Membership, 2006). More than enough said for now. I hope this clarifies things.
at 10:44 pm EST Patrick S. O'Donnell
It does, and it’s very close to what I was thinking about. Thanks
at 7:43 am EST fdelondras
I might have added Carol Gould to the above, as her recent book, Globalizing Democracy and Human Rights (2004) likewise provides the conceptual resources for a moral theory of international law, in this case, based on the axiological primacy of freedom (conceived in ‘social ontological’ terms) and from which a principle of justice is derived, or the principle of ‘equal positive freedom,’ namely, the principle of equal rights to the material and social conditions of self-development. And there are several contractarian theories I haven’t cited (of course Rawls, Pogge…) that are also plausible candidates for a moral grounding of international law. Much of the above is beholden in one way or another to Charles R. Beitz’s classic work, Political Theory and International Relations (1979; with afterword, 1999 ed.)
at 12:52 am EST Patrick S. O'Donnell
The fact that Associate Justice Kennedy’s comments here and elsewhere are regarded as noteworthy reflects, I suggest, the alarming success of the Scalia J/Federalist/etc view that international law somehow develops in isolation from the United States and should, for that reason, have little or no significance for its judiciary.
The contractual analogy – although, as you note, open to limitations – does highlight the fallacy of this view, not least by stressing United States involvement in and, ultimately, consent to broad human rights commitments.
The analogy also emphasises the consensual nature of these commitments, as borne out by the requirement of advice and consent, such that one could hardly suggest that the United States ratifies human rights treaties lightly: to take Justice Kennedy’s example, then Sen. Proxmire alone is recorded as having made several thousand representations in support of the Genocide Convention before United States accession.
Lastly, of course, the contractual analogy should serve as a reminder that these instruments are entered into by the states parties as serving common and/or mutual interests.
at 4:27 am EST Max
And yet we might examine, with Sarah Cleveland in her recent article in the Yale Journal of International Law, ‘Our International Constitution,’ the fact that ‘The historical record establishes that our constitutional tradition is significantly more receptive to international norms than is understood in the current scholarly and judicial debate. It is the critics and detractors from the practice, in other words, who are departing from tradition here. The rich dialogue between international law and constitutional norms, however, has been largely forgotten in contemporary constitutional discourse. A more complete and accurate historical understanding suggests that U.S. constitutional doctrines should be applied with greater sensitivity regarding international law. Justice Scalia has argued that it is “a Constitution for the United States of America that we are expounding.” The cases demonstrate, however, that international law has been a part of U.S. constitutional interpretation from the beginning and a principled approach to international law is fully part of the American tradition.’
What is more, one would think that even adherents to the ‘Scalia/Federalist/etc. view’ could appreciate the possibility that ‘International law…is a particularly useful device for certain kinds of states, namely those that are undergoing a transition to democracy. By bonding the government’s behavior to international standards and raising the price of deviation, international law commitments in the constitution may help to “lock in” democracy domestically by giving important groups more confidence in the regime. On the international plane, new democracies may lack credibility in terms of their ability to deliver on their promises, and more sophisticated provisions for international legal obligation can help to communicate widespread domestic support for international agreements. In both cases, international law helps to resolve commitment problems for new democracies that may not be as urgent for established democracies [?!] or continuing autocracies’ (from Tom Ginsburg’s draft paper, ‘Locking in Democracy: Constitutions, Commitment, and International Law,’ 1/17/06).
at 7:49 am EST Patrick S. O'Donnell