An Intersubjective Treaty Power

by Duncan Hollis

Ian Henderson may be mad at me.  He asked for fewer posts on foreign relations.  But he also asked for more posts on treaties.  I have a new paper up that tackles both topics — An Intersubjective Treaty Power.  For those of you who are interested in such things, here’s the abstract:

Does the Constitution require that U.S. treaties address matters of international concern? For decades, conventional wisdom answered that question negatively; The Restatement (Third) of U.S. Foreign Relations Law dismissed the very existence of an international concern test. In Bond v. United States, however, three Justices – Alito, Thomas, and Scalia – insisted on its existence, pushing the issue into the foreground of foreign relations law.

This article analyzes whether the Constitution contains an international concern test and what contours it has. I argue that Justices Alito, Scalia and Thomas are correct – and the Restatement (Third) was wrong – on the test’s existence. Various modalities of constitutional interpretation – original meaning, historical practice, doctrine, structure, and prudence – offer evidence supporting some version of an international concern test. But I part ways with the Justices on how the test works. They and other proponents have tended to look for static or objective criteria to divide appropriate “international” matters from impermissible “purely domestic” ones.

In contrast, I argue that the international concern test is intersubjective. U.S. treaties can only be formed (or ratified, implemented, or applied) where the relevant actors at each stage (e.g., States in forming a treaty, the President and the Senate in ratifying it) share a belief that its subject-matter is international. Absent that understanding, the treaty will not be formed (or ratified, or implemented, or applied). Such views may coincide or divide depending on the context. Thus, the Supreme Court could agree that the Chemical Weapons Convention generally addressed a matter of international concern, even if they also agreed that the prosecution of Ms. Bond did not. Nor are these understandings fixed; issues need not be “purely” domestic (or international) for all time. Some topics such as human rights were once understood by States (and the President and the Senate) to be inappropriate subjects for treaty-making, but are now believed to be an essential aspect of international relations. Other topics such as Native American relations were once subject to extensive treaty treatment, but are now no longer accepted as appropriate subjects for U.S. treaties.

This article thus answers one of the longest running questions of U.S. foreign relations law. It confirms the existence of an international concern test, but locates its operation within the treaty process rather than in an externally-imposed laundry list of topics or criteria. In doing so, it provides an explanatory lens for a U.S. treaty practice that many label incoherent and suggests a need for more research on what conditions generate intersubjectivity (or its absence).

5 Responses

  1. If there is a treaty, it IS of international concern, period.

  2. Duncan,

    One the one hand, your post seems to be about US constitutional law, not treaties per se.

    On the other hand, there is concurrently both the Australian open tennis final and the Australian One Day Series cricket final on free-to-air TV.

    On balance, I am not mad.

    For a bit of comparative law, the issue also resonates in Australia as once the Commonwealth government enters into a treaty, then the Commonwealth government can enact legislation under the ‘external affairs’ power in the Constitution. The net result is that the Commonwealth can ‘expand’ its legislative reach vis-a-vis the States through entering into treaties.

  3. Jordan,

    How does the separation of legislative powers between the Federal and various State governments in the US work? For example, if Australia and the US entered into a treaty to harmonise the definition of marriage (am I right in thinking that is currently a State issue in the US?), would that give Congress the power to conclusively legislate on the issue?

  4. Ian — yes, federal states like the United States and Australia (and Canada) frequently face the question of how treaty-making impacts sub-national authorities. In the U.S., marriage is currently an issue the U.S. Supreme Court is addressing so it’s status as a state-only matter is murky at best (at least insofar as the state’s ability to prohibit gay marriage is concerned). The question in the U.S. v. Bond case was precisely whether Congress can legislate to implement a treaty in excess of its own enumerated powers. The Court ducked the issue in that case, so for now, Missouri v. Holland remains the law (i.e., Congress does have the power to implement treaties without regard to states’ rights).

  5. Ian: Yes. There are numerous U.S. cases that recognize the reach of treaties to matters that a state within the U.S. has a keen interest, primarily because of the Supremacy Clause and the Tenth Amendment. See (at pages 315-324 and cases cited). The Tenth recognizes that the states have (1) powers not delegated to the United States by the Constitution, and (2) nor prohibited by it to the sates. Under the U.S. Const., the treaty power has been delegated to the U.S. and has also been precluded for the states in Art. I, sec. 10.

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