Books

Bradley Book Symposium: The Scope of the Treaty Power

In February of 1793, President Washington’s cabinet debated the negotiating instructions for a forthcoming treaty with Indian tribes in the Ohio region.  One issue was whether they could authorize the cessation of land back to the Indian tribes.  Thomas Jefferson took the view that this lay outside of the delegated powers of the federal government.  Alexander Hamilton responded “that the power of treaty was given to [the President and the Senate] by the constitution, without restraining it to particular objects, consequently that it was given in as plenipotentiary a form as held by any sovereign in any other society.”  After the other two cabinet members expressed views more in line with Hamilton than Jefferson, Washington urged them all to reach a consensus.  “He seemed to direct those efforts more towards me,” Jefferson recorded dryly, “but the thing could not be done.” Fast-forward to today – and we are still far from consensus on the exact contours of the treaty power in our constitutional system.  In a chapter on treaties in his excellent new book, International Law in the U.S. Legal System, Professor Curtis Bradley provides a doctrinal map of the treaty power, complete with thoughtful assessments of the level of certainty that attaches to each feature.  In this blog post, I’ll briefly describe Professor Bradley’s overall approach, then focus more specifically on Professor Bradley’s discussion of the scope of the treaty power, and close with a few remarks on the Bond case now pending in the Supreme Court.

Bradley Book Symposium: David Moore comments on Treaties

[David Moore is Professor of Law at BYU Law] Curtis Bradley’s “International Law in the U.S. Legal System” is a welcome and significant contribution to U.S. Foreign Relations Law.  Like Louis Henkin’s “Foreign Affairs and the United States Constitution,” it will be a resource that scholars will want to consult and cite as well as recommend to their students and have on reserve. The portion of the book on treaties addresses a wide-range of topics from treaty creation to non-self-execution to termination.  In addition to providing a clear overview of these topics and the sometimes unsettled questions they present, the discussion reveals an unspoken theme only partially captured by the book’s title.  Given its focus, the book is appropriately titled “International Law in the U.S. Legal System,” but the treatment of international law in U.S. law reveals that the interaction between U.S. and international law is not unidirectional.  International law affects U.S. law, even U.S. constitutional law, but U.S. law also affects international law. On the incoming side of the relationship, international law produces a range of effects on the domestic legal order.  Most passively, international law presents questions that domestic law must answer.  For example, Bradley notes that the international law of treaties recognizes that state parties may terminate their agreements under certain circumstances, such as material breach of a bilateral agreement.  The international law option to terminate raises the question of who within the domestic order can exercise that option.   Moreover, international law might go further and influence the answer to that question as the nature of international law may functionally favor a particular actor as the one best suited to exercise the termination power.  This sort of effect has arguably occurred in the context of determining the subject matter scope of the treaty power.  Bradley notes repeated historical suggestions that treaty-making might extend only to certain types of treaties or at least to matters of international concern.  International law, however, defines “treaty” very broadly by reference to the nature of the contracting parties and the obligations assumed, largely without reference to subject matter restraints.  Consistent with this approach, treaty-making has spanned a vast range of issues.  The breadth of international treaty-making is almost certainly a contributing factor to the current sense that the Constitution does not impose subject matter limitations on the treaty power.  With the Supreme Court positioned to address subject matter limitations on the treaty-making power next term in Bond v. United States, the link between international law and domestic definition of the treaty power may be broken.  At this point, however, the connection is apparent.

The Oxford Guide to Treaties Symposium: Comparing International and US Approaches to Interpretation

[Jean Galbraith is Assistant Professor at Rutgers-Camden School of Law] Congratulations to Duncan Hollis and the contributors to The Oxford Guide to Treaties [OGT].  This is a magnificent volume -- one that fully lives up to its aim of “explor[ing] treaty questions from theoretical, doctrinal, and practical perspectives.”  For an edited volume, it is a remarkably coherent treatise.  Personal views of...

The Oxford Guide to Treaties Symposium: Starting a Conversation on Interpretation

For the past 15 years courts, tribunals, practicing lawyers and academics concerned with treaty interpretation have been paying increasing attention to the three articles on the topic in the 1969 Vienna Convention on the Law of Treaties. Because the International Law Commission as architect of these provisions confined their drafts to what they saw as general principles, stated laconically and...

The Oxford Guide to Treaties Symposium: Validity of Reservations Revisited

[Marko Milanovic is Lecturer at the University of Nottingham School of Law] I am grateful to Duncan for inviting me to contribute to this conversation, inspired by his important new book. Let me continue where David Stewart and Harold Koh left off, namely with the issue of the validity of reservations and the innovations in that regard in the ILC's freshly...

The Oxford Guide to Treaties Symposium: What Happens if a Treaty Reservation is Invalid?

[Harold Hongju Koh is the Legal Adviser, U.S. Department of State.] Professor Duncan Hollis’ magisterial new book, The Oxford Guide to Treaties, collects an enormously useful amount of up-to-the-minute scholarship on myriad pressing questions of international treaty law. Its publication comes at a particularly opportune moment, as the International Law Commission’s (ILC’s) Guide to Practice on Reservations to Treaties was finalized by the...