Treaties, Human Rights, and Conditional Consent

62 Pages Posted: 30 May 2000  

Curtis A. Bradley

Duke University School of Law

Jack Landman Goldsmith III

Harvard Law School

Date Written: May 2000

Abstract

The U.S. treaty-makers have consistently attached conditions to their consent to modern human rights treaties, in the form of reservations, understandings, and declarations ("RUDs"). Through these RUDs, the treatymakers have sought to limit their consent to international obligations that the United States is constitutionally and politically able to comply with, and to ensure that these obligations are implemented in a manner consistent with principles of separation of powers and federalism. The conventional wisdom among scholars is that the RUDs are invalid under international law and U.S. domestic law, and are harmful to the international human rights movement. This Article challenges the conventional wisdom about RUDs. It argues that the RUDs serve as a useful bridge between isolationists who want to preserve the United States' sovereign prerogatives, and internationalists who want the United States to increase its involvement in international institutions -- a political divide that has had a debilitating effect on U.S. participation in international human rights regimes since World War II. In addition, RUDs help reconcile fundamental changes in international law with the requirements of the U.S. constitutional system. The RUDs achieve these ends in ways that are valid under both international and domestic law.

Suggested Citation

Bradley, Curtis A. and Goldsmith, Jack Landman, Treaties, Human Rights, and Conditional Consent (May 2000). Pennsylvania Law Review, Vol. 149. Available at SSRN: https://ssrn.com/abstract=224298 or http://dx.doi.org/10.2139/ssrn.224298

Curtis A. Bradley (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

Jack Landman Goldsmith III

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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