An Intersubjective Treaty Power

50 Pages Posted: 14 Jan 2015 Last revised: 7 Feb 2015

Duncan B. Hollis

Temple University - James E. Beasley School of Law

Date Written: January 9, 2015

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).

Keywords: treaty, treaties, treaty power, intersubjectivity, intersubjective, federalism, constitution, foreign relations law, states rights, international concern, treaty formation, ratification, private international law, human rights, native american relations

JEL Classification: K00, K19, K33

Suggested Citation

Hollis, Duncan B., An Intersubjective Treaty Power (January 9, 2015). Notre Dame Law Review, Vol. 90, No. 4, 2015; Temple University Legal Studies Research Paper No. 2015-05. Available at SSRN: https://ssrn.com/abstract=2548762

Duncan B. Hollis (Contact Author)

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States

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