The Political Theory of Treaties in the Restatements of Foreign Relations Law
59 Pages Posted: 4 Jul 2015 Last revised: 12 Jun 2016
Date Written: May 1, 2016
This article, written for the BYU symposium on treaties and the drafts of the Fourth Restatement of Foreign Relations Law, considers the historical relationship between treaty law and political theory. I look first at the early modern period and writers such as Grotius, Vattel, and Machiavelli before turning to the founding era United States, where the law of treaties quickly became an important site for debates about separation of powers and democracy. The last and longest part of the article address the Second and Third Restatements of Foreign Relations Law, as well as the current draft on treaties for the Fourth Restatement. I generalize about the implicit political theories that each restatement reflects, with reference to the earlier sections of the article. In particular, while the Third Restatement adopted an internationalist tone that was sometimes hostile to the messiness of democratic politics, the Fourth Restatement appears to adopt a governance approach to treaties. At the end of the article I reflect on some of the implications of a governance approach to the U.S. law of treaties.
Suggested Citation: Suggested Citation