An intersubjective treaty power.

AuthorHollis, Duncan B.
PositionIII. Testing for Intersubjective Understandings of the "International" through Conclusion, with footnotes, p. 1442-1464 - Symposium on Treaty Power and Bond v. United States
  1. TESTING FOR INTERSUBJECTIVE UNDERSTANDINGS OF THE "INTERNATIONAL"

How do we perform an intersubjective international concern test? The approach is relatively straightforward: we ask if the relevant set of actors approved the treaty. On occasion, actors will expressly defend a treaty on the ground that its subject matter is international in nature. Alternatively, actors may defeat a treaty by asserting it is not properly a subject for treatymaking (or that it addresses purely domestic matters). Often, however, the relevant actors are silent. In such cases, treaty approval suffices to demonstrate the existence of an intersubjective belief that the treaty addresses a matter of international concern. Since a treaty, by definition, qualifies its subject matter as "of international concern," it follows that actors who approve a treaty must necessarily believe it regulates an international subject. (139)

We must, however, look beyond the various stages of approval to also consider the context in which the treaty's subject matter arises. Ratification offers a general, ex ante understanding of the treaty's international character, but it does not necessarily follow that this represents a shared understanding for everything subsequently done in the treaty's name in terms of implementation or application. Similarly, timing matters. In some cases, once an intersubjective understanding exists, it becomes habituated and we can expect it to continue. But in other cases (e.g., changed conditions or a new subject matter), intersubjective understandings may be more dynamic. A matter previously collectively understood as entirely domestic may move to the international ledger or vice versa. By focusing on the staged, contextual, and dynamic aspects of intersubjectivity, we can test the limits of the treaty power even in the absence of objective criteria.

  1. Intersubjectivity and the Stages of Treaty Approval

    If a treaty's approval provides a simple, if somewhat crude, means for identifying intersubjectivity, we need to study the process by which approval occurs. The treatymaking process incorporates different stages: (i) formation, (ii) ratification, (iii) implementation, and (iv) application. To pass the international concern test, we will need to find affirmative intersubjectivity at each of these inflexion points.

    1. Treaty Formation

      The formation of a treaty offers the most basic--and indispensable--evidence of an intersubjective understanding that it addresses a matter of international concern. The law and practice of nation States have long recognized that the very act of concluding a treaty means its participants understand (expressly or implicitly) that the subject matter is international in nature. Indeed, international law acknowledges that matters previously understood to be domestic in nature become international by virtue of treaty regulation. (140) Thus, when the United States and one or more other States negotiate and conclude a treaty, it suggests that they share a collective understanding of the international character of their regulation, whatever they may have said about the issue in the past. (141)

      Human rights provides the paradigmatic example of this phenomenon. Before World War II, "no rule was clearer than that a [S]tate's treatment of its own nationals is a matter exclusively within the domestic jurisdiction of that [S]tate." (142) Nazi horrors shifted the collective understanding, and in the decades following World War II, human rights issues became not just a part of, but a major agenda item in, international relations. (143) Since the 1966 adoption of the two core covenants on human rights, (144) treatymaking on human-rights-related subjects has proliferated, including the recent U.N. Disabilities Convention. (145) As a result, today, no State contends that human rights are still domestic matters and outside the scope of proper treatymaking.

      That said, treaty negotiations can break down or splinter where States do not agree that a subject matter warrants international attention. Other States could object to a U.S. treaty proposal, for example, on the ground that it does not address a truly international subject. (146) Obviously, States may object to treaty proposals for reasons unrelated to the international/domestic divide. For example, the United States has objected to proposals for a new treaty to deal with climate change, not because it thinks the matter is a domestic one, but because it believes a political commitment would be a better vehicle for dealing with the issue. (147) Alternatively, a State may object to how the treaty proposes to regulate its subject matter. For example, the United States objected to the jurisdiction and operations of the International Criminal Court. (148) Nonetheless, the basic idea remains: those who make a treaty share an understanding that its topics are international, while negotiations can fail if participants have no such understanding. (149) Thus, the very process of forming a treaty provides the first vehicle for intersubjective understandings of "matters of international concern" to regulate (and perhaps limit) the subject matter of U.S. treaties.

      In this formation stage of the treaty process, the executive represents the United States. (150) As a result, it is the executive's belief whether a subject is (or is not) international that contributes to the intersubjective acceptance of a treaty. Executive practice has long reflected attention to the international criterion in negotiations and their aftermath. (151) Occasionally, the executive has informed other nations that it regarded a particular topic (e.g., armaments) as inappropriate for a U.S. treaty commitment because it was too "local" in nature. (152) In other cases, the executive ceased to pursue a treaty it had negotiated because it came to believe the issues were too domestic. For example, despite signing the U.N. Convention on the Rights of the Child (CRC), the executive has never sought Senate advice and consent, at least in part because that treaty focuses on areas "of almost exclusive state-level authority." (153) Similar concerns led the executive to back away from the International Covenant on Economic, Social and Cultural Rights. (154)

      Sometimes, executive reluctance to negotiate is expressed in terms of the proposed treaty's impact on areas in which the states legislate. And certainly the fact that the states have regulated a subject in lieu of the federal government may inform the executive calculus on its "international" nature. But it would be a mistake to read the international concern test as any sort of proof of states' rights or Article I limitations on the treaty power. Even as it has held back on treaties it believed were not sufficiently international, the executive has readily endorsed the international nature of topics otherwise under state jurisdiction where an international connection explains the need for doing so. Thus, the executive favored treaties on drivers' licenses and vehicle registrations--both subjects traditionally a matter of state power--where they involved foreigners. (155) It supported a treaty superseding state contract law for "international" contracts. (156) It supplanted state criminal processes for diplomats, consuls, and officials of international organizations like the United Nations. (157) And we should not forget its view in Missouri v. Holland that migratory birds were an entirely "proper" subject for negotiation. (158) The better view, therefore, is that instead of some strict states' rights approach, the executive operates on an understanding of what matters it will regard as international and those it will not.

      So far, I have treated a treaty's subject matter as singular to focus attention on the ways shared understanding may (or may not) emerge among the negotiating parties. In practice, however, treaties are more like Swiss Army knives, capable of addressing multiple subjects and regulating any single subject in manifold ways. (159) The U.N. Charter offers a paradigmatic example of a treaty addressing multiple subjects (e.g., security, human rights, economic, and social issues) for multiple functions (to prohibit conduct, to empower behavior, and to constitute an international organization). (160) In contrast, the Law of the Sea Convention focuses on a single subject--the maritime environment--but does so via manifold sub-issues, from freedom of the high seas to deep seabed mining to environmental protection. (161) As a result, the international concern test can (and should) operate on an issue-by-issue basis rather than a treaty-by-treaty one.

      International law and practice have developed a number of tools at the formation and ratification stages to allow for this more surgical approach. (162) Most obviously, a State may seek to negotiate the text in ways that avoid impermissible subjects. For example, in the Tobacco Convention negotiations, early drafts would have required the United States to regulate subjects it regarded as insufficiently international (e.g., secondhand smoke in all indoor workplaces, public transport, and indoor public places). (163) It renegotiated those provisions to avoid reaching to such a local level by having the treaty only require regulation in "areas of existing national jurisdiction as determined by national law." (164)

      Alternatively, a treaty text may include an escape clause (known as a "federal-state clause") allowing federal States to opt out of commitments that they cannot meet because of their federal structure. (165) These clauses generally equate federal and non-federal State obligations for provisions within each federal State's "legislative jurisdiction," but require federal States merely to recommend to their constituent units provisions that fall within the constituent units' "legislative jurisdiction." (166) These provisions effectively keep the treaty's reach out of areas of state law...

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