- Justice David Stras, Minnesota State Supreme Court
The relationship between treaties and national sovereignty is somewhat complex. On the one hand, a nation’s power to enter into treaties has long been viewed as a core incident of sovereignty. On the other hand, treaties generally confer not only mutual rights but also mutual obligations on their signatories. Therefore when a nation enters into a treaty, it theoretically both expands and limits its own national sovereignty by, on the one hand, obtaining other countries’ agreement to abide by the treaty’s limitations, but on the other hand accepting whatever obligations the nation undertakes pursuant to the treaty.
Several developments over the past few decades invite serious reflection about how the United States should think about this tradeoff. For one thing, treaties increasingly extend beyond customary areas of cooperation among nations to create various obligations on the part of countries with respect to how they treat their own citizens. For another, many international law advocates, and some courts, increasingly argue that these obligations are legally enforceable, either by domestic courts or international bodies, and regardless, in some instances, of whether a nation has actually agreed to them, or agreed to them with reservations. This exacerbates the danger that countries that believe more strongly in the rule of law will find themselves, as a practical matter, asymmetrically giving up sovereignty that less law-abiding countries effectively retain. On the other hand, the notion that there are supra-national norms that ought in some fashion to guide the conduct of nations has a long and distinguished pedigree, and has long been one of the lodestars of the United States’s involvement in the international arena.
The purpose of this conference is to stimulate reflection and discussion about these questions. It will do so in the context of hearing presentations based on research papers and comments on those presentations the following topics: