May 8, 2021

Treaty, International Law and Constitutional Right

International law


Can a treaty overule an individual right secured under the Constitution? There is no element of the foreign relations law principle more generally upheld than the composition that constitutional rights exists as against in contrary to international agreements; a concord of commentators, courts, and other constitutional actors has long upheld that, in this sphere, the Constitution stands ultimate. This article enquires the supremacy of domestic constitutional rights, in both historical and contemporary reference. In at least three nineteenth-century contexts – extradition, the settlement of foreign claims, and the operation of consular courts – treaty authorities resulted in the countermand of otherwise sustainable constitutional prerogatives.

In the modern age, international human rights exercised a vital part in the extended ideology of domestic civil rights, while other individual rights were confined in the face of foreign relations concerns; no account of twentieth-century constitutional rights is complete without international geopolitical referents[1]. The dynamic global structure may now permit for an open assault on constitutional ascendency. Although constitutional inferiority is unlikely to be accepted as a matter of doctrine, the analysis serves as an extra platform for accepting other classifications of international standards in the purview of U.S. constitutional law.

The Consensus View :

The text of the Constitution does not impose any explicit limitations on the scope of the treaty power. Rather, the Constitution simply vests the power to make treaties in the president with the single procedural safeguard of requiring a two-thirds majority in the Senate to approve the treaty[2]. Nevertheless, since early in our nation’s history there has been widespread agreement that the Constitution is absolutely supreme over treaties, and that certain limitations on the treaty power are implied by this supremacy.

Though the exact scope and nature of the specific limitations on the treaty power implied by this doctrine are disputed, a typical list generally includes those substantive limitations that apply to any action by the federal government, such as those enumerated in the Bill of Rights or imposed on Congress in article I, section 9[3]; those arising from principles of federalism[4] or separation of powers[5]; and those based on the subject matter of treaties (e.g., that treaties deal only with “matters of international concern”)[6].

Some prominent commentators have even sought to restrict the treaty power to those arenas which Congress cannot reach through the legislative process, reasoning that since the House of Representatives is excluded from the treaty-making process, a treaty could not achieve that which would typically require the House’s assent in its absence[7]. Among these various potential limitations on the treaty power the least controversial are those arising from substantive restrictions on the federal government in the Constitution[8].

We shall call this adherence to the position that the substantive limitations do, in fact, restrict the treaty power the “consensus view.” Note that our definition of the consensus view does not touch upon the relationship between possible limitations imposed by structural considerations, such as federalism or separation of powers principles, and the treaty power. Proponents of the consensus view ground their arguments in both precedent and theory. In terms of historical precedent, commentators past and present[9], numerous Supreme Court pronouncements[10], and various constitutional actors, including the treaty negotiators themselves[11], have almost uniformly supported such limitations. Conceptually, proponents of the consensus view ground their arguments on a relatively short collection of theses.

Primary among these is the claim that since the treaty power is itself based on the Constitution, it cannot possibly trump the Constitution[12]. Constitutional supremacy over treaties is also commonly inferred from the following: (a) the well-established subsequent-in-time rule, by which more recent federal statutes, themselves undoubtedly subject to the Constitution, trump older treaty provisions with which they are in conflict[13]; (b) the jurisdiction granted to federal courts, a branch of government undoubtedly subject to the Constitution, over cases in which “is drawn in question the validity of a treaty”[14]; and (c) the presumed intent of the framers to create a lasting charter whose provisions could not be overridden by such irregular means as international agreements[15].



[2] U.S. Const., art. II, §2

[3] Restatement (Third) of Foreign Relations Law of the United States §302(2) & cmt. b (1987)

[4] The precise nature of these limitations is a subject of much controversy. Cf. David M. Golove, Treaty Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power, 98 Mich. L. Rev. 1075 (2000); Curtis A. Bradley, The Treaty Power and American Federalism, 97 Mich. L. Rev. 390 (1998).

[5] Louis Henkin, Foreign Affairs and the United States Constitution 194–196 (2d ed. 1996)

[6] Geofroy v. Riggs, supra note 3, at 267

[7] Most notably, Thomas Jefferson expressed this view in his influential Manual of Parliamentary Practice (§ LII)

[8] Golove, supra note 6, at 1083

[9] Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America (1880)

[10]Reid v. Covert, 354 U.S. 1, 16–17 (1957)

[11] International Covenant on Civil and Political Rights: Hearing Before the Senate Comm. on Foreign Relations, 102d Cong. 102-478(1991)

[12] Annals of Congress 531–532 (1816) (statement of John C. Calhoun)

[13] Reid v. Covert, supra note 12, at 18 (“It would be completely anomalous to say that a treaty need not comply with the Constitution when such an agreement can be overridden by a statute that must conform to that instrument”); Whitney v. Robertson, 124 U.S. 190, 194 (1888) (“if there be any conflict between the stipulations of the treaty and the requirements of the law, the latter must control”); The Head Money Cases, 112 U.S. 580, 598–599 (1884).

[14] Judiciary Act of 1789, Ch. 20, 1 Stat. 73, 85–87

[15] Ibid, note 12

Author: Vasundhara Dhar (Birla Global University)

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