Federalist Society Treaties and National Sovereignty Conference

On March 27-28 at George Washington Law School in Washington, D.C., the Federalist Society is hosting a very promising Treaties and National Sovereignty Conference. Here is the description and agenda:

Ever since the Founding, the power of the United States to enter into treaties has been viewed as central to the then-newly-created nation's ability to exercise sovereign power. But treaties confer both mutual rights and mutual obligations on their signatories. Therefore when nations, including the United States, enter into treaties, they arguably both advance and limit their ability to pursue their own objectives.

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 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 human rights and other treaty obligations, typically the product of multilateral conventions, are a new form of positive law enforceable by domestic courts and/or international bodies—irrespective of whether they have been implemented by nation state legislation, of whether the state has placed reservations intended to condition its consent, or even of whether a nation is actually a signatory.

Proponents argue that these developments represent progress, as they extend core human rights commitments more broadly and provide enforcement mechanisms short of war where countries' own enforcement mechanisms are inadequate. Skeptics counter that these commitments can only be effectively protected by nation-states accountable to their own citizens, and that these shifts in treaty jurisprudence exacerbate the danger, inherent in any treaty, that countries that believe more strongly in the rule of law will find themselves, as a practical matter, giving up more sovereignty than other states or than a clear assessment of their national interests would warrant.

The conference will consider both of these perspectives. It will start with the recognition that there are certain supra-national norms that ought in some fashion to guide the conduct of nations. This recognition has a long and distinguished pedigree, and it has long been one of the lodestars of the United States' involvement in the international arena. At the same time, it will recognize the very serious risks that pursuit of likely institutional implementation of this goal poses to the sound conduct of foreign policy and other instruments of our national sovereignty. Participants will discuss how to think about the treaty power in light of these competing considerations.

Agenda:

FRIDAY, MARCH 27, 2015

Continental Breakfast

8:30 a.m.—9:00 a.m. 
Room L401

Welcome

9:00 a.m.—9:15 a.m.

Room L401

• Prof. Gregory E. Maggs, George Washington Law
• Hon. Lee Liberman Otis, The Federalist Society
• Prof. Samuel Estreicher, NYU Law

Session A: Multilateral Treaties

9:15 a.m.—11:00 a.m.

Room L401

Should the United States still be entering multilateral treaties? If so, what criteria should it apply in deciding whether to do so?

• Presenter: Prof. Thomas H. Lee, Fordham Law: "Should We Still Be Entering Into Multilateral Treaties?"
• Commentator: Prof. Kenneth Anderson, American University Law & Hoover Institution
• Commentator: Prof. Kristine Kalanges, Notre Dame Law
• Commentator: Prof. Stephen Vladeck, American University Law
• Moderator: Prof. Jeremy A. Rabkin, George Mason Law

Group Discussion

11:15 a.m. -12:15 p.m.

Room L401

Luncheon: Discussion of the Rome Treaty and the International Criminal Court

12:30 p.m.—2:00 p.m.
Law Learning Center

• Hon. Michael B. Mukasey, Debevoise & Plimpton LLP and former U.S. Attorney General
• Hon. John B. Bellinger III, Arnold & Porter and former Legal Adviser to the U.S. Department of State
• Moderator: Prof. Jack Goldsmith, Harvard Law

Session B: UN Convention on Law of the Sea (UNCLOS)

2:15 p.m.—3:45 p.m.

Room L401

How much regulatory and monitoring treaty compliance authority should ongoing international governance bodies have in areas where there may be a need for international cooperation, such as the UN Convention on Law of the Sea (UNCLOS)?

• Presenter: Prof. Julian G. Ku, Hofstra Law: "U.S. Sovereignty and Dispute Resolution Under the UNCLOS"
• Commentator: Prof. Vicki C. Jackson, Harvard Law School
• Commentator: Prof. Kristina Daugirdas, Michigan Law
• Moderator: Prof. Bradford R. Clark, George Washington Law

Group Discussion

4:00 p.m.—5:00 p.m.

Room L401

SATURDAY, MARCH 28, 2015

Continental Breakfast

8:15 a.m.—8:45 a.m.
Kelley Lounge

Session C: Implementation Legislation: Federalism and Other Issues

9:00 a.m.—10:30 a.m.
Moot Courtroom

How do the treaty power and Congress's power to implement treaties under the necessary and proper clause relate to the Constitution's other limits on Congressional power, especially its creation of a federal rather than a national government? Does the latter suggest not only constitutional but prudential considerations that may bear on how the President and the Senate should exercise the treaty power?

• Presenter: Prof. Ruth Wedgwood, Johns Hopkins University, "Implementation Legislation for Treaties"
• Commentator: Prof. Richard H. Pildes, NYU Law
• Commentator: Prof. Nicholas Quinn Rosenkranz, Georgetown Law
• Commentator: Prof. Duncan B. Hollis, Temple Law
• Moderator: Prof. John O. McGinnis, Northwestern Law

Session D: Roundtable on Reservations and Human Rights Treaties

11:00 a.m.—12:30 p.m.

Moot Courtroom

How do reservations operate, especially in the context of human rights treaties?

• Prof. Curtis A. Bradley, Duke Law (facilitator)
• Prof. Paul B. Stephan, Virginia Law
• Prof. John C. Yoo, Berkeley Law

Luncheon Discussion: Should a New Organization Be Formed to Promote International Law and National Security?

12:45 p.m.—2:00 p.m.

Law Learning Center

• Hon. Edwin D. Williamson, Sullivan & Cromwell and former Dept. of State Legal Adviser (facilitator)

Conference Organizer: Prof. Samuel Estreicher, NYU Law

Conference Rapporteur: Prof. Joshua Kleinfeld, Northwestern Law

This conference is made possible by a generous gift from the Hertog Foundation.

More information and registration here.