The Political Theory of Treaties in the Restatements of Foreign Relations Law

What is a treaty? What purposes does it serve? Who negotiates or ratifies it? What impact does it have on the powers, obligations, or laws of a signatory country? Treaties are legal documents, and these questions raise legal issues to which international and domestic law provide answers.1 But these questions also raise basic issues about how states organize themselves internally, how they interact with each other, and how they conceptualize these processes. Thus, the act of making, complying with, or breaking a treaty is also a political act, and the significance of these political actions varies across time and space in ways that interact with theories about the nature of political life and political organization.One ought to be able to trace, therefore, the links over time between the discourse of treaties and the discourse of political theory.2 The ways in which prevailing political theories conceive of treaties provide a useful vantage point for understanding treaty law but also for assessing the underlying goals and commitments of those theories. Similarly, the ways in which the law of treaties makes assumptions about political relationships provide a useful vantage point for evaluating, not only the law of treaties, but also the relative strength of various approaches to political life and organization. Thus, the effort to connect treaties and political theory demonstrates not just the impact of political theory on treaties but also the impact of treaties on political theory.This Article provides three broad sketches of the connections between treaties and the larger goals or concerns of political theory over time. The first sketch considers treaties in early modern Europe. The second addresses the founding era of the United States. The third surveys the ways that the Restatements of Foreign Relations Law have addressed treaties and considers the extent to which the Restatements reflect the concerns that animated debates about treaties in the early modern and founding periods. Each Restatement has taken a slightly different approach to the legal status of treaties and to the relative powers of the branches of the federal government with respect to treaties. These differences also demonstrate distinct approaches to the interactions of international law and international society with forms of democratic government generally and with the U.S. political system specifically.I. POLITICAL THEORY AND TREATIES IN EARLY MODERN EUROPE"During the [European] Middle Ages, international or universal law merged with ecclesiastical law, and even positive treaty law was considered to have legal force only because treaties were confirmed by oath, which, 'being a "sacrament," subjected the obligation incurred to the jurisdiction of the Church.'"3 This way of thinking about the nature and role of treaties was part of a political discourse that de-emphasized the importance of states and stressed the sovereignty of God. in this strongly hierarchical view, "[t]he idea of final authority was natural to the Church, as God was the authority: his status was expressed on earth through the rival claims of the pope and the Holy Roman Emperor to represent him."4Over time, however, "as both the pope and the Emperor lost power, the authority of other monarchs such as the kings of England and France increased to the point that . . . a multi-state system existed."5 More than one state sought to claim for itself the mantle of hegemonic authority in Europe, even as authority effectively became localized in some parts of Europe, and papal claims receded with the political success of protestant faiths. The system that ultimately emerged was dominated by independent and nominally equal sovereign states.Many commentators use the two treaties that constituted the Peace of Westphalia in 1648 and ended the Thirty Years War as a rough placeholder for the emergence of a sovereign state system.6 That assertion, however, is problematic for multiple reasons, including the fact that it has little to do with what the treaties actually purported to accomplish. …