Posted by Eugene Volokh:
"Bait and Switch" on Treaties?
http://volokh.com/archives/archive_2009_04_12-2009_04_18.shtml#1239750750
[1]Ed Whelan at National Review Online's Bench Memos argues:
American transnationalists ... use a bait-and-switch game on �human
rights� treaties. In urging that the United States adopt the
treaties, they hide behind the treaty�s grand and sweeping
statement of a seemingly unobjectionable principle. Focused on the
supposed concerns of a hypothetical world community, they trumpet
the need for the United States to make an �important global
statement� and to show that �our national practices fully satisfy
or exceed international standards.� Meanwhile, at the same time as
the supervisory committee established by the treaty is interpreting
the treaty to advance a radical agenda, American transnationalists
obscure or dissemble about what the treaty committee is doing when
they are speaking to the Senate and the American public -- and then
they turn around and use its interpretations to advance their
agenda in courts.
I'm not sure of the intentions of the people involved; Whelan is
criticizing Koh here, but that's not my goal with this post. But the
intentions might not matter that much, because my sense is that this
is indeed a potential danger, even if everyone's intentions are pure.
Whenever one is proposing adherence to a treaty, or the enactment of a
statute, it's tempting to describe the proposal narrowly. Then once
it's enacted, it's tempting to read this broadly. People being what
they are, they fall into this temptation, and the rest of us may find
the result to be a bait-and-switch even if it wasn't so intended.
And it strikes me that this is indeed a potential danger with a range
of "human rights" treaties: We might indeed sign on to the text of a
treaty because the text seems sensible, but then end up some years or
decades later being stuck with international interpretations of the
treaty that are much broader than the text suggests. To be sure, we
could say "We signed on to the treaty's text, not its
interpretations." But that might be a difficult argument to make,
especially (1) when people are pressing us not to alienate the
"international community," and (2) given that deference to judicial
and even executive interpretations of domestic statutes -- and not
just to the statutory text -- is a normal American legal norm.
But this is just a tentative judgment, based on my limited experience
with the field. Can those of you who have more experience with these
sorts of international treaties speak to this question?
References
1.
http://bench.nationalreview.com/post/?q=OGMyYmQyMjI5MjYyNTIyODA5N2UyMzVjMmUyYzc4YmM=
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