Hollis on The Original Meaning of Treaties @TempleLaw @PennLRev

Duncan B. Hollis, Temple University School of Law, is publishing The Original Meaning of Treaties in volume 173 of the University of Pennsylvania Law Review (2025). Here is the abstract.

For nearly two centuries all three branches of the federal government have thought that the original meaning of the Constitution’s references to treaties and compacts was lost. This article aims to recover those original meanings by looking to an underexamined source—the contemporary law of nations. In 1789, that body of law regarded compacts, rather than treaties, as the umbrella category for all international agreements. Treaties—defined as executory commitments among sovereigns only—were but one form of compact. Others included executed “conventions,” agreements by “subsidiary powers,” and unauthorized “sponsions.” Each of these categories had a specialized meaning—they were terms of art—in both the scholarly corpus that delimited the field and contemporary practice. Although neither dictionaries nor the Framing materials explicitly invoke these definitions to assign constitutional meaning, there is extensive evidence in the text, intellectual history, and early U.S. practice for doing so. I identify support for a law of nations thesis in an array of previously ignored agreements, including those made by George Washington and Benedict Arnold. A law of nations thesis also helps explain why the United States concluded certain agreements as treaties and others as conventions in its earliest years. This article thus provides a new and historically rooted foundation for U.S. foreign relations law, with important implications for the scope and exclusivity of the Treaty power, the power to conclude “Executive Agreements,” the doctrine of non-self-executing treaties, the ban on U.S. state treaty-making, and the Constitution’s authorization of compacts with congressional consent.

Download the article from SSRN at the link.

Lesaffer on The Lore and Laws of Peace-Making in Early-Modern and 19th-Century European Peace Treaties @TilburgLawNews

Randall Lesaffer, Tilburg Law Schoo; KU Leuven Faculty of Law, has published The Lore and Laws of Peace-Making in Early-Modern and 19th-Century European Peace Treaties. Here is the abstract.

As the works of Gentili and Vattel exemplify, the writers of the law of nations of the 16th to 18th centuries largely construed the legal conception of peace on the basis of their conception of war. The nature of peace was dictated by the nature of war. In this, their theories gelled with peace treaty practice. Whereas some of the dualistic logic of the justice and legality of war transpired in the twin pair of amnesty and restitution clauses, early modern peace treaties were designed to deal with the consequences of war under the conception of legal war. They were founded on the assumption that all belligerents had a right to wage the war and equally enjoyed the protection and benefits of the laws of war. This created space to disregard claims of right and justice and negotiate a compromise without having to heed too many legal constraints with relation to pre-existing rights and claims. The triumph of legal over just war in peace treaties, albeit not in the discourse of the justification of war itself, was a logical consequence of the ascendancy of the sovereign state.

Download the article from SSRN at the link.