In a prior post, I defended Justice Thomas’s position in Bond that treaties can only extend to matters involving intercourse with other nations. Mike Ramsey, who unlike myself is an expert regarding the Treaty Power, disagrees with this position, but I am not persuaded.
Justice Thomas had argued in Bond that the Treaty Power is limited by the traditional subjects of treaties, such as war, peace, and trade between nations. According to Thomas, the original meaning of treaty was an agreement “addressing matters of intercourse between nations rather than domestic regulation.”
Mike Ramsey adopts a different interpretation of the Treaty Power – according to Mike, a treaty must merely cover subjects that are genuinely of concern to the parties to the treaty. Mike then argues that the reason why treaties in the 18th century were restricted to matters such as war, peace, and trade between nations is that those happened to be the subjects that nations were concerned about at the time. But since nations are now concerned about additional matters, such as human rights and how a nation treats its own citizens, treaties can extend to those matters.