Treaties, Sovereign Immunity, and the Plan of the Convention

Abstract

This paper, part of a symposium on Federal Courts and Foreign Affairs, considers a question posed by Carlos Vaszquez: should treaties be treated differently from federal statutes when determining whether they abrogate sovereign immunity? The paper first considers the question in light of current sovereign immunity doctrine, and argues that the question of treaties ought to be considered separately from that of federal statutes, and that this can be done without resort to foreign affairs exceptionalism. The paper then turns to the underlying problems with abrogation doctrine itself, arguing that these problems, while they remain largely hypothetical as to treaties, pose a major threat to the supremacy of federal law as applied to statutes.