Why Treaties Can Abrogate State Sovereign Immunity: Applying Central Virginia Community College v. Katz to the Treaty Power,
101 Cal. L. Rev. 755
Available at: http://scholarship.law.berkeley.edu/californialawreview/vol101/iss3/4
This Comment considers a fundamental question about the relationship between state and national sovereignty in our federal system: may individuals hold state governments accountable in federal court for violations of treaty-based rights? The answer to this question appeared to be negative until the Supreme Court decided Central Virginia Community College v. Katz, holding that state sovereign immunity did not bar an individual suit against a state pursuant to federal bankruptcy law. To reach this holding, the Court did not rely on traditional principles of sovereign immunity abrogation. Rather, the Court concluded that in ratifying the Constitution, the states surrendered their sovereign immunity with regard to private suits based on federal bankruptcy law.
So far, the Katz decision is unique in upholding a private right of action against a state based on an implied surrender of state sovereign immunity in the Constitution, but its reasoning is applicable to contexts other than bankruptcy. Perhaps no other federal power is as ideal a candidate for an application of Katz than the treaty power. By analyzing the history of the treaty power, the Framers' understanding of the treaty power, and the function of the treaty power in the U.S. federal system, this Comment concludes that in ratifying the Constitution the states surrendered their sovereign immunity to private lawsuits brought to enforce treaty-based rights.
Over the last thirty years, a number of commentators have considered whether states are amenable to treaty-based private suits, with opinions splitting evenly. This Comment is the first to apply the principles of Katz to the treaty context, and the first to consider the understandings and the practices of the founding generation with regard to the treaty power in the years immediately following the Constitutional Convention. The significance of recognizing a surrender of state sovereign immunity to treaty-based suits is twofold. First, recognizing treaty-based suits opens a new avenue for individuals to vindicate their rights under treaties, including human rights and intellectual property rights. Second, recognizing treaty-based suits promotes the national interest by assuring the international community that the United States as a whole honors its commitments to treaty partners and international law.