John Coyle (University of North Carolina School of Law) has posted The Treaty of Friendship, Commerce, and Navigation in the Modern Era (Columbia Journal of Transnational Law, Forthcoming) on SSRN. Here is the abstract:
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The bilateral treaty of friendship, commerce and navigation was for centuries a staple of international diplomacy. These treaties were famous for addressing a wide range of issues — including human rights, trade and investment protection — in a single document. In recent years, however, states have increasingly entered into specialized agreements on topics that were historically addressed by these treaties. Today, the conventional wisdom is that treaties of friendship, commerce and navigation are of primarily historical interest.
This Article both confirms and challenges this conventional wisdom. It first provides a richly detailed account of how the treaty of friendship, commerce and navigation has been undermined as a source of rights in the United States over the past fifty years. Some treaty rights were read into the U.S. Constitution. Others were written into more specialized international agreements. Still others were incorporated into federal statutes. In light of these developments, this Article concludes that these treaties are today far less important as a source of rights than in decades past.
This Article then goes on to argue that, notwithstanding this loss of influence, treaties of friendship, commerce and navigation continue to offer important conceptual insights to scholars and policy-makers. First, they show how treaty rights might be coordinated across specialized treaty regimes. Second, they show how these rights might be better balanced within a single regime. This Article suggests that a renewed appreciation for these treaties could both enrich contemporary debates about the “fragmentation” of international law and lead to important reforms to the bilateral investment treaty regime.
