Treaty Interpretation 101

by Roger Alford

I was at a recent event that involved a discussion with a federal appeals court judge regarding the interpretation of treaties in federal courts. One of the cases under discussion involved interpretation of a particular phrase in a well-known treaty. This particular judge is an extremely thoughtful, erudite, and scholarly judge. When someone in the room raised the point that the court could and should have made reference to the Vienna Convention on the Law of Treaties as an aid in the interpretation of this treaty provision, his response was, “What’s that?” He had to confess that, while he was aware of the Vienna Convention on Consular Relations, he had never heard of this other Vienna Convention. He added that to the best of his recollection, in all his years on the bench he had never been introduced to it by any lawyer who filed briefs in cases before him. When asked whether he would have benefited from briefs that pointed him to these rules of interpretation, he said, “Of course.”

To be sure, this judge is not to blame for the widespread ignorance regarding the Vienna Convention. His ignorance is a by-product of a prevailing ignorance regarding the international rules of treaty interpretation. Even the Supreme Court inspires little confidence regarding its level of awareness of the Vienna Convention. There is only one Supreme Court majority opinion that even references the Vienna Convention on the Law of Treaties, Weinberger v. Rossi 456 U.S. 25, 29 (1982) (referencing the Vienna Convention to determine what constitutes a treaty under international law). Two other dissents also reference it (Blackmun’s dissent in Sale and Breyer’s recent dissent in Sanchez-Llamas). Only one of these dissents–Sale–makes use of Articles 31 and 32 of the Vienna Convention. Thus, only one decision by one dissenting justice has ever utilized the treaty interpretation tools that are set forth in the Vienna Convention. And they have less of a basis to plead ignorance. There have been at least fifty briefs filed since 1976 that reference the Vienna Convention.

What is it about treaty interpretation that would create this level of ignorance at the bench and the bar? I find it difficult to comprehend that high-caliber judges and lawyers remain so uninformed about these accepted and customary standards of treaty interpretation.

Of course, the United States has not ratified the Vienna Convention, and that may go far to explain why federal and state judges do not rely upon it more. But I am aware of little to no debate regarding the status of Articles 31 and 32 as customary international law. The United States has declared that the Vienna Convention is “generally recognized as the authoritative guide to current treaty law and practice.” And the State Department regularly utilizes the Vienna Convention when they are involved in litigation before international tribunals. These interpretive rules have become uncontroversial tools used by our Executive branch and the international community to secure common understanding regarding contested obligations in mutually negotiated treaties.

It is simply remarkable that there is so little reliance by our judges on these accepted tools of interpretation. By my count based on a quick Westlaw search, in the past thirty plus years there have been fewer than thirty federal or state court decisions that have referenced Articles 31 and 32 of the Vienna Convention on the Law of Treaties: one Supreme Court dissenting opinion, eleven federal appeals court decisions, nine federal district court decisions, four federal specialized court decisions, and four state court decisions. Fewer than thirty decisions in over thirty years! Top to bottom, left or right, bench or bar, it appears that there is a stunning degree of ignorance regarding the accepted standards of treaty interpretation.

I am not suggesting that there are not some decent arguments against the use of the Vienna Convention in federal or state court. (And the reasons for and against using international norms to interpret our statutes, treaties, and Constitution are quite distinct. There are valid grounds to disfavor the use of international norms in the constitutional context but favor its use in other contexts.) At a bare minimum, American courts should be aware of the Vienna Convention rules of interpretation and begin a public discussion about the appropriateness of using those rules. The idea of using the Vienna Convention to interpret treaties has rarely percolated through our courts.

The timing could not be better, given the current interest in the topic of international authority as an interpretive aid. And the idea likely would generate far less controversy than constitutional comparativism, with conservative justices such as Scalia noting in a recent speech that a common interpretive approach to treaties is desirable because the whole object of a treaty is to “establish a single, agreed-upon regime governing the actions of all the signatories.” He further noted in a recent case that “it is reasonable to impute to the parties an intent that their respective courts strive to interpret the treaty consistently.”

Perhaps there is a silver lining to this lamentable state of affairs. The discussion with the judge that day progressed to a comparison of the textualist approach that federal appeals court judges are prone to utilize and the interpretive approach required by the Vienna Convention. The sense of the group was that the two approaches were strikingly similar and, at least in that case, likely would have yielded the same result under either approach. The tradition under both domestic and international approaches to interpretation is strongly to favor reliance on text, and disfavor reliance on drafting history. As someone in the room put it, most judges are textualists now and the domestic approach to interpretation shares the caution about negotiating history that is reflected in the Vienna Convention.

4 Responses

  1. I think this has in part to do with the rather odd status of unratified treaties. While there is a clear method of accepting a treaty (via ratification) there is no clear method of rejecting a treaty, especially if the executive branch does not submit it for ratification fearing a defeat.

    What is a judge to make of a treaty signed by the executive, but unratified by the legislative? In the case of say, Kyoto, at least there is a guide in the form of a senate vote opposing ratification, however this is more the exception than the rule.

    The exact status of Customary International Law as it applies to the US legal system is far from a settled issue, as evidenced by (at the very least) the workshop/argument seen on this site previously.

  2. I must admit I fail to see what the problems of the application of Arts 31 and 32 VCLT in American courts might entail. Surely, there can be no question of applying it as treaty law (except possibly when interpreting a treaty entered into only by states parties to the VCLT). Accordingly, the rules on interpretation could only be used as customary law, as Prof. Alford and M. Gross suggest.

    This may present its own constitutional problems (I refer to M. Gross and his reference there), but there is, strictly speaking, no connection to the VCLT at all. Practically speaking, there is of course a connection, in that the VCLT has put the customary law into words, and thus possibly altered our perception of it, but this is a hazy connection at best. After all, 37 years after the adoption of the Convention, and after it has been cited by all the world as the applicable standard on interpretation (as e.g. already in 1975 by the ECtHR in Golder v. United Kingdom, at para. 29), there can be no argument that the customary law is today any different from the rules of the VCLT.

    I agree, incidentally, that the international and the Anglo-Saxon rules on interpretation are very similar. If I recall correctly, Lord McNair made much the same point in his Law of Treaties.

    Interestingly, the inspiration does not appear to be one-way only, in the sense that international law has borrowed from the common law: in the famous case on the use of Hansard (the official record of UK Parliamentary debates) in statutory interpretation, Pepper v. Hart [1993] AC 593, Lord Browne-Wilkinson’s leading judgment introduced categories of cases in which such use was permissible. His Lordship’s choice of words in describing these cases was in many respects indistinguishable from Article 32 VCLT, even though there was no citation to the Convention.

  3. This is interesting. Are we really sure that the VCLT rules on interpretation are similar to traditional Anglo-Saxon rules of treasty interpretation? The Golder case seems to suggest otherwise. For consider: a typical U.S. court would look at language, context, AND drafting history as part of a general “package” aimed at determining the intent of the parties to the treaty. In contrast, in the Golder case the European Court of HR refused to coonsider the drafting history, given that, under arts 31 1nd 32 of the VCLT, when language (read in light of object and purpose) is clear, recourse to drafting history is barred.

    Yet I think that U.S. courts routinely look at drafting history in order to determine intent of the parties (one recent example is the SC’s discussion of the Geneva Conventions in Hamdan.

    This suggests that the interpretation rules in the VCLT are really different from the traditional rules of interpretation used by U.S. courts.

  4. That’s interesting.

    Maybe the similarities are much closer between the VCLT and English law than between the Convention and US law.

    Certainly, Article 32 would seem to owe much to the rule of English common law relaxed in Pepper v. Hart, viz. the rule against the use of Hansard in statutory interpretation. I take it that such a rule has never existed in US law?

    Also, Lord McNair would certainly not have been talking about similarities to American law (in the passage I seem to remember).

    This would, of course, raise the question of how English law has come to influence international law quite so much, if its traits in the relevant respect are not even shared in other common law jurisdictions.

    Professor Cassese notes in his International Law in a Divided World that there really were no rules on treaty interpretation before the beginning of the 20th century. If that is true, the rules later codified in the VCLT would have developed (rather quickly, considering their forthright application by the PCIJ) after that. Was this still a time when the British Empire held sway over most areas of international law, while the US still more or less stood at the sidelines? (until WW I, with a lapse into renewed isolationism immediately afterwards)

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