25 Apr Foreign Treaties as Legislative History
Let me add my own thoughts to what Julian has said regarding yesterday’s oral argument in Permanent Mission to India v. City of New York. I agree that the case is boring, but there is one really interesting issue regarding the use of a foreign treaty as legislative history. The precise statutory question was the meaning of the Section 1605(a)(4) which states that a foreign state shall not be immune “in which rights in property in the United States acquired by succession or gift or rights in immovable property situated in the United States are in issue.” Applied to the facts, the question was whether a property tax lien on the Indian permanent mission (pictured above left) is a “right in immovable property” within the meaning of 1605(a)(4)?
In the decision below, the Second Circuit interpreted the relevant provision of 1605(a)(4) broadly by relying extensively on three treaties: the European Convention on State Immunity, the United Nations Convention on Jurisdictional Immunities of States and Their Property, and the Vienna Convention on Diplomatic Relations. (The United States is a party to the third treaty, but not the first two). The clear suggestion of the Second Circuit was that Congress drafted the FSIA with an understanding of international and European practices and with the goal of bringing American practice into line with that of other nations.
In granting certiorari, one of the questions presented by the Court was “whether the court of appeals erred in relying on two international agreements regarding foreign sovereign immunity to which the United States is not a party in the course of interpreting the FSIA.” From this question it sounded like some justices were skeptical about the use of international law to interpret statutes.
But during oral arguments yesterday, it was fairly apparent that this general question was not at issue, but rather the specific question of whether a foreign treaty may have a role in understanding the legislative history of a statute. Of course, John Howley, counsel for the Permanent Mission of India favored a narrow definition of the real property exception, while Michael Cardozo, counsel for the City of New York, favored a broad reading. The key debate was what to make of slight differences between the language in the FSIA and the European Convention, particularly when the language is identical to the European Convention in some provisions of the FSIA but not others:
Mr. Howley: I do not dispute that a lien holder has an interest, a security interest in the property. But Congress did not write in Section 1605(a)(4) all interests that are in issue in property. Congress in fact had the European Convention in front of it which said rights, interests and obligations in property. Congress chose language from the European Convention elsewhere but did not choose that language here. Congress said only rights in property.
Justice Scalia: You’re distinguishing between rights in property and interests in property? I would think that every right in property is an interest in property and vice versa.
Mr. Howley: No I don’t believe so … There has to be a reason why Congress chose language verbatim from the European Convention in other sections of the statute … but in this exception said we are not taking interest and obligations from the European Convention, we are only saying rights… Congress refers to the counterclaim exception in the [FSIA] so Congress said we are taking this from the European Convention….
Justice Scalia: Congress didn’t really say it. I mean the committee said it to be precise.
***
Mr. Cardozo: Now let’s look at the foreign cases before we get to the European Convention and we cite a number of them …. There is a large number of cases…. Then that brings us to the European Convention which was adopted shortly before the FSIA and which the State Department told Congress was consistent with the FSIA…. And the European Convention in Article 9 … has a very broad immovable property exception. I’m not just looking at the language. I’m looking at what does this Convention reflect as far as international practice was at the time? And that practice at the time as reflected by the Convention, as reflected by the cases, all say that there is a very broad immovable property exception that should cover this kind of dispute….
Chief Justice Roberts: Well, the Convention used language quite different than that was used by Congress. So I’m not quite sure how that international practice reflected in or arising out of the Convention is terribly pertinent.
Mr. Cardozo: … I’m not just talking about the language. I’m talking about the European, the international practice as reflected by that Convention because the 1976 legislative history of the FSIA says we are trying to conform United States practice into the practice that is followed internationally…
Chief Justice Roberts: And in some cases they used language directly from the Convention and in this case they didn’t so it seems to me a particularly ill-advised source for looking for what they were trying to do.
So I would draw a slightly different conclusion than Julian from the oral argument. The European Convention is relevant to the legislative history, but that doesn’t mean the international norm is the one that should be followed in interpreting the statute. Rather, it appeared from the oral argument that, given the text and the legislative history, all the justices may end up conceding that the European Convention is relevant to understand the FSIA generally, but that some of the justices may rely on textual departures from the European Convention to suggest that Congress did not intend to follow the international practice in this instance.
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