Statutory Interpretation in India v. New York

In addition to Julian’s comments from last week about the Supreme Court’s opinion in India v. New York, I just had one other quick thought about Justice Thomas’ majority opinion.

It should be underscored that the majority’s approach to statutory interpretation appeared quite comfortable in relying on international law.

It is not exactly a Charming Betsy case, because the Court has construed the FSIA as intending to incorporate the restrictive theory of immunity recognized by international practice. Thus, there is not a presumption that the statute should be read consistent with international law, but rather a congressional expression of intent for such construction.

Nonetheless, it is important to note that Justice Thomas (together with Roberts, Scalia, Kennedy, Souter, Ginsburg, and Alito) interprets the statute in light of the Vienna Convention on Diplomatic Relations, which in turn is interpreted in light of international commentary (including the International Law Commission) and contemporary foreign decisions (in this case from the Netherlands and the United Kingdom).

In short, when statutes attempt to codify international practice, everyone on the Court recognizes the importance of interpreting the statute in light of international law, incorporating guidance from foreign judicial decisions and the most highly qualified publicists of the various nations.

Finally, as I noted before in a previous post, 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.” 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. That cert. question was not addressed in the majority or dissenting opinions. But the fact that the Court only relied on the Vienna Convention on Diplomatic Relations at least tells us something. Perhaps it suggests that treaties to which we are a party deserve a more prominent place in statutory intepretation than treaties to which we are not a party.