A Response to Ingrid Wuerth
Many thanks to Ingrid Wuerth for her thoughtful response to my Article.
I agree with Ingrid that the importance of maintaining a uniform international standard in the interpretation of incorporative statutes may be especially salient in the context of treaties, like the Hague Rules, that address coordination problems. I disagree, however, that the borrowed treaty rule is of little salience in the context of human rights treaties that seek to establish minimum international standards. An international standard contained in a human rights treaty is typically invoked by domestic litigants only where its application would result in increased protection of individual rights; it is the rare case in which the government is the first to cite to a human rights treaty. In most (though not all) cases, a presumption requiring the court to consult the relevant international standard as a prelude to interpreting a domestic statute implementing that treaty seems likely to produce tangible benefits vis-à-vis individual rights. Certainly this was true in INS v. Cardoza-Fonseca, where the petitioner successfully urged the Supreme Court to interpret incorporative statutes that are part of the Immigration and Nationality Act to conform them to the relevant international standard. A presumption that the court should conform its construction of an incorporative statute to the international standard would do even more to promote individual rights. Consequently, I believe that the widespread application of the borrowed treaty rule could have a direct and positive impact on the domestic implementation of human rights treaties. Its utility is not limited exclusively to coordinative treaties.
Ingrid also suggests that the Supreme Court in Sanchez-Llamas rejected the notion that U.S. courts should seek to interpret a particular treaty in the way that an international tribunal would. To be clear, I am not arguing that U.S. courts should view themselves as international tribunals when seeking to determine the meaning of incorporative statutes. Rather, I suggest that these courts should take a broad perspective on the nature of the interpretive project before them. Rather than reading an incorporative statute as though it were any other statute, the court should take into account the fact that a portion of the statutory text is derived from an international treaty and that other courts—at the national and international level—may likewise be called upon to consider the meaning of the source treaty. While there can be no doubt that the Supreme Court in Sanchez-Llamas gave short shrift to the views of the ICJ, there are many other examples where that court and the lower federal courts have looked to international and foreign law sources in order to determine the meaning of treaties and incorporative statutes. In taking this broad view, these courts have stepped outside their own legal system in an attempt to ascertain, as much as possible, the meaning of the relevant provisions in the (international) legal system from which they were taken. The borrowed treaty rule would require that U.S. courts take a similarly broad view.
Finally, I am not convinced that the Charming Betsy canon is, as Ingrid suggests, an adequate substitute for the borrowed treaty rule. The Charming Betsy canon applies where (1) a statute is ambiguous and (2) there is an actual conflict between one plausible construction of the statute and a rule of international law. Absent ambiguity or an actual conflict, the canon is inapposite. The borrowed treaty rule, by comparison, applies to guide the interpretations of all incorporative statutes regardless of whether they are ambiguous, and its application is also not predicated on the existence of any conflict. As such, the borrowed treaty rule is more likely to result in interpretations of incorporative statutes that are faithful to the meaning of the underlying treaty than is the Charming Betsy canon.