A Response to John Coyle by Ingrid Wuerth

[Ingrid Wuerth is a Professor of Law at Vanderbilt University Law School]

This Article by John Coyle focuses on U.S. statutes that incorporate treaties into domestic law. As John defines them, incorporative statutes may include implementing legislation for non-self executing treaties, statutes that facilitate the implementation of self-executing treaties, or congressional executive agreements; the key question is whether they give effect to an international agreement. Unlike treaties or the Alien Tort Statute, incorporative statutes do not present obvious constitutional questions, and they have received relatively little attention from commentators. The Article argues that considering these statutes as a group yields two insights: (a) courts should presume that incorporative statutes conform in meaning to the text of the treaty that they incorporate; and (b) pursuant to the Charming Betsy canon, courts should interpret ambiguous non-interpretive statutes merely to avoid violations of international law, not to favor conforming interpretations. The scope and basis of the Charming Betsy canon has been examined and debated at some length, so I will focus my comment on John’s innovative first argument.

Why should courts employ a presumption that incorporative statutes conform in meaning to the treaty to which they give effect? It seems that courts generally do interpret treaties in this way, as the Article explains, and in the end I was not fully convinced that we need this presumption in addition to the Charming Betsy canon. In support of a presumption, the Article argues that the underlying purpose of treaties is to create a “uniform international standard” and that the core function of incorporative statutes is to bring this uniform international standard into domestic law. While the creation of a uniform standard may be especially significant for some kinds of treaties, like those that solve coordination problems, it seems that many treaties (like human rights treaties) may only really be concerned with creating a minimum standard (and this is captured by the Charming Betsy canon), and above that minimum standard there is no reason to presume that uniformity is especially significant for either domestic or international actors. Statutes like the TVPA (which is defined as incorporative) just don’t seem driven by a desire to conform domestic law to international law.

The Article also invokes the “borrowed statute rule” to support the presumption. One aspect of that rule, as the Article explains, is its reliance on the opinions of the high court from the jurisdiction from which the statute is borrowed; here the Article argues that courts should interpret treaties as international tribunals would. Respectful consideration notwithstanding, there seems to be some tension between this approach and the Sanchez-Llamas opinion, which both rejected the dissent’s emphasis on uniformity and gave little deference to the ICJ opinion. Finally, another basis proffered for the presumption is that it largely tracks what courts already do. Indeed there are very good reasons for courts to interpret a statute with an eye toward the treaty that it seeks to implement. And because a treaty is obviously involved, Congress had the opportunity to consider the international implications of the statute it drafted; indeed, the Article argues that Congress intends to conform domestic to international law. Why employ a presumption if courts do pretty well without one, and we have reason to the think that the language Congress uses reflects its views on conformity? Other presumptions—against extraterritoriality and Charming Betsy for example—help courts evaluate aspects of a statute that Congress likely did not consider explicitly.

I only have 28 words left! Just enough to thank John for the interesting Article and for drawing our attention to an underexamined class of statutes. And to congratulate him on the new job at Carolina—go ‘Heels.