Incorporative Statutes and the Borrowed Treaty Rule

by John F. Coyle

[John F. Coyle is a Climenko Fellow and Lecturer on Law at Harvard Law School]

I want to thank Opinio Juris and the Virginia Journal of International Law for the opportunity to discuss my Article, “Incorporative Statutes and the Borrowed Treaty Rule.” I’d also like to express my gratitude to Professor Ingrid Wuerth of Vanderbilt Law School for providing a response to the piece.

This Article considers the question of how U.S. courts should interpret statutes that incorporate language and concepts derived from international treaties. Over the years, Congress has enacted such “incorporative statutes” in a number of areas, including conservation law, intellectual property law, arbitration law, maritime transport law, immigration law, and criminal law. While courts and scholars have previously examined these statutes on an individual basis, there has been little attention paid to incorporative statutes as a separate class of statutes.

This relative inattention has given rise to two problems.  The first is that courts called upon to construe incorporative statutes are generally unaware of the ways in which other courts have gone about this task.  It is virtually unheard of, for example, for a court examining an incorporative statute in the intellectual property context to look to how courts have construed an incorporative statute that relates to immigration law, notwithstanding their common animating purpose.  A second cost is a tendency by some scholars to misapprehend the proper scope of the long-standing Charming Betsy canon of statutory construction, which provides that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.”  Specifically, these scholars have advanced a view of the canon that erodes the distinction between incorporative and non-incorporative statutes and directs courts, in effect, to read all ambiguous statutes as though they were incorporative statutes.

This Article seeks to address both of these problems.  It first looks to a number of sources—including the structure and function of incorporative statutes, common law canons of construction, and the case law of the Supreme Court of the United States—to outline an interpretive framework for reading such statutes.  Under the proposed framework, courts should presume that a statute that incorporates language or concepts from a treaty should be read to conform to its interpretation of the language in the source treaty, regardless of whether the statute is ambiguous.  This presumption may be rebutted only by compelling evidence that Congress intended a different result.  The Article labels this approach “the borrowed treaty rule.”

The Article then goes on to distinguish the borrowed treaty rule from the Charming Betsy canon.  The view of the Charming Betsy canon that requires courts to construe all ambiguous statutes to conform to international law is misguided, the Article suggests, because it effectively abolishes the important and meaningful distinction between incorporative and non-incorporative statutes.  Unlike their incorporative brethren, non-incorporative statutes are statutes of general application, drafted without an eye to international law.  Courts called upon to interpret such statutes have no way of knowing whether Congress, had it foreseen the conflict between the statute and international law, would have chosen to redraft the statute to conform it to international law.  Moreover, none of the rationales underlying the borrowed treaty rule support its application to non-incorporative statutes.  In light of these and other differences, the proposition that courts should read ambiguous non-incorporative statutes in precisely the same way as incorporative statutes is untenable.  The Article proposes that whereas statutes that incorporate written international law should be read to conform to that law (in accordance with the borrowed treaty rule), ambiguous non-incorporative statutes should be read merely so as not to conflict with it (in accordance with the Charming Betsy canon, properly understood).

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