The Oxford Guide to Treaties Symposium: Comparing International and US Approaches to Interpretation

by Jean Galbraith

[Jean Galbraith is Assistant Professor at Rutgers-Camden School of Law]

Congratulations to Duncan Hollis and the contributors to The Oxford Guide to Treaties [OGT].  This is a magnificent volume — one that fully lives up to its aim of “explor[ing] treaty questions from theoretical, doctrinal, and practical perspectives.”  For an edited volume, it is a remarkably coherent treatise.  Personal views of the individual authors do emerge, but they rarely dominate the doctrinal presentation.  Where the law is unclear, this is acknowledged by individual authors or sometimes by the very structure of the book itself.

Nowhere is this more clear than with regard to treaty interpretation.  By my count, OGT offers no fewer than four approaches to treaty interpretation.  Three are laid out in Part IV, which is explicitly devoted to treaty interpretation.  Richard Gardiner explores the foundational VCLT rules; Catherine Brölmann focuses on the interpretation of constitutive treaties creating IOs; and Başak Çali addresses the interpretation of human rights treaties.  The fourth approach to treaty interpretation is found in David Sloss’s contribution on the domestic application of treaties.  Professor Sloss points out that some domestic courts take what he terms a “nationalist approach” and emphasize domestic rather than international principles of treaty interpretation (such as a canon of deference to the positions of their executive branches).  His lead example for this is the United States, and he explicitly cites the Supreme Court’s Medellin decision from 2008.

Here, I want to suggest that international and U.S. domestic approaches to treaty interpretation have largely moved in opposite directions over the last thirty years.  The Restatement (Third) of Foreign Relations Law (1987) emphasized that in the “United States tradition, the primary object of interpretation is to ‘ascertain the meaning intended by the parties’ rather than focus simply on the text” (§ 325, reporter’s note 4).  It specifically noted the special nature of IO charters, saying that the interpretation of such treaties should be subject to Chief Justice Marshall’s observation that “‘we must never forget that it is a constitution that we are expounding’” (§ 325, cmt. d).

Today, as Professor Brölmann indicates, international law accepts a strong teleological emphasis for the interpretation of at least some categories of treaties (such as IO charters).  Yet in the United States, this prospect has faded in favor of a more strictly textualist approach.  Contra to the Restatement, the Supreme Court in Medellin showed a marked preference for text as opposed to other possible sources of meaning.  It also showed no interest in a broader teleological approach in interpreting the U.N. Charter and the Statute of the ICJ.  Where the Restatement emphasized that IO charters are constitutional, Medellin treated them like ordinary treaties.  One can overemphasize this shift, which undoubtedly has its roots in broader changes in how U.S. courts approach statutory and constitutional interpretation, but it is nonetheless a real one.

One interesting question for treaty interpretation going forward (particularly for those of us interested in treaty interpretation by the United States) is to what extent this shift in U.S. judicial approaches has and will affect interpretative positions taken by the U.S. executive branch.  In some sense, this is the flip of Professor Sloss’s point about U.S. courts deferring to the executive branch.  U.S. courts may indeed defer to the executive branch, but the executive branch in turn may interpret treaties in line with the interpretive principles set out by U.S. courts.  This in turn might affect the positions taken by the United States as an actor within IOs.

This is just one example of the issues and questions that reading the OGT brought to my mind.  I wish I had had it available to me in my past work, and I know I will be turning to it often in my future work.  It is a truly rich resource for practitioners and scholars alike.

http://opiniojuris.org/2012/11/09/the-oxford-guide-to-treaties-symposium-comparing-international-and-us-approaches-to-interpretation/

2 Responses

  1. An “outsider” treads warily in matters largely within another national legal system, especially where a decision may turn as much on domestic criteria for finding a treaty to be self-executing as on approaches to treaty interpretation; but is any deference by U.S. courts to the executive branch really likely to lead to a divergence between international approaches to interpretation and domestic approaches, or could it actually make adoption of an international approach more likely? 

    The U.S. brief in Abbott v Abbott notes that “the United States generally recognizes the Convention [VCLT] as an authoritative guide to treaty interpretation”.  Does this not make it look as if the executive is likely to adopt an international approach?
     
    There is of course great scope for differing assessments of the weight to be given to the various interpretative elements present in any case.  In its commentary on the draft articles which were to form the VCLT, the International Law Commission stressed the inseparability of object and purpose from the ordinary meaning: “the ordinary meaning of a term is not to be determined in the abstract but in the context of the treaty and in the light of its object and purpose”. Thus it included a purposive element at the outset. But the ILC also considered subsequent practice to be an obviously important element in treaty interpretation: “for it constitutes objective evidence of the understanding of the parties as to the meaning of the treaty”.  

    There is scope for argument about the justifications for the relative weight attached to practice and to object and purpose. In both Abbott and Medellin the majority seems to have been influenced, at least in part, by practice of or in other states; but does that not simply reflect the same scope for differing views when international tribunals apply the same principles of interpretation?  
     

  2. Interesting comment — thank you.  I view deference to the executive branch as orthogonal to adherence to the VCLT rules.  A U.S. court will presumably give deference to an executive branch determination whether or not this determination rests on a VCLT rules approach.  This raises the question of what approach the executive branch will take.  
    You suggest that perhaps (1) the executive branch will take a VCLT approach and (2) this in turn will promote convergence rather than divergence with international approaches.  This may be true much of the time, but I think there will also be points of divergence.  Let me give two reasons why.
    First, even if the executive branch takes a VCLT approach, it may find itself out of line with some international interpretative approaches (e.g., treating IO charters as constitutional & any evolving approaches to human rights treaties).  
    Second, I’m not sure how much the executive branch will in fact take a VCLT approach going forward.  I suspect that just as the courts defer to the executive branch on the interpretation of specific treaties, so the executive branch will find itself influenced by the general approach to treaty interpretation taken by the Supreme Court.  And despite having the VCLT raised in briefs involving treaty interpretation, the Supreme Court in recent years has minimized references to the VCLT in favor of cites to its own precedent about treaty interpretation.  The majority opinion in Abbott v. Abbott, for example, doesn’t mention the VCLT and instead leads with a quote from Medellin about how “the interpretation of a treaty, like the interpretation of a statute, begins with its text.”  This is not necessarily divergent from the VCLT approach and I certainly agree with you that there’s a lot of legitimate space within the VCLT rules.  Nonetheless, this kind of language from the Supreme Court overemphasizes pure text relative to object/purpose/good faith and that may matter.  It will be interesting to keep an eye on going forward.

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