09 Nov The Oxford Guide to Treaties Symposium: Comparing International and US Approaches to Interpretation
[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.