Bond and the Vienna Rules on Treaty Interpretation
Tomorrow I have the good fortune of participating in the Notre Dame Law Review symposium with leading foreign relations scholars. The topic of the symposium is Bond v. United States. The keynote will be given by Paul Clement, who won the case for Petitioner.
The focus of my discussion will be the relationship between Supreme Court treaty interpretation and the international approach to treaty interpretation. As readers of this blog well know, the Supreme Court has never followed the international approach to treaty interpretation. In the over forty years since the Vienna Convention on the Law of Treaties was signed, the Supreme Court has not relied on its interpretive methodology on a single occasion. This is despite the fact that the Vienna Convention’s interpretive approach (the “Vienna Rules”) reflected the common practice at the time it was adopted, and now reflects customary international law. This is despite the fact that the United States views the Vienna Convention as the authoritative guide to treaty law and practice.
This is not to suggest that the Supreme Court does not utilize the same interpretive tools as the Vienna Rules. Indeed, at one time or another the Court has used every single interpretive tool reflected in the Vienna Rules. It supports reliance on the ordinary meaning of the terms of a treaty. The Court has held that “[a]s treaties are contracts between independent nations, their words are to be taken in their ordinary meaning as understood in the public law of nations.” It recognizes that a treaty should be construed to give effect to its purposes, stating that “[a] treaty should be generally construed liberally to give effect to the purpose which animates it.” It agrees that a treaty should be read in context, reasoning that “when interpreting a treaty, we ‘begin with text of the treaty and the context in which the written words are used.’” It interprets terms in light of subsequent practice and subsequent agreements. It supports recourse to supplementary means of interpretation, such as the negotiating history. It follows general rules of interpretation such as presumptions and constructions that follow ordinary logic and reason. Thus, although the Court has never systematically followed the holistic, unitary approach of the Vienna Rules, it consistently relies on the same interpretive tools.
Bond v. United States marks an important moment in this history of Supreme Court treaty interpretation. Although it did not cite the Vienna Rules, it is the first time that the Supreme Court has analyzed a treaty (and it’s implementing legislation) using the same methodology as the Vienna Rules. That is, the Court interpreted the treaty “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” Because the terms of the treaty were ambiguous and could lead to manifestly absurd and unreasonable results, the Court also applied supplementary means of interpretation, including the negotiating history and a federalism presumption.
The ordinary meaning of the term “chemical weapon” was central to the Court’s analysis. “[A]s a matter of natural meaning, an educated user of English would not describe Bond’s crime as involving a ‘chemical weapon.’” The natural meaning of that term accounts for both the type of chemical used and the circumstances in which they were used. No ordinary person would consider that the chemical Bond used was a deadly toxin of the type the Chemical Weapons Convention was designed to address. The ordinary meaning of a “weapon” is an “instrument of offensive or defensive combat.” Using natural parlance, Bond’s behavior was not combat. Interpreting “chemical weapon” to include Bond’s crime “would give the [implementing] statute a reach exceeding [its] ordinary meaning.” Reliance on the ordinary meaning of “chemical weapon” plays a “limiting role” on the scope of the prohibition, and avoids transforming a “statute passed to implement the International Convention on Chemical Weapons into one that also make it a federal crime to poison goldfish.”
The Court in Bond extensively discussed the object and purpose of the Convention. It began with an image of the ravages of chemical warfare during the First World War as the impetus behind the overwhelming consensus that toxic chemicals should never be used as weapons of war. It cited the bold aspirations expressed in the Convention’s Preamble—the complete elimination of all types of weapons of mass destruction used by state and non-state actors in times of war and peace. These purposes were critical to the Court’s interpretation. “[T]he Convention’s drafters intended for it to be a comprehensive ban on chemical weapons … [and] we have doubts that a treaty about chemical weapons has anything to do with Bond’s conduct.” Given the purpose of the Convention to address “war crimes and acts of terrorism,” the Court concluded that “[t]here is no reason to think the sovereign nations that ratified the Convention were interested in anything like Bond’s common law assault.” It found that Bond’s chemical of choice—an arsenic-based compound that causes minor irritation when touched—bore “little resemble to the deadly toxins that are ‘of particular danger to the objectives of the Convention.’” The “purely local crime” that Bond committed “could hardly be more unlike the uses of mustard gas on the Western Front or nerve agents in the Iran-Iraq war that form the core concerns of the treaty.” Accordingly, the United States and the community of nations have no interest in seeing Bond imprisoned for violating the ban on chemical weapons. “[T]he global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon.”
The Court also repeatedly cited context as an interpretive aid. It concluded that “the context from which the [implementing] statute arose demonstrates a much more limited prohibition was intended” by the ban on chemical weapons. Rather than rely solely on the statutory definition the Court concluded that the “the improbably broad reach of the key statutory definition” was rendered ambiguous by “the context from which the statute arose—a treaty about chemical warfare and terrorism.” The Court interpreted the term “chemical weapon” in light of the entire Convention, including the Preamble, other treaty provisions, and the Annex on Chemicals. These provisions illuminated the purpose and structure of the ban on chemical weapons, and the nature of the banned chemicals.
Most importantly, the Court twice cited another provision of the Convention, which provides that “[e]ach State Party shall, in accordance with its constitutional processes, adopt the necessary measures to implement its obligations under this Convention.” It cited this provision as contextual support for a federalism presumption. The “constitutional process in our ‘compound republic’ keeps power ‘divided between two distinct governments.’” Faithful to federalism and other constitutional concerns, the Convention only required that “necessary measures” be adopted, leaving to the States how they would be adopted within their constitutional system. This context permitted the Court to interpret the treaty obligation consistent with a federalism presumption, a presumption that has a longstanding history within the Court’s jurisprudence.
Bond raises the possibility that the Court’s interpretive approach could more closely align with the international standard. There already are existing canons of construction that support a greater reliance on the Vienna Rules. Among them is the general rule that treaties are contracts between nations that should be interpreted according to a shared understanding. As the Court recently put it, “[a] treaty is in its nature a contract between nations, not a legislative act.” Therefore, “it is our responsibility to read the treaty in a manner consistent with the shared expectations of the contracting parties.” If the shared expectations of the contracting parties is that treaty terms should be interpreted according to the Vienna Rules, then it follows that the Court could apply that canon not only to interpret the meaning of specific treaty terms, but also to its interpretive methodology. It would not do so because the United States has ratified the Vienna Convention or that the Vienna Rules are otherwise part of United States law. Rather, the Court would rely on them because with every treaty the contracting parties have the expectation that the treaty terms will be interpreted using the Vienna Rules.
Another canon of construction is that the Court should give deference to the Executive Branch’s interpretation of treaties. If the Executive Branch recognizes that the Vienna Rules are the authoritative guide to treaty interpretation, then the Court should give great weight to that conclusion. Ordinarily this deference applies to the Executive Branch’s interpretation of specific treaty terms. But it could also support the Executive Branch’s support for the Vienna Rules as the authoritative guide to treaty interpretation. As the United States argued in one recent case, “[a]lthough the United States has not ratified the Vienna Convention on the Law of Treaties, the United States generally recognizes the Convention as an authoritative guide to treaty interpretation.” If the United States views the Vienna Rules as the authoritative guide to treaty interpretation, and the Supreme Court gives deference to Executive Branch’s interpretation of treaties, then the Court could rely on the Vienna Rules in deference to the Executive Branch.
The Supreme Court has long ignored the Vienna Rules. Bond does not change that fact, but it does give support for courts to rely on the interpretive tools that form the basis for the Vienna Rules. The Court has always accepted the tools of interpretation reflected in the Vienna Rules. It now has accepted those tools as part of a holistic, unitary approach. The Vienna Rules are hidden behind the veil of Bond’s interpretative methodology. Consistent with accepted canons of construction, the Court could rely on the Vienna Rules more explicitly.