Dynamic treaty interpretation.

• Author: Van Alstine, Michael P.

INTRODUCTION

"[T]o alter, amend, or add to any treaty, by inserting any clause, whether small or great, important or trivial, would be on our part an usurpation of power, and not an exercise of judicial functions. It would be to make, and not to construe a treaty. Neither can this Court supply a casus omissus in a treaty, any more than in a law. We are to find out the intention of the parties by just rules of interpretation applied to the subject matter; and having found that, our duty is to follow it as far as it goes, and to stop where that stops-whatever may be the imperfections or difficulties which it leaves behind."(1)

With this passage in Chan v. Korean Air Lines, an opinion authored not surprisingly by justice Antonin Scalia, a new strain of restrictive formalism in statutory interpretation spreads to the construction of an international treaty. Proponents of this "new textualism" assert that federal courts must refrain from any invasive interpretive techniques, regardless of the effects on the long-term health of a statutory body of law. Supporters of "dynamic" interpretation, in contrast, recognize an active judicial role in ensuring the vitality of statutes. As Chan illustrates, the construction of treaties has also now fallen under the influence of this enduring controversy over the powers of federal courts to develop statutory law.

Indeed, few subjects have fascinated--and divided--legal scholars in recent years as much as the appropriate role of the judiciary in the interpretation of statutes. For much of this country's legal history, statutory interpretation received little close scholarly attention.(2) Matters, began to change in the latter half of this century, however, as the nation's social and economic problems increasingly required broad legislative (and in particular federal) solutions. By 1982, Guido Calabresi was able to observe with little risk of contradiction that this country had entered an "age of statutes."(3) The message was not lost on scholars. In the decade and a half since judge Calabresi's telling observation, the interpretation of statutes as this nation's new "primary source of law,(4) has become one of the most animated themes of American legal scholarship.(5)

But as courts and scholars continue to dissect the implications of our "age of statutes,"(6) the law is already rapidly progressing into the next significant stage in its development: unification on a transactional level. The initial focus in this direction has been on private, and in particular commercial, law. Recent years have witnessed the emergence of a whole new generation of international conventions designed to unify the law governing international commercial transactions. The forward edge for this new generation now also has become its paradigm: the United Nations Convention on Contracts for the International Sale of Goods (the "U.N. Sales Convention" or CISG).(7) In addition to the United States, this Convention has already been ratified by nations whose combined economies account for nearly two-thirds of all world trade.(8)

The push toward an international unification of the law has not ended there. In the last decade, international conferences have adopted conventions governing such diverse subjects as financial leasing, factoring, bills of exchange and promissory notes, and stand-by letters of credit. Drafting work is also proceeding apace on a variety of like-minded projects, including international security interests as well as receivables financing.(9) Taken together, these conventions form the foundation for a proto-"International Uniform Commercial Code."

This maturation of the law into the international dimension also carries subtle but powerful consequences for the allocation of authority in our federal system. The law unification efforts of this new generation take the constitutional form of treaties.(10) Senate ratification of a particular convention thus results (as was the case with the U.N. Sales Convention) in the federalizing of the law within its scope.(11) A derivative consequence is that questions of interpretation and application will "aris[e] under ... [a] Treat[y]" of the United States,(12) and thus fall within the "federal question" jurisdiction of the federal courts.(13) At issue in the ratification process, in other words, is nothing less than federal arrogation of traditional state competence in the law governing private, and in particular commercial, relations.(14)

Unfortunately, extant Supreme Court jurisprudence on the interpretation of treaties is ill-equipped to accommodate this next significant stage in the development of the law. In large measure, this jurisprudence remains rooted in the public international law premise that treaties solely reflect a "contract" between sovereign nations.(15) The consequence has been an inflated view of both the subjective intent of "the parties" and the degree of appropriate deference to the views of the Executive Branch in interpretive inquiries.(16) Whatever their propriety in that context, such considerations are considerably less compelling for international conventions that regulate solely commercial relations between private entities.(17)

Moreover, and more destructively, the Court's treaty jurisprudence has fallen under the strong influence of a resurgent strain of formalism in domestic statutory interpretation. Although sometimes liberal in rhetoric, the common practical outcome of treaty interpretation by the Court has been of a distinctly conservative nature. Echoing the Chan opinion with which this Article began, the Court has consistently refused to view a treaty as a body of integrated norms that is capable of generating internal solutions for gaps in its provisions. Is Instead, when faced with an unsettled question under a treaty, the common approach has been to retreat to otherwise-applicable domestic law, "`whatever may be the imperfections or difficulties '"(19) this may leave in the fulfillment of the international law project.

This Article will demonstrate that the new generation of international conventions rejects this narrow conception of the judicial function. Inspired by a paradigm established in the U.N. Sales Convention, these commercial law conventions contemplate an active role for the courts in developing the law within their scope. I will argue that an essential element of this dynamic interpretive process is a delegation of authority to fashion new substantive law as normative gaps emerge in a convention's express provisions. The consequence is a repudiation of the resurgent strain of restrictive formalism that has gained recent prominence in domestic statutory interpretation and that has influenced Supreme Court treaty jurisprudence as well.

Parts I and II set the context for an analysis of this dynamic interpretive process. Part I first explores the contention that much of the Supreme Court's treaty caselaw is inapposite for the interpretation of international conventions that regulate purely private relations. It then examines the continuing controversy in the United States over the appropriate role of the judiciary in domestic statutory interpretation. The goal of this exercise is to set the jurisprudential context for a parallel analysis of the "autonomous" interpretive regime embraced in the U.N. Sales Convention and its progeny.

Part II introduces the core elements of this interpretive regime. I demonstrate there that the interpretive paradigm established in the U.N. Sales Convention endorses a policy favoring an "internal" filling of gaps and resolution of ambiguities. That is, it empowers adjudicators to resolve unsettled questions not through a retreat to domestic law, but rather on the basis of the "general principles" reflected in a convention's regulatory scheme.

Part III is the heart of this Article, for it is there that I address the repudiation of the essential tenets of the "new textualism" that has gained recent prominence in domestic statutory interpretation. Part III.A first demonstrates that, contrary to the animating theme of textualism, the U.N. Sales Convention and its progeny sanction a broad repertoire of interpretive techniques in the judicial development of the law. This includes an active resort to the drafting history that gave life to the relevant international convention.

But as Part III.B then shows, it is in the role of adjudicators in filling normative gaps that the effects of this dynamic interpretive process will be most pronounced. I argue that the "general principles" methodology amounts to a delegation of lawmaking authority to federal courts within the scope of an international convention. The particular significance of this conclusion emerges from an observation that such "general principles" are nowhere expressly identified, and many the existence of which is more evident (such as "good faith" and "reasonableness") have neither a preordained nor an immutable content. Implicit in this approach is thus an active role for the judiciary in identifying and giving substance to the principles that will guide the future development of the law.

This conclusion alone strikes at the foundation of a restrictive formalist approach to the lawmaking powers of federal courts. The international dimension raises its significance to a higher power. Bolstered by mandatory deference to the needs of international uniformity, I argue that the delegation of lawmaking authority amounts to an instruction to the federal judiciary to participate with courts of other member nations in fashioning an international common law around the frame of an international convention. Part III.B then contrasts this internal-development methodology with the substantial continuing influence of the preexisting common law under the Uniform Commercial Code in this country.

It is difficult to overstate the impact of an internal-development methodology as the law-unification movement progresses into...