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 (1) 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 also 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. (2) It supports reliance on the ordinary meaning of the terms of a treaty. It recognizes that a treaty should be construed to give effect to its purposes. It agrees that a treaty should be read in the context in which the written words are used. It interprets terms in light of subsequent practice and 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. Although the Court has never systematically followed the holistic, unitary approach of the Vienna Rules, it consistently relies on the same interpretive tools. (3)
Bond marks an important moment in this history of Supreme Court treaty interpretation. It is the first time that the Supreme Court has analyzed a treaty 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." (4) 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 presumptions. (5)
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. 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. 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.
In Bond, treaty interpretation saved a constitutional crisis. In the future courts will likewise avoid the constitutional question of the scope of the treaty power. That is because treaties are formed with federalism in mind. Sometimes that concern is express, either in the text of the treaty or according to the reservations of Senate ratification. At other times, that concern is implicit as a general rule of international law. Treaty interpretation of those federalism limitations typically will lead courts to find that the federal government has not encroached on the inherent powers of the several states when adopting treaties.
This Article briefly outlines the Court's holding in Bond, and the general framework of interpretation set forth in the Vienna Rules. It then looks at Supreme Court jurisprudence that is consonant with the Vienna Rules. The Article then analyzes Bond's interpretive approach using the Vienna Rules methodology. It concludes with reflections on the future of Supreme Court treaty interpretation and how that interpretation could avoid reaching the constitutional question of the scope of the treaty power.
BOND V. UNITED STATES
In Bond v. United States (6) the Supreme Court addressed the question of whether legislation implementing a treaty prohibiting the use of chemical weapons should be interpreted to reach "a purely local crime." (7)If it did, the Court would revisit Missouri v. Holland? and address the constitutional question of the scope of the treaty power. The Court never reached the second question, finding that the statute implementing the Chemical Weapons Convention did not cover Bond's conduct. (9)
The operative language of the Chemical Weapons Convention provides that "[e]ach State Party to this Convention undertakes never under any circumstances: (a) To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone; [or] (b) To use chemical weapons." (10) The treaty defines "[c]hemical [w]eapons" as "[t]oxic chemicals and their precursors, except where intended for purposes not prohibited under this Convention." (11) In turn, a "[t]oxic [c]hemical" is defined as "[a]ny chemical which ... can cause death, temporary incapacitation or permanent harm to humans or animals." (12) Purposes that are not prohibited include "[i]ndustrial, agricultural, research, medical, pharmaceutical or other peaceful purposes." (13) Congress implemented the treaty by statute imposing the same prohibitions and using the same definitions set forth in the treaty. (14)
The Bond majority held that the statute implementing the treaty should be read consistent with federalism, and applying that background principle, Congress did not clearly intend to intrude on the police power of the states by reaching purely local crimes. (15) The Court analyzed the ordinary meaning of a "chemical weapon" in its context and in light of the object and purpose of the treaty. (16) The boundless and expansive reach of a broad definition of "chemical weapon" rendered the term ambiguous, and required the Court to consider the context from which the statute arose--a treaty about chemical warfare and terrorism. (17) "[T]he global need to prevent chemical warfare," the Court concluded, "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." (18)
Concurring in the judgment, Justice Scalia interpreted a "chemical weapon" solely on the basis of a textual analysis of the statutory definition. (19) That definition defines a chemical weapon as a "toxic chemical" used for any manner other than "a purpose not prohibited." (20) A "toxic chemical is any chemical which ... can cause ... permanent harm to humans or animals" and a "purpose not prohibited" is "[a]ny peaceful purpose related to an industrial, agricultural, research, medical, or pharmaceutical activity or other activity." (21) For Justice Scalia, the meaning of the statute was plain and applying it was uncomplicated: "Bond possessed and used 'chemical[s] which ... can cause ... permanent harm.' Thus, she possessed 'toxic chemicals.' And, because they were not possessed or used only for a 'purpose not prohibited,' ... they were 'chemical weapons.' Ergo, Bond violated the Act." (22)
Justice Scalia dismissed the Court's other interpretive devices as "unintelligible." (23) Ordinary meaning is irrelevant when the statutory definition is utterly clear. (24) No court or commentator since Aristotle has ever suggested otherwise. (25) And interpreting the statute in light of the concerns driving the treaty--acts of war, assassination, and terrorism--is simply an "illogical embellishment" that will render it more difficult to apply. (26)
As usual, absent from the Court's or concurring opinion's discussion on treaties was the definitive international standard for treaty interpretation. The Court has never relied on the Vienna Convention on the Law of Treaties to interpret treaties, and it did not do so in Bond. Unlike in the past, however, the Court's methodology was coextensive with the international standard for treaty interpretation.
THE VIENNA RULES
The Vienna Convention on the Law of Treaties provides the accepted international law framework for interpreting treaty provisions. The Vienna Convention's rules on interpretation have become "the virtually indispensable scaffolding for the reasoning on questions of treaty interpretation." (27)
Article 31 provides that "[a] treaty shall be interpreted 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." (28)
"Context" is defined, among other things, as "the text, including its preamble and annexes." (29) Context also includes "[a]ny agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty" and "[a]ny instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty." (30)
Supplementary means of interpretation, such as review of the travaux preparatoire (31) (negotiation history), are also permitted for limited purposes.
Article 32 provides that:
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning ... or to determine the meaning when the interpretation according to article 31: (a) Leaves the meaning ambiguous or obscure; or (b) Leads to a result which is manifestly absurd or unreasonable. (32) The fundamental idea behind these Vienna Rules is that the act of interpretation is analysis in pursuit of...