The shifting sands of treaty interpretation.

Author:Berry, David
Position:Proceedings of the One Hundred Second Annual Meeting of the American Society of International Law: The Politics of International Law

This panel was convened at 9:00 am on Saturday, April 12, by the Dispute Resolution and International Legal Theory Interest Groups. It was moderated by Ian Johnstone, Associate Professor of International Law at the Fletcher School of Law and Diplomacy, Tufts University, who introduced the panelists: David Berry of the University of the West Indies; Isabelle Van Damme of Clare College, University of Cambridge; Gregory Fox of Wayne State University Law School; and Duncan B. Hollis of Temple University's School of Law. *


By Ian Johnstone ([dagger])

Among the various sources of international law, treaties are thought to rest on the firmest theoretical foundation as they embody the explicit consent of sovereign states formalized in a written text. Similarly, treaty interpretation would not seem to give rise to deep theoretical controversies, with the rules systematically laid out in the Vienna Convention on the Law of Treaties. And yet debates about treaty interpretation are as old as international law itself. The "ordinary meaning" of words can rule out highly implausible interpretations, but rarely provides a single right answer to actual legal disputes. The Vienna Convention asks us to look at context, object and purpose in interpreting the text, but rather than settling the theoretical questions, this simply transfers the inquiry to another level: what are the relevant contextual instruments and how are 'object and purpose' to be determined? The intentions of the drafters may provide some guidance, but what if--as is almost always the case--those intentions vary or the circumstances to which the treaty is being applied did not exist at the time of drafting?

This familiar list of interpretive strategies and the theoretical questions surrounding them are all the more important in an "age of treaties," when legal problem-solving is less focused on the creation of new legal regimes than the understanding of existing obligations. Its connection to the theme of this conference is apparent: to what extent do any or all of these interpretive techniques reach beyond law? Is treaty interpretation simply a matter of stating what the law is, or are the interpreters making law, based on values and policy choices? If the latter, are the values and policies embodied in the law, or do they reflect the interpreter's political preferences? As the description for this panel suggests, in many ways, the choice of an interpretive theory is a proxy for a larger debate about international law's relation to politics.

That debate, moreover, plays out not only in courts--at the national and international levels but also in other venues where legal rules are discussed, interpreted and applied. Indeed, most interpretive disputes are not settled in courts. Many are debated in quasi-judicial committees and non-judicial bodies in international organizations. Often the final interpreters of a treaty are representatives of the contracting parties themselves, who are institutionally predisposed to interpretations preferred by their governments. From that perspective, treaty interpretation is deeply political. But does that imply that words mean nothing other than what the government legal adviser says they mean? Such a radically subjective conception of interpretation seems to defy common sense: if it were true, then why is agreement among legal interpreters so common? Perhaps it is because they are part of an interpretive community, subject to the same discipline--the same techniques of legal argumentation--that constrains judges. But how great a constraint is that?

This panel wrestles with those and other theoretical questions addressed explicitly or implicitly in various dispute settlement bodies. Concrete cases are used to illuminate the role of politics in international law, and to consider whether and in what ways law stands separate from international politics.

* Professor Fox did not contribute remarks to the Proceedings.

([dagger]) Associate Professor of International Law, Fletcher School of Law and Diplomacy, Tufts University.


By Duncan B. Hollis *

The treaty has become the Cinderella of American jurisprudence--it is the unwanted stepchild of our judiciary. Clearly, U.S. courts have responsibility for treaties. Article III of the U.S. Constitution vests federal judicial power over "all" cases arising under treaties. Article VI defines the "supreme Law of the Land" to comprise not only the Constitution and U.S. laws, but also "all Treaties made, or which shall be made, under the Authority of the United States." And if that is not clear enough, Article VI goes on to direct state court judges to abide by such authority, notwithstanding anything in their states' laws or constitutions.

Such textual clarity aside, U.S. courts are increasingly reluctant to employ the treaty in exercising their judicial function with the same fervor as its two Supremacy Clause siblings--the Constitution and the statute. The Supreme Court's recent decision in Medellin v. Texas makes that point starkly. The Medellin Court found that none of the three treaties at issue were judicially enforceable since they were not "binding federal law in the absence of implementing legislation." (1) The Court invoked Chief Justice Marshall's Foster v. Neilson opinion, bifurcating treaties into two categories and suggesting that courts only apply a treaty when it "operates of itself without the aid of any legislative provision." (2) From Foster, U.S. courts have created a doctrine for judging treaties depending on whether they are deemed "self-executing" or "non-self-executing."

But just as her stepmother unfairly judged Cinderella, U.S courts have unfairly judged how treaties should operate in U.S. law. The "self-execution" doctrine is incoherent, inaccurate, and incomplete. Medellin does little to redress these deficiencies; at most, the Court sought to remedy the doctrine's incoherence, but its efforts introduced new areas of confusion while continuing to ignore the doctrine's inaccuracy and insufficiency. If anything, Medellin demonstrates the need for rethinking how courts approach treaties to better align with the Supremacy Clause's underlying purpose of promoting U.S. treaty compliance.

So, what did Medellin do? First, it presented a method for distinguishing self-executing and non-self-executing treaties. For decades, neither lower courts nor academics could agree on what made treaties fall within one category or the other:

* Was it the treaty text--as Marshall's Foster opinion suggests that determines if a treaty operates by itself or requires implementing legislation?

* Was it the U.S. treaty-makers' intent, visible, for example, in Senate resolutions of advice and consent to various human fights treaties?

* Or, was it a contextual, multi-factored test, as several circuit courts proposed? (3)

The Medellin Court rejected the multi-factored approach, while adopting an "intentional" test, mixing elements of the other two methods. The Court looked first and foremost at treaty text, but did so apparently to identify the President and Senate's intent for the treaty's domestic effect. (4) Absent evidence of self-executing intent, Medellin reasoned that treaties are non-self-executing. The Court's approach ruled out any presumption of self-execution, and in searching for affirmative evidence of intent, may imply a presumption against self-execution. Thus, Medellin likely means courts will allocate more existing U.S. treaties into the non-self-executing camp than they might have previously.

This expansion in the number of non-self-executing treaties may have important consequences given the Court's second contribution to the doctrine--delineating what effects flow from labeling a treaty self-executing or non-self-executing. Pre-Medellin, three competing views existed on what it meant for a treaty to be non-self-executing:

* Did it mean private litigants could not invoke the treaty as the basis for a cause of action?

* Or, did it mean the treaty was not justiciable in any way?

* Or, more broadly, did it mean the treaty lacked the force of domestic law entirely?

Medellin's Majority appeared to adopt the third view--treaties are "not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be 'self-executing' and is ratified on these terms." (5) Alternatively, one could read the Court's opinion more narrowly to support the second, "non-justiciable" position by interpreting references to "domestic law" as short-hand for "judicially enforceable" domestic law. Thus, although Medellin teaches that non-self-execution does more than deny private rights of action, it creates new confusion over what it means to say non-self-executing treaties do not qualify as "domestic law."

But even if we view Medellin as improving the self-executing doctrine's coherence, the Court did nothing to redress the doctrine's inaccurate and incomplete image of U.S. treaty law and practice. The doctrine contemplates only two potential domestic effects for U.S. treaties--either a treaty is self-executing and speaks to courts just like a statute, or it is non-self-executing and speaks to Congress, leaving judicial consideration of the treaty to await future legislative action. Most judicial (and academic) discussions of non-self-executing treaties assume they bind the United States internationally to unenforceable obligations where Congress has yet to act (thus risking U.S. non-compliance). Such characterizations are clearly inaccurate. In reality, the U.S. government has a policy and practice of not joining a treaty until it has determined U.S. domestic law comports with whatever international law obligations the treaty imposes.

Simply put, the Executive does not believe in joining treaties until whatever execution into U.S. law it believes is necessary has occurred. The Executive does this...

To continue reading