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Treaty Interpretation and the New American Ways of Law Reading
Detlev F. Vagts1
Full text available: PDF format *
I. Introduction
The aim of this article is to introduce the reader to developments in treaty interpretation theory and practice in the United States. It is designed, in particular, to guide readers from other countries in understanding that endeavour and in situating it in the context of theories of interpretation being developed and contested in other fields of American law. There has been a veritable explosion of theoretical writing on interpretation in such fields as Constitutional law, the construction of statutes and the interpretation of contracts. That mass can only be tersely summarized here. These theories arose in an environment influenced both by intellectual currents and by political power struggles in the United States; the former aspect suggests that they might be exportable whereas the latter indicates that they may be specific to the United States. This article explores whether those modes might make a useful contribution to the process of construing treaties or whether, on the other hand, they might threaten the degree of international consensus that presently prevails about the meaning of treaties. Such disagreement might complicate both the jobs of the drafters of an agreement between nations with divergent traditions and the tasks of tribunals and other interpreters who are called upon to generate authoritative readings of conventions. Would it, on the other hand, bring forth interpretations that are more just or better?
This article bypasses the more exotic types of interpretation theory - semiotics, Critical Legal Studies, post modernism and the like - that have been ignored or rejected by judges, even though they have produced challenging works, including significant contributions to international law.2 The emphasis here will be on those branches of theory which have had, or promise to have, an impact on the world of affairs, that is, which have been discussed by American judges and other interpreters - legal realism, public choice theory and the like. The focus here is on a practical level, less intent on finding `the' right way of interpreting this class of texts than on identifying techniques that clarify, that help achieve the targets of the drafters and that further a fruitful interaction between the writers and the readers of these documents.
These are important tasks. It is hard enough to achieve agreement in substance on issues that divide the nations of the world in ways that affect their vital interests. What a tragic consequence it would be if nations could not find commonly understood words to memorialize their agreements. The maintenance of an order built on at least an understanding of what divides irreconcilable differences from common ground is an important function for diplomats and lawyers.3
We begin with an explanation of the context of treaty law, a topic that specialists in international law may choose to skip. The next section explores the tradition of treaty construction, with a view to the types of decision-makers who are involved in the interpretative process. We then run through brief examinations of each of the major American fields where interpretive methods compete against each other, examining each of them to see how they might shed light on the construction of international agreements. These portions are structured so as to be accessible to European readers for whom such interpretive approaches are novel. The conclusion is that treaty interpretation is surrounded by so many unique conditions that carry over from other styles is not apt to be helpful. An exception may be in the process of developing the interpretation of certain multilateral agreements such as the Treaty of Rome and the European Human Rights Convention that have institutional characteristics in common with the United States Constitution. Finally, it is concluded that the true difficulty with the practice of United States courts in treaty interpretation arises not from new theory, but from an old preference for reading treaties as fitting into the familiar landscape of American law, rather than facing the reality that treaties in fact change national law.
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1 Professor of Law, Harvard Law School.
The author is indebted
for thoughtful reading and criticism to James Boyle, Louis Henkin and Frederick
Schauer. I thank Alicia Curry, Catalina Garay and Natalie Muecke for research
assistance.
2 D. Kennedy, International Legal Structures (1987); M. Koskenniemi,
International Legal Structures from Apology to Utopia: The Structure of
International Legal Argument (1989).
3 Of another field of interpretation the philosopher Rorty wrote:
`[c]ivilization reposes on a lot of people who take the normal practices of the
discipline with full "realistic" seriousness.' Quoted in Moore, `A Natural Law
Theory of Interpretation', 58 Southern California Law Review (1985) 277,
310 n.71.
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Tuesday, October 14, 2003 11:54AM