Interpreting Treaties

prev | next

Article II, Section 2, Clause 2:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

All three branches of government play a part in treaty interpretation. When analyzing a treaty for purposes of applying it as domestic law of the United States, U.S. courts have final authority to interpret the treaty’s meaning.1 The Supreme Court has stated that its goal in interpreting a treaty is to discern the intent of the nations that are parties to the treaty.2 The interpretation process begins by examining “the text of the treaty and the context in which the written words are used.” 3 When a treaty provides that it is to be concluded in multiple languages, the Supreme Court has analyzed foreign language versions to help understand the treaty’s terms.4 The Court also considers the broader “object and purpose” of a treaty.5 In some cases, the Supreme Court examines extratextual materials, such as drafting history,6 the views of other state parties,7 and the post-ratification practices of other nations.8 But the Court has cautioned that consulting sources outside the text may not be appropriate when the treaty is unambiguous.9

In the context of treaties made with Indian Tribes, the Court has held that such treaties impose judicially enforceable duties on the federal government only when the treaties contain “specific rights-creating or duty-imposing” language.10 In Arizona v. Navajo Nation the Court held that an 1868 treaty establishing a reservation and reserving water rights for the Navajo Nation did not impose judicially enforceable affirmative duties on the federal government to assess or secure those water rights.11

The Executive Branch also plays a role in interpreting treaties, especially outside the context of domestic litigation and when operating in the realm of international affairs. The Executive Branch generally is responsible for carrying out treaties’ requirements and determining whether other countries fulfill their obligations to the United States.12 In performing this role, the Executive Branch often must interpret treaties’ provisions and mandates.13 In addition, some questions of treaty interpretation may involve presidential discretion or otherwise may present “political questions” that are more appropriately resolved in the political branches than in the courts.14

Within the Executive Branch, the Department of Justice participates in treaty interpretation as part of its statutory responsibilities to provide legal opinions within the Executive Branch15 and represent the United States in litigation.16 The Department of State, which oversees treaty negotiations,17 often is able to provide authoritative interpretations based on its access to information about negotiating history and the views of treaty partners.18 Because the Executive Branch may have special insight into a treaty’s meaning, the Supreme Court has stated that the Executive Branch’s views are entitled to “great weight.” 19 But the Court has not adopted the Executive Branch’s interpretation in every case.20 And interbranch disputes may arise if the Executive Branch changes its interpretation and departs from the shared understanding of the executive and the Senate at the time of ratification.21

The Legislative Branch also influences treaty interpretation. The Senate may directly shape interpretation during the advice-and-consent process by making its consent to ratification conditioned upon a particular understanding of a treaty’s terms.22 The President may not ratify a treaty unless he accepts the Senate’s interpretation or the Senate agrees to withdraw it.23 After the advice-and-consent process, however, the Senate’s ability to influence treaty interpretation is more restrained. According to a 1901 Supreme Court decision, Senate resolutions that purport to interpret a treaty after ratification are “without legal significance” because the “meaning of the treaty cannot be controlled by subsequent explanations of some of those who may have voted to ratify it.” 24 That said, the Legislative Branch may still play a role in treaty interpretation when it passes implementing legislation or other treaty-related laws.25 For example, when treaties require countries to ensure certain actions are criminalized in domestic law, Congress might interpret the treaty during the legislative process when it defines the prohibited actions in U.S. law; determines appropriate punishments; and decides whether domestic law already prohibits the conduct.26

1: See Sanchez-Llamas v. Oregon, 548 U.S. 331, 353–54 (2006) ( “If treaties are to be given effect as federal law under our legal system, determining their meaning as a matter of federal law ‘is emphatically the province and duty of the judicial department.’” ) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)).
2: See, e.g., BG Grp., PLC v. Republic of Argentina, 572 U.S. 25, 37 (2014); Lozano v. Montoya Alvarez, 572 U.S. 1, 11 (2014); Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 183 (1982); Wright v. Henkel, 190 U.S. 40, 57 (1903).
3: See, e.g., Monasky v. Taglieri, No. 18-935, slip. op. 1, 7 (U.S. Feb. 25, 2020) (quoting Air France v. Saks, 470 U.S. 392, 397 (1985)); Water Splash, Inc. v. Menon, No. 16-254, 581 U.S. 271, 272 (2017) (quoting Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 (1988)); Société Nationale Industrielle Aérospatiale v. U.S. Dist. Ct. for S. Dist. of Iowa, 482 U.S. 522, 534 (1987).
4: See, e.g., Water Splash, No. 18-935, slip. op. at 7–8; Schlunk, 486 U.S. at 699. In one case, the Supreme Court changed its conclusion about the self-executing effect of a provision in an 1819 treaty with Spain after analyzing an authenticated Spanish-language version of the text. See supra ArtII.S2.C2.1.9 Effect of Treaties on the Constitution, at n.19.
5: See, e.g., Abbott v. Abbott, 560 U.S. 1, 20 (2010); Sanchez-Llamas, 548 U.S. at 347; Société Nationale Industrielle Aérospatiale, 482 U.S. at 530; E. Airlines, Inc. v. Floyd, 499 U.S. 530, 552 (1991).
6: See, e.g., Monasky, No. 18-935, slip. op. at 8–9; Water Splash, No. 18-935, slip. op. at 7–8; Medellín v. Texas, 552 U.S. 491, 507 (2008); Air France, 470 U.S. at 400; Schlunk, 486 U.S. at 700.
7: See, e.g., Water Splash, No. 18-935, slip. op. at 7–9; Abbott, 560 U.S. at 16; Lozano, 572 U.S. at 12; Air France, 470 U.S. at 404.
8: See, e.g., Medellín, 552 U.S. at 507; Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 259 (1984).
9: See Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 134 (1989) ( “We must thus be governed by the text—solemnly adopted by the governments of many separate nations—whatever conclusions might be drawn from the intricate drafting history that petitioners and the United States have brought to our attention. The latter may of course be consulted to elucidate a text that is ambiguous . . . . But where the text is clear, as it is here, we have no power to insert an amendment.” ).
10: Arizona v. Navajo Nation, No. 21-1484, slip op. at 7 (U.S. June 22, 2023) (citing United States v. Navajo Nation, 537 U.S. 488, 506 (2003)).
11: Id. at 2, 13.
12: See Cong. Rsch. Serv., Treaties and Other International Agreements: The Role of the United States Senate, S. Rep. No. 106-71, at 12–13 (2001) [hereinafter Treaties and Other International Agreements] ( “The executive branch has the primary responsibility for carrying out treaties and ascertaining that other parties fulfill their obligations after treaties and other international agreements enter into force . . . . The executive branch interprets the requirements of an agreement as it carries out its provisions.” ); Constitutionality of Legislative Provision Regarding ABM Treaty, 20 Op. O.L.C. 246, 248–49 (1996) (discussing the Executive Branch’s view on the President’s power over treaty interpretation and execution); Restatement (Fourth) of Foreign Relations Law §306 cmt. g (2018) ( “Execution of a treaty requires interpretation, and the President often determines what a treaty means in the first instance.” ).
13: See supra note 12.
14: In Charlton v. Kelly, for example, the Supreme Court declined to decide whether Italy violated its extradition treaty with the United States, reasoning that, even if a violation occurred, the President “elected to waive any right” to respond to the breach by voiding the treaty. See 229 U.S. 447, 475 (1913). For discussion of Charlton and the political question doctrine, see ArtIII.S2.C1.9.1 Overview of Political Question Doctrine.
15: See 28 U.S.C. § 512 ( “The head of an executive department may require the opinion of the Attorney General on questions of law arising in the administration of his department.” ). For background on the Department of Justice’s advice-giving function, see ArtII.S2.C2.1.4 Self-Executing and Non-Self-Executing Treaties, at n.43.
16: See 28 U.S.C. § 516 ( “Except as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General.” ).
17: See U.S. Dep’t of State, 11 Foreign Affairs Manual § 724.1 (2006), https://fam.state.gov/fam/11fam/11fam0720.html ( “Negotiations of treaties . . . are not to be undertaken, nor any exploratory discussions undertaken with representatives of another government or international organization, until authorized in writing by the Secretary [of State] or an officer specifically authorized by the Secretary for that purpose.” ).
18: See, e.g., Lozano, 572 U.S. at 21–22 (accepting the State Department’s interpretation of the Hague International Child Abduction Convention); Sumitomo Shoji Am., 457 U.S. at 184–85 (adopting the State Department’s interpretation of a Treaty of Friendship, Commerce and Navigation between Japan and the United States); Kolovrat v. Oregon, 366 U.S. 187, 194–95 (1961) (examining the State Department’s diplomatic notes and correspondence in examining an 1881 Treaty between the United States and Serbia for Developing Commercial Relations).
19: See Water Splash, No. 18-935, slip. op. at 7–8 (quoting Abbott, 560 U.S. at 15); Medellín, 552 U.S. at 513; Sumitomo Shoji Am., 457 U.S. at 184–85; Kolovrat, 366 U.S. at 194.
20: See BG Grp., 572 U.S. at 37 (construing a dispute resolution provision in an investment treaty between the United Kingdom and Argentina and concluding “[w]e do not accept the Solicitor General’s view as applied to the treaty before us” ); Hamdan v. Rumsfeld, 548 U.S. 557, 629–30 (2006) (declining to adopt the Executive Branch’s interpretation of Common Article 3 of the 1949 Geneva Conventions).
21: For example, the Reagan Administration proposed to advance a new interpretation of the 1972 Treaty on the Limitation of Anti-Ballistic Missile Systems (AMB Treaty) with the Soviet Union that would have allowed the U.S. to test a space-based missile defense system. See generally ABM Treaty Interpretation Dispute: Hearing Before the Subcomm. on Arms Control, Int’l Sec. & Sci. of the H. Comm. on Foreign Affs., 99th Cong. (1985); Strategic Defense Initiative: Hearing Before the Subcomm. on Strategic & Theater Nuclear Forces of the S. Comm. on Armed Servs., 99th Cong. (1985); ABM Treaty and the Constitution: Joint Hearings Before the S. Comm. on Foreign Rel. & the S. Comm. on the Judiciary, 100th Cong. 81–105 (1987); Abraham D. Sofaer, The ABM Treaty and the Strategic Defense Initiative, 99 Harv. L. Rev. 1972 (1986). Some in Congress argued that the new interpretation contradicted the shared understanding of the Executive Branch and the Senate when the ABM Treaty was ratified, and the Reagan Administration ultimately decided not to rely on its new interpretation. See Treaties and Other International Agreements, supra note 12, at 128–29; John Yoo, Politics As Law?: The Anti-Ballistic Missile Treaty, the Separation of Powers, and Treaty Interpretation, 89 Cal. L. Rev. 851, 860 (2001). Since this controversy, the Senate at times has conditioned its advice and consent to treaties on what has become known as the “Biden Condition,” which provides that “the United States shall interpret the Treaty in accordance with the common understanding of the Treaty shared by the President and the Senate at the time the Senate gave its advice and consent to ratification.” See, e.g., 134 Cong. Rec. 12849 (1988).
22: See, e.g., 164 Cong. Rec. S8052 (daily ed. Jan. 2, 2019) (providing the Senate’s advice and consent to ratification of the U.N. Convention on Assignment of Receivables in International Trade conditioned on, among other things, the understanding that the treaty would not regulate securities); 143 Cong. Rec. 22795 (1997) (resolution of advice and consent to the Constitution and Convention of the International Telecommunications Union conditioned on, among other things, the understanding that the treaty’s reference to “geographical situation of particular countries” would not “imply a recognition of claim to any preferential rights to the geostationary-satellite orbit” ). For discussion of the Senate’s conditional consent authority and its ability to issue reservations, understandings, and declarations, see ArtII.S2.C2.1.2 Historical Background on Treaty-Making Power
23: See ArtII.S2.C2.1.2 Historical Background on Treaty-Making Power.
24: See The Diamond Rings, 183 U.S. 176, 180 (1901).
25: Accord Louis Henkin, Foreign Affairs and the U.S. Constitution 206 (2d ed. 1996) ( “Congress . . . has occasion to interpret a treaty when it considers enacting implementing legislation, or other legislation to which the treaty might be relevant.” ).
26: For example, the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention) requires countries to make torture and other defined offenses punishable by “appropriate” penalties in domestic law. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 4, Dec. 10, 1984, 23 I.L.M. 1027, 1465 U.N.T.S. 85 [hereinafter Torture Convention] ( “Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.” ). The legislation implementing the Torture Convention appears to interpret this provision by making torture resulting in death a capital offense and torture that does not result in death punishable by imprisonment up to 20 years. 18 U.S.C. § 2340A(a).