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11/11/2012

Textualism and Interpretation of Treaties
Michael Ramsey

Opinio Juris is featuring a symposium on Duncan Hollis' new book on treaties (The Oxford Guide to Treaties), and the recent focus has been on treaty interpretation (Part IV of the book).  Comments include Richard Gardiner, Starting a Conversation on Interpretation; and Jean Galbraith, Comparing International and US Approaches to Interpretation.  An insightful point from the latter:

... I want to suggest that international and U.S. domestic approaches to treaty interpretation have largely moved in opposite directions over the last thirty years.  The Restatement (Third) of Foreign Relations Law (1987) emphasized that in the “United States tradition, the primary object of interpretation is to ‘ascertain the meaning intended by the parties’ rather than focus simply on the text” (§ 325, reporter’s note 4).  It specifically noted the special nature of IO [ed.: International Organization] charters, saying that the interpretation of such treaties should be subject to Chief Justice Marshall’s observation that “‘we must never forget that it is a constitution that we are expounding’” (§ 325, cmt. d).

Today, as Professor Brölmann indicates [ed.: in a Chapter in the Oxford Guide], international law accepts a strong teleological emphasis for the interpretation of at least some categories of treaties (such as IO charters).  Yet in the United States, this prospect has faded in favor of a more strictly textualist approach.  Contra to the Restatement, the Supreme Court in Medellin showed a marked preference for text as opposed to other possible sources of meaning.  It also showed no interest in a broader teleological approach in interpreting the U.N. Charter and the Statute of the ICJ.  Where the Restatement emphasized that IO charters are constitutional, Medellin treated them like ordinary treaties.  One can overemphasize this shift, which undoubtedly has its roots in broader changes in how U.S. courts approach statutory and constitutional interpretation, but it is nonetheless a real one.

Seems right to me.  I see it as part of a broader trend of rising formalism in US law and declining formalism in international law.