Treaties as Contracts: Textualism, Contract Theory, and the Interpretation of Treaties

Article excerpt



   A. Treaty Interpretation in the Supreme Court
   B. The Theoretical Problem


   A. Originalism and Treaty Interpretation
   B. Public Choice Theory and the Structural Case for Textualism in
      Statutory Interpretation
   C. The Structural Argument Applied to Treaty Interpretation
   D. The Practical Application of Textualism to Treaty Interpretation


     A. Relational Contract Theory
        1. Good Faith
        2. Past Practice
        3. Parol Evidence
     B. Assessing a Contract Regime in Treaty Interpretation



The Supreme Court has long stated that treaties adopted under Article II of the Constitution are not acts of "legislation" but rather "contracts" between sovereign nations. (1) This contract analogy was most recently invoked by both the majority and the dissent in Olympic Airways v. Husain. (2) Increasingly, however, the Court's treaty jurisprudence has borne the mark of "new textualism." (3) Starting with his concurring opinion in United States v. Stuart, (4) Justice Scalia has vigorously argued that separation of powers and rule of law concerns dictate that the Court restrict its inquiry in treaty interpretation cases to the four corners of the agreement. Although the Court as a whole has not accepted all aspects of Scalia's argument--such as his aversion to the use of materials from Senate ratification debates (5)--textualism has become influential in treaty interpretation.

The coexistence of these two themes in treaty jurisprudence--textualist methodology and the notion that treaties are contracts--is problematic. Contracts are valid only to the extent that there is mutual assent by the contracting parties to a shared proposition. (6) The text of the contract document is important in determining the scope of the agreement, but it serves only as evidence of what the agreement is. In the legislative context, the text of a statute is the agreement. As a result of this divergence, the interpreter's tasks in the construction of contracts and statutes are fundamentally different. The interpreter in a contractual dispute is interested primarily in how the parties themselves would interpret the terms of the contract. An interpreter of statutes following a textualist methodology focuses on the meanings that neutral third parties ascribe to particular terms.

This Note will argue that between these two contending principles of treaty interpretation, the contract analogy should prevail. The strongest justifications for textualism in statutory interpretation--adherence to the Article I, Section 7 lawmaking process and greater legislative accountability-do not extend to the treaty context. Likewise, as a practical matter, it is harder to apply textualism to treaty interpretation because certain interpretive aids that textualists employ--linguistic canons and references to how given terms are used in the U.S. Code at large--are inappropriate guides to resolving ambiguities in treaties. The contract approach, by contrast, has strong grounding in the text, structure, and history of the Constitution. Further, contract theory could succeed where existing treaty doctrine fails, by providing a consistent, well-grounded framework for courts to use when resolving ambiguities in treaties.

Specifically, the courts should borrow from relational contract theory in developing new canons of treaty interpretation. Within this framework, contract formalism--textualism's private law cousin--would continue to play a role in treaty interpretation, particularly for treaties of limited scope that resemble one-time, discrete contracts in a commercial setting. However, a more flexible interpretive approach should apply to treaties that govern repeat interactions between parties over a long period of time. …