Volume 43 | Number 1 Fall 2007
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III. Treaty Interpretation
The nationalist and transnationalist models emphasize different canons of treaty interpretation. For transnationalists, the canon of good faith is the primary canon of treaty interpretation. According to the canon of good faith, a treaty must “be kept in most scrupulous good faith,”27 and “should be interpreted . . . in a manner to carry out its manifest purpose.”28 For nationalists, the canon of deference to the executive branch is the primary canon of treaty interpretation. According to this canon, “the meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight.”29
The transnationalist canon of good faith differs from the nationalist canon of deference to the executive in two key respects. First, transnationalists tend to look to international sources for guidance on treaty interpretation questions. In contrast, nationalists tend to look to domestic sources for guidance. Second, the primary policy objective underpinning the canon of good faith is the goal of avoiding friction in relationships with U.S. treaty partners. In contrast, the primary objective of the deference canon is to avoid friction between the judicial and executive branches. These distinctions between the nationalist and transnationalist models are matters of emphasis, not rigidly distinct categories. Even so, a difference in emphasis can lead to very different results in concrete cases.
The Supreme Court decision in Hamdan v. Rumsfeld30 illustrates the contrast between the nationalist and transnationalist approaches to treaty interpretation. The Court in Hamdan confronted two key treaty interpretation issues related to the Geneva Conventions. First, the Court had to decide whether the ongoing conflict between the United States and al Qaeda is a “conflict not of an international character” within the meaning of Common Article 3 of the Geneva Conventions.31 Second, the Court had to decide whether the military commission created by the Bush Administration was a “regularly constituted court,” as required by Common Article 3.32 The majority and the dissent in Hamdan disagreed on both points.33 Analysis of the main opinions demonstrates that the majority applied the transnationalist model, whereas the dissent applied the nationalist model.
Deference to the executive is the guiding principle of Justice Thomas’ analysis of the Geneva Conventions in his Hamdan dissent. In the context of analyzing Common Article 3, Justice Thomas refers twice to the Court’s “duty to defer to the President.”34 In four pages of analysis devoted to the Geneva Conventions, Justice Thomas invokes the canon of deference to the executive no less than four times.35 Remarkably, in his entire analysis of the treaty interpretation issues in Hamdan, Justice Thomas does not cite a single international authority, other than the text of the POW Convention itself, to support his interpretation of the treaty.36 Moreover, Justice Thomas argues explicitly that the Court should refrain from deciding the merits of Hamdan’s claim to avoid friction with the executive branch.37 In sum, Justice Thomas’ dissent is a textbook example of the nationalist approach to treaty interpretation.
In contrast, Justice Stevens’ majority opinion in Hamdan exemplifies the transnationalist approach. First, in contrast to the dissent, the majority cites a wide variety of international sources in support of its interpretation of Common Article 3. These include multiple citations to the ICRC Commentary on the Geneva Conventions,38 as well as citations to the International Court of Justice,39 the International Criminal Tribunal for Yugoslavia,40 and a book published by the International Committee of the Red Cross.41 Justice Stevens devotes six pages of his majority opinion to an analysis of the Geneva Conventions without once mentioning the canon of deference to the executive branch.42 Moreover, the Hamdan majority expressly rejects an interpretation of Common Article 3 that the President personally endorsed.43 Although Justice Stevens’ opinion does not expressly invoke the canon of good faith, his analysis is consistent with that canon.44 The international reaction to the Supreme Court decision in Hamdan provides further evidence of the transnationalist character of the majority opinion: the Court’s opinion helped reduce friction with U.S. treaty partners by reassuring them that at least one branch of the U.S. government was prepared to honor U.S. treaty commitments under the Geneva Conventions.
Professor Van Alstine has documented the fact that the transnationalist canon of good faith was the dominant approach to treaty interpretation in U.S. courts during the nineteenth and early twentieth centuries.45 He has also shown that judicial reliance on the canon of good faith declined in the latter half of the twentieth century.46 Although lower courts continue to invoke the good faith canon episodically,47 Professor Van Alstine claims that “the last recorded reference of any kind by the [Supreme] Court to the role of good faith in the judicial construction of international treaties was in its 1933 opinion in Factor v. Laubenheimer.”48
While the canon of good faith has declined, the canon of deference to the executive has ascended. In the early years of U.S. constitutional history, courts did not defer at all to executive branch treaty interpretations.49 Between 1789 and 1838, the U.S. government won only three of nineteen cases decided by the Supreme Court “in which the U.S. government was a party, at least one party raised a claim or defense on the basis of a treaty, and the Court decided the merits of that claim or defense.”50 These statistics contrast starkly with modern practice. Professor Chesney reviews sixty-seven published opinions in treaty interpretation cases between 1984 and 2005 “in which the court[s] engaged, more or less directly, the deference doctrine.”51 He finds that “the executive’s preferred interpretation prevailed in fifty-three out of sixty-seven opinions in the set.”52 Thus, there has been a fairly dramatic shift from the zero deference approach that courts applied in the early nineteenth century to the highly deferential approach that courts have applied in the past few decades.
Over the course of the twentieth century, the executive’s approach to treaty interpretation changed from a transnationalist approach that emphasized mutuality of obligation, to a nationalist approach that emphasizes unilateral advantage for the United States. This does not mean that executive treaty interpretation suddenly became a tool of foreign policy: it has undoubtedly been true since the birth of this nation that foreign policy considerations influenced the executive branch’s interpretation of treaty provisions.53 However, when the U.S. was a relatively weak nation, foreign policy considerations favored an approach to treaty interpretation that emphasized mutuality of obligation because the U.S. feared retaliation if other nations believed it was not honoring its treaty obligations.54 In contrast, in the post-Cold-War era there are very few countries that can cause serious harm to the United States. Since the U.S. need not fear retaliation, the foreign policy considerations that guide the executive branch favor an approach to treaty interpretation that is driven largely by an effort to maximize unilateral policy interests. Thus, when courts defer to executive treaty interpretations, the result nowadays is often a unilateralist approach, rather than a transnationalist approach that emphasizes mutuality of obligations. Whereas judicial application of the transnationalist canon of good faith promotes harmony with U.S. treaty partners, application of the nationalist canon of judicial deference to executive treaty interpretation frequently generates friction with U.S. treaty partners.55