Wednesday, November 30, 2005

Executive Treaty Interpretations

Federal courts routinely assert that they are bound to give deference to treaty interpretations adopted by the Executive branch. See, e.g., Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 184-85 (1992) (stating that the "meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight"). And, at least as an anecdotal matter, conventional wisdom holds that the executive viewpoint does prevail in most, if not quite all, instances. But is conventional wisdom accurate on this score? I'm inclined to agree that courts do tend to conform to the executive viewpoint, but it also seems likely that the nature of judicial deference to executive treaty interpretations might vary in different contexts.

Potentially relevant variables might include: the manner in which the Executive's "view" is made known to the court (e.g., the view might be stated by the U.S. as a litigant in its own brief; it might be stated by the U.S. as amicus; it might be stated in diplomatic correspondence that is brought to the attention of the court by private litigants; or it might be implicit in U.S. practice which is then brought to the attention of the court by litigants); whether the Executive's "view" was presented to the Senate during the process of obtaining its consent to the treaty (an issue that generated considerable debate during the 1980s in connection with the Reagan Administration's proposed reinterpretation of the ABM Treaty); whether the current Executive view departs from a prior view; and, of course, the subject-matter in issue. The more one thinks about these and other potential distinctions, the more it seems that it would be a mistake to view judicial deference to executive treaty interpretations as a monolithic phenomenon.

Why do I mention all of this? Well, I've recently drafted an essay setting forth my initial thoughts on the topic, and am now in the process of collecting cases in connection with a quasi-empirical inquiry into the matter. I'd be quite grateful for any suggestions that readers may have as I go about refining the design of this project.

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