Roger Paul Alford (Notre Dame Law School) has posted Bond and the Vienna Rules (Notre Dame Law Review, Vol. 90, No. 1561, 2015) on SSRN. Here is the abstract:
The Supreme Court has never followed the international approach to treaty interpretation. In the over forty years since the Vienna Convention on the Law of Treaties was signed, the Supreme Court has not relied on its interpretive methodology on a single occasion. This is despite the fact that the Vienna Convention’s interpretive approach (the “Vienna Rules”) reflected the common practice at the time it was adopted, and now reflects customary international law. This is also despite the fact that the United States views the Vienna Convention as the authoritative guide to treaty law and practice.
This is not to suggest that the Supreme Court does not utilize the same interpretive tools as the Vienna Rules. Indeed, at one time or another the Court has used every single interpretive tool reflected in the Vienna Rules. It supports reliance on the ordinary meaning of the terms of a treaty. It recognizes that a treaty should be construed to give effect to its purposes. It agrees that a treaty should be read in the context in which the written words are used. It interprets terms in light of subsequent practice and agreements. It supports recourse to supplementary means of interpretation, such as the negotiating history. It follows general rules of interpretation such as presumptions and constructions that follow ordinary logic and reason. Although the Court has never systematically followed the holistic, unitary approach of the Vienna Rules, it consistently relies on the same interpretive tools.
Bond v. United States marks an important moment in this history of Supreme Court treaty interpretation. It is the first time that the Supreme Court has analyzed a treaty using the same methodology as the Vienna Rules. That is, the Court interpreted the treaty “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” Because the terms of the treaty were ambiguous and could lead to manifestly absurd and unreasonable results, the Court also applied supplementary means of interpretation, including the negotiating history and presumptions.
Bond raises the possibility that the Court’s interpretive approach could more closely align with the international standard. There already are existing canons of construction that support a greater reliance on the Vienna Rules. Among them is the general rule that treaties are contracts between nations that should be interpreted according to a shared understanding. If the shared expectations of the contracting parties is that treaty terms should be interpreted according to the Vienna Rules, then it follows that the Court could apply that canon not only to interpret the meaning of specific treaty terms, but also to its interpretive methodology. Another canon of construction is that the Court should give deference to the Executive Branch’s interpretation of treaties. If the Executive Branch recognizes that the Vienna Rules are the authoritative guide to treaty interpretation, then the Court should give great weight to that conclusion.
This Article briefly outlines the Court’s holding in Bond, and the general framework of interpretations set forth in the Vienna Rules. It then looks at Supreme Court jurisprudence that is consonant with the Vienna Rules. The Article then analyzes Bond’s interpretive approach using the Vienna Rules methodology. It concludes with reflections on the future of Supreme Court treaty interpretation and how that interpretation could avoid reaching the constitutional question of the scope of the Treaty Power.