The Supreme Court decided two treaty cases yesterday: Lozano v. Montoya Alvarez (involving the Hague Convention on Civil Aspects of Child Abduction) and BG Group plc v. Republic of Argentina (involving the bilateral investment treaty between the U.K. and Argentina). In both cases, the Court stated as an uncontroversial proposition that the meaning of the treaty turned on the intent of the parties as reflected in the treaty's text and context.
Justice Breyer in BG Group, p. 10 (for seven Justices, but the dissent did not contest the point):
As a general matter, a treaty is a contract, though between nations. Its interpretation
normally is, like a contract’s interpretation, a matter of determining the parties’ intent. Air France v. Saks, 470 U. S. 392, 399 (1985) (courts must give “the specific words of the treaty a meaning consistent with the shared expectations of the contracting parties”)…
Justice Thomas for a unanimous Court in Montoya Alvarez, p. 8:
For treaties, which are primarily “‘compact[s] between independent nations,’” Medellín v. Texas, 552 U. S. 491, 505 (2008), our “duty [i]s to ascertain the intent of the parties” by looking to the document’s text and context, United States v. Choctaw Nation, 179 U. S. 494, 535 (1900); see also BG Group plc v. Republic of Argentina, post, at 10.
As I have said before about statutes, this is just originalism without the name. Why it is so much less controversial here than in constitutional interpretation is worth some thought (although, to be sure, some treaties are interpreted very differently — and much more like living constitutions — by some advocates and decisionmakers).
In particular, some scholars and commentators (including some at the conference on history and the constitutional law I recently attended) seem to believe that constitutional originalism is not only unwise but logically or practically incoherent, because it is simply impossible to derive legal rules from the historical understandings of the drafters and ratifiers. I wonder, then, what these people think about treaties and statutes.
As an aside, on the merits in Montoya Alvarez, the unanimous Court seemed to have it right: Justice Thomas concluded that the treaty did not allow equitable tolling because it did not do so expressly and equitable tolling was not part of the international "backdrop" against which the treaty was drafted and ratified. The opinion has this notable point about "backdrops" [pp. 9-10]:
… [T]here is no general presumption that equitable tolling applies to treaties. Congress is presumed to incorporate equitable tolling into federal statutes of limitations because equitable tolling is part of the established backdrop of American law. Rotella v. Wood, 528 U. S. 549, 560 (2000) (“[F]ederal statutes of limitations are generally subject to equitable principles of tolling”). It does not follow, however, that we can export such background principles of United States law to contexts outside their jurisprudential home.
It is particularly inappropriate to deploy this background principle of American law automatically when interpreting a treaty. … It is our “responsibility to read thetreaty in a manner ‘consistent with the shared expectations of the contracting parties.’” Olympic Airways v. Husain, 540 U. S. 644, 650 (2004) (quoting Air France v. Saks, 470 U. S. 392, 399 (1985); emphasis added). Even if a background principle is relevant to the interpretation of federal statutes, it has no proper role in the interpretation of treaties unless that principle is shared by the parties to “an agreement among sovereign powers,” Zicherman v. Korean Air Lines Co., 516 U. S. 217, 226 (1996).
Lozano has not identified a background principle of equitable tolling that is shared by the signatories to the Hague Convention….
Posted at 6:54 AM