Author: John F. Coyle

by John F. Coyle

Many thanks to Ingrid Wuerth for her thoughtful response to my Article.

I agree with Ingrid that the importance of maintaining a uniform international standard in the interpretation of incorporative statutes may be especially salient in the context of treaties, like the Hague Rules, that address coordination problems.  I disagree, however, that the borrowed treaty rule is of little salience in the context of human rights treaties that seek to establish minimum international standards.  An international standard contained in a human rights treaty is typically invoked by domestic litigants only where its application would result in increased protection of individual rights; it is the rare case in which the government is the first to cite to a human rights treaty.  In most (though not all) cases, a presumption requiring the court to consult the relevant international standard as a prelude to interpreting a domestic statute implementing that treaty seems likely to produce tangible benefits vis-à-vis individual rights.  Certainly this was true in INS v. Cardoza-Fonseca, where the petitioner successfully urged the Supreme Court to interpret incorporative statutes that are part of the Immigration and Nationality Act to conform them to the relevant international standard.  A presumption that the court should conform its construction of an incorporative statute to the international standard would do even more to promote individual rights.  Consequently, I believe that the widespread application of the borrowed treaty rule could have a direct and positive impact on the domestic implementation of human rights treaties.  Its utility is not limited exclusively to coordinative treaties.

Ingrid also suggests that the Supreme Court in Sanchez-Llamas rejected the notion that U.S. courts should seek to interpret a particular treaty in the way that an international tribunal would.  To be clear, I am not arguing that U.S. courts should view themselves as international tribunals when seeking to determine the meaning of incorporative statutes.  Rather, I suggest that these courts should take a broad perspective on the nature of the interpretive project before them.  Rather than reading an incorporative statute as though it were any other statute, the court should take into account the fact that a portion of the statutory text is derived from an international treaty and that other courts—at the national and international level—may likewise be called upon to consider the meaning of the source treaty.  While there can be no doubt that the Supreme Court in Sanchez-Llamas gave short shrift to the views of the ICJ, there are many other examples where that court and the lower federal courts have looked to international and foreign law sources in order to determine the meaning of treaties and incorporative statutes.  In taking this broad view, these courts have stepped outside their own legal system in an attempt to ascertain, as much as possible, the meaning of the relevant provisions in the (international) legal system from which they were taken.  The borrowed treaty rule would require that U.S. courts take a similarly broad view.

Finally, I am not convinced that the Charming Betsy canon is, as Ingrid suggests, an adequate substitute for the borrowed treaty rule.  The Charming Betsy canon applies where (1) a statute is ambiguous and (2) there is an actual conflict between one plausible construction of the statute and a rule of international law.  Absent ambiguity or an actual conflict, the canon is inapposite.  The borrowed treaty rule, by comparison, applies to guide the interpretations of all incorporative statutes regardless of whether they are ambiguous, and its application is also not predicated on the existence of any conflict.  As such, the borrowed treaty rule is more likely to result in interpretations of incorporative statutes that are faithful to the meaning of the underlying treaty than is the Charming Betsy canon.

by John F. Coyle

[John F. Coyle is a Climenko Fellow and Lecturer on Law at Harvard Law School]

I want to thank Opinio Juris and the Virginia Journal of International Law for the opportunity to discuss my Article, “Incorporative Statutes and the Borrowed Treaty Rule.” I’d also like to express my gratitude to Professor Ingrid Wuerth of Vanderbilt Law School for providing a response to the piece.

This Article considers the question of how U.S. courts should interpret statutes that incorporate language and concepts derived from international treaties. Over the years, Congress has enacted such “incorporative statutes” in a number of areas, including conservation law, intellectual property law, arbitration law, maritime transport law, immigration law, and criminal law. While courts and scholars have previously examined these statutes on an individual basis, there has been little attention paid to incorporative statutes as a separate class of statutes.

This relative inattention has given rise to two problems.  The first is that courts called upon to construe incorporative statutes are generally unaware of the ways in which other courts have gone about this task.  It is virtually unheard of, for example, for a court examining an incorporative statute in the intellectual property context to look to how courts have construed an incorporative statute that relates to immigration law, notwithstanding their common animating purpose.  A second cost is a tendency by some scholars to misapprehend the proper scope of the long-standing Charming Betsy canon of statutory construction, which provides that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.”  Specifically, these scholars have advanced a view of the canon that erodes the distinction between incorporative and non-incorporative statutes and directs courts, in effect, to read all ambiguous statutes as though they were incorporative statutes.

This Article seeks to address both of these problems.  It first looks to a number of sources—including the structure and function of incorporative statutes, common law canons of construction, and the case law of the Supreme Court of the United States—to outline an interpretive framework for reading such statutes.  Under the proposed framework, courts should presume that a statute that incorporates language or concepts from a treaty should be read to conform to its interpretation of the language in the source treaty, regardless of whether the statute is ambiguous.  This presumption may be rebutted only by compelling evidence that Congress intended a different result.  The Article labels this approach “the borrowed treaty rule.”

The Article then goes on to distinguish the borrowed treaty rule from the Charming Betsy canon.  The view of the Charming Betsy canon that requires courts to construe all ambiguous statutes to conform to international law is misguided, the Article suggests, because it effectively abolishes the important and meaningful distinction between incorporative and non-incorporative statutes.  Unlike their incorporative brethren, non-incorporative statutes are statutes of general application, drafted without an eye to international law.  Courts called upon to interpret such statutes have no way of knowing whether Congress, had it foreseen the conflict between the statute and international law, would have chosen to redraft the statute to conform it to international law.  Moreover, none of the rationales underlying the borrowed treaty rule support its application to non-incorporative statutes.  In light of these and other differences, the proposition that courts should read ambiguous non-incorporative statutes in precisely the same way as incorporative statutes is untenable.  The Article proposes that whereas statutes that incorporate written international law should be read to conform to that law (in accordance with the borrowed treaty rule), ambiguous non-incorporative statutes should be read merely so as not to conflict with it (in accordance with the Charming Betsy canon, properly understood).