{"id":528637,"date":"2010-04-15T11:00:29","date_gmt":"2010-04-15T15:00:29","guid":{"rendered":"http:\/\/opiniojuris.org\/?p=11965"},"modified":"2010-04-15T11:00:29","modified_gmt":"2010-04-15T15:00:29","slug":"incorporative-statutes-and-the-borrowed-treaty-rule","status":"publish","type":"post","link":"https:\/\/mereja.media\/index\/528637","title":{"rendered":"Incorporative Statutes and the Borrowed Treaty Rule"},"content":{"rendered":"

by John F. Coyle <\/em><\/strong><\/p>\n

[John F. Coyle<\/a> is a Climenko Fellow and Lecturer on Law at Harvard Law School]<\/p>\n

I want to thank\u00a0Opinio Juris<\/em> and the Virginia Journal of International Law<\/em> for the opportunity to discuss my Article, \u201cIncorporative Statutes and the Borrowed Treaty Rule<\/a>.\u201d I\u2019d also like to express my gratitude to Professor Ingrid Wuerth of Vanderbilt Law School for providing a response to the piece.<\/p>\n

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 \u201cincorporative statutes\u201d 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<\/em> of statutes.<\/p>\n

This relative inattention has given rise to two problems.\u00a0 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.\u00a0 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.\u00a0 A second cost is a tendency by some scholars to misapprehend the proper scope of the long-standing Charming Betsy<\/em> canon of statutory construction, which provides that \u201can act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.\u201d\u00a0 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.<\/p>\n

This Article seeks to address both of these problems.\u00a0 It first looks to a number of sources\u2014including the structure and function of incorporative statutes, common law canons of construction, and the case law of the Supreme Court of the United States\u2014to outline an interpretive framework for reading such statutes.\u00a0 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.\u00a0 This presumption may be rebutted only by compelling evidence that Congress intended a different result.\u00a0 The Article labels this approach \u201cthe borrowed treaty rule.\u201d<\/p>\n

The Article then goes on to distinguish the borrowed treaty rule from the Charming Betsy<\/em> canon.\u00a0 The view of the Charming Betsy<\/em> 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.\u00a0 Unlike their incorporative brethren, non-incorporative statutes are statutes of general application, drafted without an eye to international law.\u00a0 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.\u00a0 Moreover, none of the rationales underlying the borrowed treaty rule support its application to non-incorporative statutes. \u00a0In 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.\u00a0 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<\/em> canon, properly understood).<\/p>\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

by John F. Coyle [John F. Coyle is a Climenko Fellow and Lecturer on Law at Harvard Law School] I want to thank\u00a0Opinio Juris and the Virginia Journal of International Law for the opportunity to discuss my Article, \u201cIncorporative Statutes and the Borrowed Treaty Rule.\u201d I\u2019d also like to express my gratitude to Professor Ingrid […]<\/p>\n","protected":false},"author":6771,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[7],"tags":[],"class_list":["post-528637","post","type-post","status-publish","format-standard","hentry","category-news"],"_links":{"self":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/528637","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/users\/6771"}],"replies":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/comments?post=528637"}],"version-history":[{"count":0,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/528637\/revisions"}],"wp:attachment":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/media?parent=528637"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/categories?post=528637"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/tags?post=528637"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}