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Senate Materials and Treaty Interpretation: Some Research Hints for the Supreme Court

Published online by Cambridge University Press:  27 February 2017

Detlev F. Vagts
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Extract

In his concurring opinion in the recent tax treaty case United States v. Stuart, Justice Scalia reports that “I have been unable to discover a single case in which this Court has consulted the Senate debate, committee hearings or committee reports” to interpret a treaty. Even more sweepingly, he says that two 1988 opinions in a district court are the “first (and, as far as I am aware, the only) federal decisions relying upon pre-ratification Senate materials for the interpretation of a treaty.” He moves from there to conclude that the “Restatement (Third) of the Foreign Relations Law of the United States §314, Comment d (1986); id., §325, Reporter’s [sic] Note 5 … must be regarded as a proposal for change rather than a restatement of existing doctrine.” Those are the paragraphs in which the Restatement approves the use of such materials.

Type
Editorial Comments
Information
American Journal of International Law , Volume 83 , Issue 3 , July 1989 , pp. 546 - 550
Copyright
Copyright © American Society of International Law 1989

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References

1 109 S.Ct. 1183, 1195(1989).

2 Id. at 1196. The two opinions are Rainbow Navigation, Inc. v. Department of Navy, 686 F.Supp. 354, 699 F.Supp. 339 (D.D.C. 1988).

3 109 S.Ct. at 1196–97.

4 The computer is particularly useful in searches to prove a negative. Compare State ex ret. Grant v. Brown, 39 Ohio St. 2d 112, 118, 313 N.E.2d 847, 851 (1974), appeal dismissed, 420 U.S. 916 (1975): “In fact, nowhere in the recorded decisions of the Ohio Supreme Court has any justice ever used the term ‘homosexual’ or ‘homosexuality[ ]’’… .” Footnote 3 reads: “Computerized research, using LEXIS, discloses this fact.”

5 The cases before Stuart are, starting with the most recent, Volkswagenwerk A.G. v. Schlunk, 108 S.Ct. 2104, 2110, 2113, 2115–16 (1988); Societe Nationale Industrielle Aerospatiale v. United States Dist. Court for the S. Dist. of Iowa, 107 S.Ct. 2542, 2549, 2559 (1987); Air France v. Saks, 470 U.S. 392, 397, 403 (1985); Immigration & Naturalization Service v. Stevic, 467 U.S. 407, 417–18 (1984); Trans World Airlines v. Franklin Mint Corp., 466 U.S. 243, 250, 257 (1984); Warren v. United States, 340 U.S. 523, 527 n.5 (1951).

6 621 F.2d 1179 (2d. Cir.), cert, denied, 449 U.S. 856 (1980).

7 290 U.S. 276, 299 n.6 (1933).

8 5 G. Hackworth, Digest of International Law 262 (1943). Just possibly, the German official’s response was, “I understand your problems with the Senate because I remember Bismarck using the aphorism that ‘No man should see how laws or sausages are made.’ ” Cited by Scalia, J., in Community Nutrition Inst. v. Block, 749 F.2d 50, 51 (D.C. Cir. 1984).

9 I am partly to blame for this. Because it involved a mere Reporters’ Note, I did not in the cross-reference table, 2 Restatement (Third) of Foreign Relations Law of the United States 477 (1987), cross-reference old §151 to new §325.

10 The case is Japan Line Ltd. v. County of L.A., 20 Cal. 3d 180, 189 n.5, 141 Cal. Rptr. 905, 911 n.5, 571 P.2d 254, 260 n.5 (1977), rev’d on other grounds, 441 U.S. 434 (1979). Such citations can be found in Shepards or in pocket parts to the 1965 Restatement. It is worth reiterating that there was no “Restatement (First).”

11 109 S.Ct. at 1197 n.*.

12 The ABM Treaty and the Constitution: Joint Hearings Before the Senate Comms. on Foreign Relations and on the Judiciary, 100th Cong., 1st Sess. 351–64 (1987).

13 Maximov v. United States, 373 U.S. 49, 54 n.2 (1963), cited as to that very page in 109 S.Ct. at 1194.

14 Justice Scalia’s misplacement of the apostrophe in “Reporters’ Note” puts more blame or credit on Professor Henkin and less upon Professors Lowenfeld, Sohn and Vagts than is appropriate. Credit for detecting this typographical error goes to my research assistant, Carlo Kostka.