Joshua Weiss · July 2011
79 GEO. WASH. L. REV. 1592 (2011)
From establishing partnerships to setting international norms, treaties have always played an important role in managing U.S. relations abroad. Unsurprisingly, questions about who has interpretive power over treaties are not new. Beyond a vague notion that the Executive’s treaty interpretations receive some deference, however, a coherent framework for evaluating executive treaty interpretations has yet to emerge.
A number of scholars have proposed utilizing administrative law doctrines to address executive deference in treaty interpretation, though none of the proposals is entirely satisfactory. This Essay proposes a new test for evaluating executive treaty interpretations: an executive treaty interpretation should receive deference if the interpretation is consistent with the treaty text as well as available evidence of the treaty’s intended meaning (including its drafting history, the practices of other parties and the Senate’s reservations, understandings, and declarations), and if the Executive’s reasoning in reaching that interpretation is neither arbitrary nor capricious. This test would grant the Executive substantial interpretive leeway while ensuring that any proposed interpretation is tethered to the terms of the treaty and is subject to meaningful review.
This Essay proceeds in three parts. Part I discusses the Supreme Court’s muddled treaty interpretation caselaw as well as administrative law doctrines relevant to treaty interpretation. Part II analyzes the spectrum of modern proposals for executive treaty deference, with particular attention paid to those that borrow from administrative law. Part III proposes an alternative approach to the question of deference that distills existing administrative law tests in order to achieve an optimal balance between executive deference and judicial review. Part III also considers objections to the proposal offered here.
