Incorporative Statutes and the Borrowed Treaty Rule
63 Pages Posted: 4 Apr 2009 Last revised: 20 Mar 2010
Date Written: April 4, 2009
This Article examines how courts should interpret statutes that, by their terms, incorporate treaty provisions into the domestic law of the United States. The Article looks to a number of sources - including the structure of these "incorporative" statutes, common law canons of construction, separation of powers principles, and the case law of the United States Supreme Court - to develop 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 generally be read to conform to the 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 of interpretation, which provides that courts should, whenever possible, construe domestic statutes so as not to violate international law. A number of legal scholars have argued that U.S. courts should, per the Charming Betsy canon, construe all ambiguous statutes (not just statutes that are incorporative) to conform to international law. Such an approach is misguided, the Article suggests, because none of the rationales underlying the borrowed treaty rule support using that same approach to interpret statutes that are not incorporative. It is necessary, therefore, to distinguish between the borrowed treaty rule and the Charming Betsy canon. The former rule should be used to ensure that incorporative statutes are read to conform to international law. The latter canon, however, should be used merely to ensure that ambiguous statutes that are not incorporative do not conflict with it.
Keywords: Charming Betsy, borrowed statute rule, foreign relations, statutory interpretation, incorporation, implementing legislation, international law
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