The Death of Good Faith in Treaty Jurisprudence and a Call for Resurrection

Abstract

This article addresses the absence of the venerable doctrine of good faith interpretation, as well as its companion "liberal interpretation canon," from modern Supreme Court treaty jurisprudence. Although scholarly accounts suggest that the spirit is still alive, the article demonstrates that the doctrine was silently interred by the Supreme Court early in the last century. From all appearances, the disappearance of good faith from treaty jurisprudence was not by design. Nonetheless, the article demonstrates that even such an unintended drift can have serious negative consequences.

In the context of treaty jurisprudence, the consequence of the departure of good faith interpretation has been broad confusion in the lower federal courts over the very nature of treaties and the judicial role in their application as a matter of federal law. After charting the demise of the doctrine, the article examines the significant benefits from an express revival of good faith for the practical application of treaty law by the federal courts. Included among these are a restoration of clarity to the nature of treaties, a revival of the fundamental distinction with purely domestic statutes, and a return of the powerful admonishment to the courts of the significance of their task in treaty interpretation.

Keywords: treaties, constitutional design, legal obligation, jurisprudence, good faith