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ABSTRACT.
With the nation's treaty obligations proliferating and foreign affairs cases taking up a growing share of the Supreme Court's docket, it is surprising how undertheorized the field of treaty interpretation remains. To fill this void, some have suggested that textualism, which has had a major impact on statutory interpretation over the past two decades, should be applied to treaty interpretation. This Note rebuts that notion and suggests instead that courts draw from modern contract theory in developing canons of treaty interpretation.
INTRODUCTION
The Supreme Court has long stated that treaties adopted under Article II of the Constitution are not acts of "legislation" but rather "contracts" between sovereign nations.1 This contract analogy was most recently invoked by both the majority and the dissent in Olympic Airways v. Husain.2 Increasingly, however, the Court's treaty jurisprudence has borne the mark of "new textualism."3 Starting with his concurring opinion in United States v. Stuart,4 Justice Scalia has vigorously argued that separation of powers and rule of law concerns dictate that the Court restrict its inquiry in treaty interpretation cases to the four corners of the agreement. Although the Court as a whole has not accepted all aspects of Scalia's argument - such as his aversion to the use of materials from Senate ratification debates5 - textualism has become influential in treaty interpretation.
The coexistence of these two themes in treaty jurisprudence - textualist methodology and the notion that treaties are contracts - is problematic. Contracts are valid only to the extent that there is mutual assent by the contracting parties to a shared proposition.6 The text of the contract document is important in determining the scope of the agreement, but it serves only as evidence of what the agreement is. In the legislative context, the text of a statute is the agreement. As a result of this divergence, the interpreter's tasks in the construction of contracts and statutes are fundamentally different. The interpreter in a contractual dispute is interested primarily in how the parties themselves would interpret the terms of the contract. An interpreter of statutes following a textualist methodology focuses on the meanings that neutral third parties ascribe to particular terms.
This Note will argue that between these two contending principles of treaty interpretation, the contract...