                    Relevance of Senate Ratification History
                           to Treaty Interpretation

T h e m o st re le v a n t ex trin sic evidence o f a treaty ’s m eaning a re exchanges betw een the parties
    n e g o tia tin g it, i.e., th e President a n d the foreign pow er. T he p ortions o f the ratification record
    e n title d to th e g re a te st weight a re rep re sen tatio n s o f the E xecutive, w h o is in essen ce the
    d ra ftsm a n o f th e tre a ty . The S e n a te ’s advice an d co n sen t function w as designed by the
    F ra m e rs as a ch e c k on the P re sid e n t’s treaty -m ak in g p o w er, and the S e n ate’s delib eratio n s
    can n o t b e ig n o red altogether. N o n e th e le ss, in all but the m o st unusual cases, the ratification
    re c o rd is n o t the determ inative s o u rc e o f ev id en ce as to th e tre a ty ’s m eaning under dom estic
    law .


                                                                                                    April 9, 1987

                    M   em orandum           O   p in io n f o r t h e   L e g a l A d v is e r ,
                                         D   epartm ent o f         Sta te


                                   I. Introduction and Summary

   This memorandum responds to your request for the views of this Office
concerning the relevance of the Senate’s deliberations on ratification of a treaty
to subsequent interpretations of ambiguous treaty language by the Executive
Branch. We use the term “deliberations” or “ratification record” to encompass
sources such as hearings, committee reports, and floor debates, which are
generally analogous to the “legislative history” of domestic statutes. Our focus
is on the relevance of those sources to interpretation of a treaty as domestic law,
i.e., their relevance to the President’s constitutional responsibility to “take Care
that the Laws be faithfully executed.” U.S. Const, art. II, § 3.1 We understand
that you are reviewing separately the relevance that would be ascribed under
international law to the Senate’s ratification record.
   The question you raise does not lend itself to any clear or easy answer. As
discussed below, the dual nature of treaties as international agreements and as
domestic law and the concomitant division of the treaty-making power be­
tween the President and the Senate create an inevitable tension. Primarily,
treaties are international obligations, negotiated by the President in his capacity
as the “sole organ of the federal government in the field of international
relations,” United States v. Curtiss-W right Export Corp., 299 U.S. 304, 320
  1 It is indisputable that treaties are am ong the “supreme Law[s] of the Land,” U.S. Const, art. VI, cl. 2, and
that the President’s constitutional duty under Article II extends to treaties as well as to statutes and the
Constitution itself. See I Op. Att’y Gen. 566, 570 (1822); In re Neagley 135 U.S. 1, 64 (1890).

                                                         28
(1936). The most relevant evidence of the meaning of a treaty lies in the mutual
exchange of views between the negotiating parties — an exchange in which the
Senate does not formally participate unless it explicitly conditions its consent
to a treaty and that condition is communicated to and accepted by the other
party. Because the advice and consent function of the Senate, however, was
designed by the Framers as a constitutional check on the President’s otherwise
broad authority to make treaties that have the force of law, we believe that the
deliberative record that is created when the Senate advises and consents to a
treaty cannot be ignored in the'interpretative process. Nonetheless, in all but
the most unusual case, the ratification record would not be the determinative —
or even the primary — source of evidence as to the treaty’s meaning under
domestic law.
   In determining the weight to be assigned to that record, it should be observed
that, conceptually, the constitutional division of treaty-making responsibility is
essentially the reverse of the division of law-making authority. Congress
initially agrees upon and enacts the language of domestic legislation, while the
President reserves the right to determine whether that legislation will go into
effect (subject, of course, to the override of any veto). Treaties, however, are
proposed and negotiated by the President, subject to the approval or disap­
proval of the Senate. Given this conceptual framework, it is clear that the
portions of the treaty ratification record that should be accorded more weight as
to the treaty’s meaning are the representations of the executive — the drafts­
man, in effect, of the treaty. Statements by individual Senators, or even groups
of Senators, are certainly entitled to no more consideration — and perhaps less
— than the limited weight such statements are given in the interpretation of
domestic legislation when they are not confirmed by the legislation’s sponsor
in colloquy or otherwise.

               n . Constitutional Division of Treaty Authority

   The powers of the national government were deliberately divided by the
Framers among the three coordinate branches, because they considered the
concentration of governmental power to be the greatest threat to individual
liberty. “Basic to the constitutional structure established by the Framers was
their recognition that ‘[t]he accumulation of all powers, legislative, executive,
and judiciary, in the same hands . .. may justly be pronounced the very
definition of tyranny.’” Northern Pipeline Co. v. Marathon Pipe Line Co., 458
U.S. 50, 57 (1982) (quoting The Federalist No. 47, at 300 (J. Madison) (H.
Lodge ed. 1888)). Accordingly, “[t]he Constitution sought to divide the del­
egated powers of the new Federal Government into three defined categories,
Legislative, Executive, and Judicial, to assure, as nearly as possible, that each
branch of government would confine itself to its assigned responsibility.” INS
v. Chadha, 462 U.S. 919, 951 (1983); see also Buckley v. Valeo, 424 U.S. 1,
122 (1976). The Supreme Court has long acknowledged that the partitions
separating each branch of government from the others must be maintained
                                       29
inviolable if liberty is to be preserved. “The hydraulic pressure inherent within
each of the separate Branches to exceed the outer limits of its power, even to
accomplish desirable objectives, must be resisted.” INS v. Chadha, 462 U.S. at 951.
   Under this separation of powers, the President has a dual role with respect to
treaties. First, the President is responsible for “making” treaties, i.e., entering
into negotiations with foreign governments and reaching agreement on specific
provisions. U.S. Const, art. II, § 2, cl. 2. Second, as part of his responsibility to
“take Care that the Laws be faithfully executed,”2 and as the “sole organ of the
federal government in the field of international relations,”3 the President is
responsible for enforcing and executing international agreements, a responsi­
bility that necessarily “involve[s] also the obligation and authority to interpret
what the treaty requires.” L. Henkin, Foreign Affairs and the Constitution 167
(1972) (Henkin); see also Collins v. Weinberger, 707 F.2d 1518, 1522 (D.C.
Cir. 1983); American Law Institute, Restatement o f the Law, Foreign Relations
Law o f the United States (Second), §§ 149,150(1965 ) (Restatement (Second));
accord American Law Institute, Restatement o f the Law, Foreign Relations
Law o f the United States (Revised) (Tentative Final Draft, July 15, 1985) § 326
(Restatement (Revised )).4
   The President’s authority to make treaties is shared with the Senate, which
must consent by a two-thirds vote.5 This “JOINT AGENCY of the Chief
Magistrate of the Union, and of two-thirds of the members of [the Senate]”6
reflects the Framers’ recognition that the negotiation and acceptance of treaties
incorporates both legislative and executive responsibilities:
           [T]he particular nature of the power of making treaties indicates
           a peculiar propriety in that union. Though several writers on the
           subject of government place that power in the class of executive
           authorities, yet this is evidently an arbitrary disposition; for if
           we attend carefully to its operation it will be found to partake
           more of the legislative than of the executive character, though it
           does not seem strictly to fall within the definition of either of
           them. The essence of the legislative authority is to enact laws,
           or, in other words, to prescribe rules for the regulation of the
           society; while the execution of the laws and the employment of
           the common strength, either for this purpose or for the common
           defense, seem to comprise all the functions of the executive

  2 U.S. Const, art. II, § 3.
  3 United States v. Curtiss-Wright Export Corp , 299 U.S. at 320; see also Haig v. Agee, 453 U.S. 280, 29 1-
292 (1981); Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 190 (1948).
  4 The P resident’s interpretation o f a treaty is, o f course, subject to review by the courts in a case or
controversy that m eets A rticle III requirements. See U.S. C onst, art. Ill, § 2 (“The judicial Power shall extend
to all C a s e s ,. . . arising under this C onstitution, the Laws o f the United States, and Treaties made, or which
shall be m ade, under th eir Authority"); see also Kolovrat v. Oregon , 366 U. S 187, 194 (1961); Factor v.
Laubenheimer , 290 U.S. 276, 294 (1933); Jones v. Meehan, 175 U.S. 1, 32 (1899).
  5 “ [The President] shall have Power, by and w ith the A dvice and C onsent o f the Senate, to make Treaties,
provided tw o thirds o f the Senators present concur. . .        U.S. Const, art. II, § 2, cl. 2.
  6 The Federalist No. 66, at 406 (A. H am ilton) (C. R ossiter ed. 1961).

                                                         30
          magistrate. The power of making treaties is, plainly, neither the
          one nor the other . . . . The qualities elsewhere detailed as indis­
          pensable in the management of foreign negotiations point out
          the executive as the most fit agent in those transactions; while
          the vast importance of the trust and the operation of treaties as
          laws plead strongly for the participation of the whole or a
          portion of the legislative body in the office of making them.
The Federalist No. 75, at 450-51 (A. Hamilton) (C. Rossiter ed. 1961); see also
The Federalist No. 64, at 390-93 (J. Jay); The Federalist No. 66, at 402-03 (A.
Hamilton); see generally Congressional Research Service, Treaties and Other
International Agreements: The Role o f the United States Senate, 98th Cong., 2d
Sess. 25-28 (Comm. Print prepared for the Senate Comm, on Foreign Rela­
tions, 1984) (CRS Study). Rather than vest either Congress or the President
with the sole power to make treaties, the Framers sought to combine the
judgment of both, providing that the President shall make the treaties, but
subject to the “advice and consent” of the Senate. Thus, the Framers included
the Senate in the treaty-making process because the result of that process, just
as the result of the legislative process, is essentially a law that has “the effect of
altering the legal rights, duties and relations of persons . . . outside the Legisla­
tive Branch.” IN S v. Chadha, 462 U.S. at 952. As discussed above, however,
conceptually the constitutional division of treaty-making responsibility be­
tween the Senate and the President is essentially the reverse of the division of
law-making authority, with the President being the draftsman of the treaty and
the Senate holding the authority to grant or deny approval.

                                          III. Senate Practice

   In practice, the Senate’s formal participation in the treaty-making process
begins after negotiation of the treaty.7 At that time, the President transmits the
treaty to the Senate, with a detailed description and analysis of the treaty, and
any protocols, annexes, or other documents that the President considers to be
integral parts of the proposed treaty. See CRS Study at 105. Under the Senate’s
rules, treaties are referred to the Senate Foreign Relations Committee,8 which

  7 President W ashington attem pted to consult w ith the Senate, with limited success, on the negotiation of
several treaties w ith the Indians. By 1816 the practice had becom e firmly established (hat the Senate would
grant its “advice and consent” to treaties already negotiated by the President or his representatives. See
Henkin at 131-132; CRS Study at 34-36.
  8 A lthough jurisd ictio n to review treaties is vested solely in the Foreign R elations Com m ittee, Rule 25,
Standing Rules o f the Senate, S. Doc. No. 9 9 -1 3 , 99th Cong., 1st Sess. (1985), upon occasion other
com m ittees have asserted an interest in the subject m atter o f the treaty, even though they have no jurisdiction
to m ake form al recom m endations. For exam ple, the Senate Armed Services Committee has held extensive
hearings on the “m ilitary im plications” o f various treaties, including the ABM and SA LT II treaties. See
Hearings on the Military Implications o f the Treaty on the Limitations o f Antt-Ballistic Missile Systems and
the Interim Agreement on Limitation o f Strategic Offensive Arms before the Senate Comm on Armed
Services, 92d C ong., 2d Sess. (1972); Hearings on the Military Implications o f the Treaty on the Limitation o f
Strategic Offensive Arms and Protocol Thereto before the Senate Comm, on Armed Services, 96th Cong , 1st
Sess. (1979); see generally CRS Study at 106-07.

                                                       31
may hold hearings to develop a record explaining the purposes, provisions, and
significance of the agreement. Typically, the principal witnesses at such hear­
ings are representatives of the Executive Branch. The Foreign Relations Com­
mittee then issues a report to the full Senate, with its recommendation on
approval of the treaty.
   The Senate’s practice has been to approve, to disapprove, or to approve with
conditions, treaties negotiated by the Executive Branch. Express conditions
imposed by the Senate may include “understandings,” which interpret or
clarify the obligations undertaken by the parties to the treaty but do not change
those obligations,9 or “reservations” and “amendments,” which condition the
Senate’s consent on amendment or limitation of the substantive obligations of
the parties under the agreement.10 On occasion, the Senate has accompanied its
consent by “declarations,” which state the Senate’s position, opinion, or inten­
tion on issues raised by the treaty, although not on the provisions of the specific
treaty itself.11 See CRS Study at 110.

                      IV. Melevamce off tine Semsitte RatifficattijM Eecord

A. Express Conditions

   When the Senate includes express conditions as part of its resolution of
consent to ratification, the President may, if he objects, either refuse to ratify
the treaty or resubmit it to the Senate with the hope that it will be approved
unconditionally the second time. See 14 M. Whiteman, Digest o f International
Law, 138 (1970). If the President proceeds with ratification, however, such
understandings or other conditions expressly imposed by the Senate are gener­
ally included by the President with the treaty documents deposited for ratifica­
tion or communicated to the other parties at the same time the treaty is
deposited for ratification.12 See id. at 188-93. Because such conditions are

   9 See generally C RS Study at 11, 109-110; S. Rep. No. 4 7 , 96th C ong., 1st Sess. 13-25 (1979) (Panam a
C anal T reaty); S. Rep. No. 29, 97th Cong., 1st Sess. 45 (1981) (SALT II Treaty).
    10See generally C RS Study at 109-110; H enkin at 134 & n.23 (1972); S. Rep. No. 4 7 , 96th Cong., 1st Sess.
2 4 -2 5 (P anam a C anal Treaty); S. Rep. N o. 29, 97th Cong., 1st Sess. 4 4 -4 5 (SALT II Treaty).
   11 Such “declaratio n s," w hich do not p u rport to interpret the treaty but only to express a “sense o f the
S enate” w ith respect to related issues, m ay o r may not be included by the President in the instrum ent of
ra tificatio n subm itted to the other parties. See , e.g., CRS S tudy at 110 & n.10 (discussing 1976 Treaty of
F rien d sh ip and C ooperation with Spain).
   12 Treaties usually require international action such as the exchange o r deposit o f instrum ents o f ratification
in o rd er to estab lish international obligations. See 14 W hitem an, supra, a t 62; Vienna Convention on the Law
o f T reaties, art. 2. In general, conditions th at a lter the o bligations o f a party under the treaty must be presented
w ith the treaty docum ents. See 14 M. W hitem an, supra, at 188-193. “ U nderstandings” or “declarations,”
w hich o n ly clarify the m eaning of a treaty provision or describe a policy, rather than alter the meaning o f the
treaty , are g enerally com m unicated to th e other parties, but are not necessarily included with the official
treaty docum ents. Id. In 1976, the President com m unicated five Senate “declarations” relating to the Treaty
o f Friendship and C ooperation with Spain o f 1976, 27 U .S.T. 3005, T.I.A .S. No. 8360, separately from the
ratificatio n , ex p lain in g that he viewed the declarations as appropriate “statem ents o f hope and expressions o f
opin io n ” and as “statem ents o f dom estic U nited States processes.” [1976] Digest o f U.S. Practice in
International Law 214—17 (described in Restatement (Revised) § 314, n .l). The Senate Foreign Relations
                                                          C ontinued

                                                           32
considered to be part of the United States’s position in ratifying the treaty, they
are generally binding on the President, both internationally and domestically,
in his subsequent interpretation of the treaty.13 See generally United States v.
Schooner Peggy, 5 U.S. (1 Cranch) 103,107 (1801); H a v e r\. Yaker, 76 U.S. (9
Wall.) 32,35 (1869); Hidalgo County Water Control and Improvement District
No. 7 v. Hedrick, 226 F.2d 1, 8 (5th Cir. 1955); Restatement (Revised) § 323.

B. Statements in the Ratification Record

   The more difficult question is what relevance, if any, the President must give
to less formal, contemporaneous indications of the Senate’s understanding of
the treaty, i.e., statements in committee reports, hearings, and debates which
may reflect an understanding of certain treaty provisions by some Senators, but
which were not embodied in any formal understanding or condition approved
by the entire Senate.14 With the not insubstantial exception of representations
made or confirmed by the Executive Branch (discussed below), we believe
such statements have only limited probative value and therefore are entitled to
little weight in subsequent interpretations of the treaty.15

   12 ( . . . continued)
   Com m ittee has criticized this practice in the past, and has recom m ended a three-tiered categorization o f
conditions: (1) those that do not d irectly involve form al notice to or agreem ent by the other parties; (2) those
that would be form ally com m unicated to the other parties as official statem ents o f the position o f the U nited
States in ratifying the treaty, but that do not require their agreem ent; and (3) those that w ould require the
explicit agreem ent o f the other parties for the treaty to come into force. S. Exec. Rep. 96-14, 96th Cong., 1st
Sess. 18, 28 (1979).
   i3This presum es, o f course, that the condition is within the S en ate's authority to impose as part o f its treaty-
making authority. T he Senate’s authority to im pose conditions is not unlim ited merely because it m ay
w ithhold its consent. The general principle that Congress cannot attach unconstitutional conditions to a
legislative benefit o r program m erely because it has authority to withhold the benefit o r pow er entirely
applies equally to the S enate’s advice and consent authority. See generally Wong Wing v. United States, 163
U.S. 228, 237 (1896); Myers v. United States, 272 U.S. 52, 126(1926). The S enate may not, for exam ple, use
its advice and consent pow er to im pose conditions that affect separate, w holly dom estic, statutory schemes.
See Power Authority v. Federal Power Comm'n, 247 F.2d 538 (D.C. C ir.), vacated as moot sub nom.
American Pub. Power Association v. Power Authority, 355 U.S. 64 (1957). As w e have advised before, we do
not believe the Senate may impose conditions that interfere with the President’s responsibility to execute the
laws. See “C onstitutionality o f Proposed C onditions to Senate Consent to the Interim Convention on
C onservation o f N orth Pacific Fur Seals,” 10 Op. O.L.C. 12 (1986).
   14 It is clear that post hoc expressions o f legislative intent, after the treaty has been duly ratified, cannot
change the legal effect o f an international agreem ent to which the Senate Has given its approval. See Fourteen
Diamond Rings v. United States, 183 U.S. 176, 179-180 (1901) (resolution adopted by C ongress after the
Senate had consented to ratification o f a treaty is “ absolutely w ithout legal significance” ). C ongress may, o f
course, in effect validate an Executive Branch interpretation o f a treaty by passing legislation consistent w ith
that view. See generally Foster <£ Elam v. Neilson, 27 U.S. (2 Pet.) 253, 309 (1830).
   13 We note that w hile a few courts have alluded to the record the Senate creates in advising and consenting
to the ratification o f treaties, none has advanced a com prehensive theory o f w hat weight should be given to
particular portions o f the ratification record and none, to our know ledge, has specifically relied on represen­
tations in the Senate record to support a particular construction o f a treaty. See Hidalgo County Water Control
& Improvement District v. Hedrick t 226 F.2d at 8 (refusing to consider evidence from S enate hearings,
com m ittee d iscussions, and debates because the meaning o f the treaty was otherw ise clear); Coplin v. United
States , 6 Ct. Cl. 115, 144 (1984), rev’d on other grounds, 761 F.2d 688 (Fed. Cir. 1985), a f f d sub nom.
O'Connor v. United States, 479 U.S. 27 (1986) (review ing Senate “ legislative history” o f the Panam a C anal
Treaty but finding that it w as entitled to little weight).

                                                          33
   First, it must be observed that a treaty is fundamentally a “contract between
or among sovereign nations,” 16 and the primary responsibility — whether of
the executive or the courts — is “to give the specific words of the treaty a
meaning consistent with the shared expectations of the contracting parties.” A ir
France v. Saks, 470 U.S. 392, 399 (1985). See generally Foster & Elam v.
Neilson, 27 U.S. (2 Pet.) 253, 314 (1830) (“A treaty is in its nature a contract
between two nations, not a legislative act.”). International agreements, like
“other contracts . . . are to be read in the light of the conditions and circum­
stances existing at the time they were entered into, with a view to effecting the
objects and purposes of the States thereby contracting.” Rocca v. Thompson,
223 U.S. 317, 331-332 (1912). Necessarily, the best evidence of the intent of
the parties is the language and structure of the treaty and, secondarily, direct
evidence of the understanding reached by the parties, as reflected in the
negotiating record and subsequent administrative construction,17 rather than
unilateral, post-negotiation statements made during the Senate ratification
debates.
   Moreover, the constitutional role of the Senate is limited to approval or
disapproval of the treaty, much as the President’s constitutional role in enact­
ing domestic legislation is limited to his veto power. The Senate may, if it
chooses, amend or interpret the treaty by attaching explicit conditions to its
consent, which are then transmitted to, and either accepted or rejected by, the
other parties. Absent such conditions, the Senate does not participate in setting
the terms of the agreement between the parties, and therefore statements made
by Senators, whether individually in hearings and debates or collectively in
committee reports, should be accorded little weight unless confirmed by the
Executive. We note that even in the case of domestic legislation, where Con­
gress — rather than the President and other foreign governments — directly
shapes the operative language, “[r]eliance on legislative history in divining the
intent of Congress is . . . a step to be taken cautiously.” Piper v. Chris-Craft
Industries, Inc., 430 U.S. 1, 26 (1977).18
  16 TWA, Inc. v. Franklin Mint Corp., 466 U.S. 243, 262 (1984) (Stevens, J., dissenting); Washington v.
Fishing Vessel A ss’n, 443 U .S. 658, 675 (1979).
  17See generally O ’Connor x. United States, 479 U.S. 27, 3 1 -3 3 (1986); A ir France v Saks, 470 U.S. at 396;
Maximov v. United States, 373 U.S. 4 9 , 54 (1963); Kolovrat v Oregon , 366 U.S. at 194; Factor v.
Laubenheimer, 290 U.S. at 294; Jones v. Meehan, 175 U .S. at 4, 23.
   18 F o r exam ple, “ordinarily even the contem poraneous rem arks of a single legislator . . . are not controlling
in analyzing legislative history.” Consumer Products Safety Comm'n v. GTE Sylvama, 447 U.S. 102, 118
(1980). As the C ourt stated in Weinberger v. Rossi, 456 U .S. 25 (1982):
         [0 ]n e isolated rem ark by a single Senator, am biguous in meaning when exam ined in context, is
         insufficient to establish the kind o f affirm ative congressional expression to evidence an intent to
         abrogate provisions in 13 international agreem ents.
Id. a t 35. S im ilarly, statem ents made d u rin g legislative h earings provide oniy limited guidance as to the intent
or understanding o f the Senate as a w hole. See, e.g , McCaughn v. Hershey Chocolate Co., 283 U.S. 488,
4 9 3 -4 9 4 (1931); Austasia Intermodel Lines, Ltd. v. CFMC, 580 F.2d 642, 645 (D C. Cir. 1978). Committee
reports provide im portant evidence o f the legislative intent, but are at best “only aids” in interpreting
am biguous statutory language. See Abourezk v. Reagan, 785 F 2 d 1043 (D.C. Cir. 1986); General Motors
Corp. v. Ruckelshaus, 742 F.2d 1561 (D .C . Cir. 1984), cert, denied, 471 U.S 1074 (1985); NLRB v. Res-
Care, Inc., 705 F.2d 1461 (7th O r. 1983); Mills v. United States, 713 F.2d 1249 (7th Cir. 1983), cert, denied,
464 U .S. 1 0 6 9 (1984).

                                                          34
  Indeed, profound foreign policy implications would be raised if the United
States were to supplement or alter treaty obligations to foreign governments
based on statements made by members of the Senate during its consideration of
the treaty that were not communicated to those governments in the form of
express conditions. “[F]oreign governments dealing with us must rely upon the
official instruments of ratification as an expression of the full intent of the
government of the United States, precisely as we expect from foreign govern­
ments.” Coplin v. United States, 6 Ct. Cl. at 145. In New York Indians v. United
States, 170 U.S. 1, 22-23 (1898), for example, the Supreme Court refused to
give effect, vis-a-vis the Indians, to a proviso adopted by the Senate but not
included in the treaty documents subsequently presented to the Indians for their
acceptance:
          There is something . . . which shocks the conscience in the idea
          that a treaty can be put forth as embodying the terms of an
          arrangement with a foreign power or an Indian tribe, a material
          provision of which is unknown to one of the contracting parties,
          and is kept in the background to be used by the other only when
          the exigencies of a particular case may demand it. The proviso
          never appears to have been called to the attention of the tribes,
          who would naturally assume that the treaty, embodied in the Presi­
          dential proclamation contained all the terms of the arrangement.
We can well imagine that the United States would be deeply disturbed if the
Soviet Union resolved ambiguities in a treaty by reference to deliberations in a
Soviet legislative body charged with consenting to its ratification.19 If indi­
vidual Senators believe that portions of a treaty are ambiguous, they may
resolve that ambiguity in a manner consistent with the mutual process through
which treaties are negotiated: either by requesting the Executive to state more
clearly the meaning of the agreement it has reached with the foreign country, or
by making explicit the Senate’s understanding of the provision through a
formal reservation or understanding attached to its resolution of approval.
Thus, while statements made by individual senators or even in committee
reports may at times provide a gloss on other, more direct sources of evidence
of a treaty’s meaning, we believe they are entitled to little weight in and of
themselves.20
   On the other hand, statements made to the Senate by representatives of the
Executive Branch as to the meaning of a treaty should have considerably more
  19Consistent w ith this view, when questions arose concerning the Panam anian interpretation o f certain key
provisions o f the Panam a Treaties, the State D epartm ent took the position that the United States w ould rely
on the final instrum ents o f ratification as expressing the full intent o f the parties. See CRS Study at 128 &
n.62.
  20 The latest tentative draft o f the Restatement takes the position that “indication in the record that the
Senate ascribed a particular meaning to the treaty is relevant to the interpretation of the treaty by a U nited
States court in m uch the same way that the legislative history o f a statute is relevant to its interpretation.” See
Restatement (Revised) § 314, com m ent d (T entative Final D raft). As the discussion makes clear, we believe
the Restatement position exaggerates som ew hat the general evidentiary significance of the Senate ratification
record in interpreting am biguous provisions o f an international treaty.

                                                       35
weight in subsequent interpretations of ambiguous terms of the treaty. Such
statements do not present as substantial a threat to the reliance interests of
foreign governments, because the Executive Branch negotiated the treaty and
is therefore in a position to represent authoritatively the meaning of the agree­
ment that emerged from the negotiating process. Moreover, given that the
Senate’s constitutional role is limited to approving a treaty already negotiated
by the Executive Branch and that much of the extra-textual evidence of a
treaty’s meaning remains in the control of the Executive Branch, we believe the
Senate itself has a substantial reliance interest in statements made by the
Executive Branch officials seeking that approval.
   Accordingly, consistent with the President’s role as the nation’s exclusive
negotiator of treaties with foreign governments, we believe that statements
made to the Senate by the Executive Branch during the ratification debates are
relevant in much the same way that contemporaneous statements by congres­
sional draftsmen or sponsors of domestic legislation are relevant to any subse­
quent interpretation of the statute. See, e.g., FEA v. Algonquin SNG, Inc., 426
U.S. 548, 564 (1976) (statement by one of legislation’s sponsors “deserves to
be accorded substantial weight in interpreting the statute”); National Wood­
work M anufacturers A ss’n v. NLRB, 386 U.S. 612, 640 (1967); Schwegmann
Bros. v. Calvert Distillers Corp., 341 U.S. 384, 394-395 (1951). We note that
because of the primary role played by the Executive Branch in the negotiation
of treaties and the implementation of foreign policy, courts generally accord
substantial deference — albeit not conclusive effect — to interpretations
advanced by the Executive Branch. “While courts interpret treaties for them­
selves, the meaning given them by the departments of government particularly
charged with their negotiation and enforcement is given great weight.” Kolovrat
v. Oregon, 366 U.S. at 194; see also Sumitomo Shoji America, Inc. v. Avagliano,
457 U.S. 176, 185 (1982); Collins v. Weinberger, 707 F.2d 1518, 1522 (D.C.
Cir. 1983) (“Courts should defer to such executive actions [interpreting a
treaty] provided they are not inconsistent with or outside the scope of the
treaty.”); Restatement (Revised) § 326, comment b. Although the courts often
rely on interpretative statements made by the Executive Branch prepared well
after negotiation and ratification of the treaty,21 they find particularly persua­
sive a consistent pattern of Executive Branch interpretation, reflected in the
application of the treaty by the Executive and the course of conduct of the
parties in implementing the agreement. See, e.g., O ’Connor v. United States,
479 U.S. at 32-33. Much as contemporaneous administrative construction of
domestic statutes by agencies charged with their implementation is generally
accorded considerable deference by the courts, particularly when those agen­
cies have made explicit representations to Congress during consideration of the
  21 O n o ccasion, the State Department m akes specific suggestions to the court about the interpretation o f an
agreem ent. See, e.g., Caplin v. United Stales, 761 F.2d 688, 691 (Fed. C ir. 1985), a jfd s u b nom. O ’Connor v.
United States, 479 U .S 27 (1986). The courts in fact often invite the U nited States to file amicus briefs giving
the view s o f the Executive Branch in c ase s to w hich the U nited States is not a party. See, e.g., Sumitomo Shoji
America, Inc. v. Avagliano, 457 U.S. 176 (1982); Zschemig v. Miller, 389 U.S. 429 (1968); Kolovrat v.
Oregon , 366 U.S. 187 (1961).

                                                        36
legislation,22 statements made to the Senate by members of the Executive
Branch about the scope and meaning of a treaty would be relevant evidence of
the Executive Branch’s view, and therefore would be accorded deference by a
court in assessing the domestic effect of the treaty.
   The weight to be given to an interpretative statement made by an Executive
Branch official to the Senate during the ratification process will likely depend
upon such factors as the formality of the statement, the identity and position of
the Executive Branch official making the statement, the level of attention and
interest focused on the meaning of the relevant treaty provision, and the
consistency with which members of the Executive Branch adhered at the time
to the view of the treaty provision reflected in the statement.23 All of these
factors affect the degree to which the Senate could reasonably have relied upon
the statement and, in turn, the weight that courts will attach to it. At one
extreme, a single statement made by a middle-level Executive Branch official
in response to a question at a hearing would not be regarded as definitive.
Rather, in interpreting the domestic effect of a treaty, the courts would likely
accord such a statement in the ratification record a degree of significance
subordinate to more direct evidence of the mutual intent of the parties, such as
the language and context of the treaty, diplomatic exchanges between the
President and the other treaty parties, the negotiating record, and the practical
construction of the provision reflected in the parties’ course of dealings under
the treaty. Moreover, courts often give substantial weight to the Executive
Branch’s current interpretation of the treaty, in recognition of the President’s
unique role in shaping foreign policy and communicating with foreign govern­
ments,24 and, accordingly, would be unlikely to bind future chief executives on
the basis of an isolated remark of an Executive Branch official in a previous
administration. In general, therefore, less formal statements made by the Ex­
ecutive Branch before the Senate (such as the one described in the preceding
hypothetical) will be but one source of relevant evidence to be considered in
interpreting an ambiguous treaty provision.
   In contrast, in a case in which the statements by the Executive Branch
amount to a formal representation by the President concerning the meaning of a
particular treaty provision, the ratification record may be conclusive. If, for
example, the ratification record unequivocally shows that the President pre­
sented the treaty to the Senate based on specific, official representations
regarding the meaning of an ambiguous provision, that the Senate regarded that
  22 See, e.g.. United States v. Vogel Fertilizer Co., 455 U.S. 16, 30 (1982) (court necessarily attaches great
w eight to agency representations to Congress when the adm inistrators participated in drafting the statute and
directly m ade known their views to C ongress); Dawson Chemical Co. v. Rohm & Haas Co., 448 U.S. 176,
202-212 (1980) (statem ents by adm inistration w itnesses during hearings on patent infringem ent legislation
strongly reinforce the c o u rt’s conclusion that C ongress intended to im m unize respondent’s behavior from
patent m isuse charges). In general, courts give “great w eight” in construing dom estic statutes to contem pora­
neous constructions by the executive branch. See generally Udall v. Tollman, 380 U.S. 1,16 (1965); Red Lion
Broadcasting Co. v. FCC, 395 U.S. 367, 381 (1969).
  23 S im ilarly, the w eight o f statem ents by senators confirm ed by the executive w ill depend, inter alia, on the
form ality o f the confirm ation and the identity and position o f the person confirm ing the statem ent.
  24 See, e.g., Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. at 184 n. 10.

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understanding as important to its consent, and that the Senate relied on the
representations made by the Executive Branch in approving the treaty (and thus
in refraining from attaching a formal reservation setting forth the understand­
ing), we believe the President would, in effect, be estopped from taking a
contrary position in his subsequent interpretation of the treaty, just as he would
be bound by a formal reservation or understanding passed by the Senate to the
same effect. See generally United States v. Vogel Fertilizer Co., 455 U.S. at 31
(refusing to uphold current Treasury Department interpretation in light of
evidence that the Treasury Department proposed and presented the legislation
to Congress on a different understanding). Obviously, a President could not
negotiate a treaty with other nations on the basis of one understanding of its
import, submit the treaty to the Senate on a wholly different understanding, and
then, in implementing the treaty, rely solely on the understanding he had
reached with the other parties. Similarly, he could not reach a secret agreement
with the other party that substantially modifies the obligations and authorities
created by the text of the treaty submitted to the Senate, and then seek to use the
secret agreement as a basis for actions inconsistent with the text of the treaty.
Such results would essentially eviscerate the Senate’s constitutional advice and
consent role, because it would deprive the Senate of a fair opportunity to
determine whether, or with what conditions, the treaty should become the
“supreme Law of the Land.” Accordingly, in such extreme cases, we have little
doubt that, as a matter of domestic law, the courts would construe the treaty as
presented to and accepted by the Senate, even if as a matter of international law
the treaty might have a different meaning.25

                                                                        C harles       J.   C ooper
                                                                  Assistant Attorney General
                                                                   Office o f Legal Counsel




   25 A lthough courts g enerally seek to c o n stru e treaties consistent w ith their international im port, on occasion
courts have adopted constructions o f particular treaties that conflict with the President's view o f the
international obligations created by the treaty. See , e.g., Maiorano v. Baltimore & Ohio R.R., 213 U.S. 268
(1909) (interpreting an 1871 treaty w ith Italy giving aliens access to courts of justice). M oreover. Congress
can enact dom estic legislation that is inconsistent w ith existing treaty obligations, and thus has the effect of
tying the P resid e n t's hands dom estically, while leaving the international obligations intact. See generally
Menominee Tribe o f Indians v. United States , 391 U.S. 404, 4 1 2 -4 1 3 (1968); Moser v. United States , 341
U.S. 41, 45 (1951); Torres v INS, 6 0 2 F.2d 190, 195 (7th Cir. 1979). It would nnt be unprecedented,
therefore, fo r a court to construe a treaty more narrow ly — o r more broadly — as a m atter o f dom estic law
than the P resident construes the treaty as a m atter o f international law . As Professor Henkin has observed,
“ [i]t could happen . . . that Congress a n d the courts w ould in effect apply treaty provisions different from
those that bind the U nited States internationally — an o th er cost o f the separation o f pow ers.” H enkin at 167.

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