Article 2, Section 2, Clause 2 — Interpreting Treaties

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Article II, Section 2, Clause 2:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

All three branches of government play a part in treaty interpretation. When analyzing a treaty for purposes of applying it as domestic law of the United States, U.S. courts have final authority to interpret the treaty’s meaning.[1](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/interpreting-treaties#fn1art2 " See Sanchez-Llamas v. Oregon, 548 U.S. 331, 353–54 (2006) ( “If treaties are to be given effect as federal law under our legal system, determining their meaning as a matter of federal law ‘is emphatically the province and duty of the judicial department.’” ) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). ") The Supreme Court has stated that its goal in interpreting a treaty is to discern the intent of the nations that are parties to the treaty.[2](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/interpreting-treaties#fn2art2 " See, e.g., BG Grp., PLC v. Republic of Argentina, 572 U.S. 25, 37 (2014); Lozano v. Montoya Alvarez, 572 U.S. 1, 11 (2014); Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 183 (1982); Wright v. Henkel, 190 U.S. 40, 57 (1903). ") The interpretation process begins by examining “the text of the treaty and the context in which the written words are used.” [3](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/interpreting-treaties#fn3art2 " See, e.g., Monasky v. Taglieri, No. 18-935, slip. op. 1, 7 (U.S. Feb. 25, 2020) (quoting Air France v. Saks, 470 U.S. 392, 397 (1985)); Water Splash, Inc. v. Menon, No. 16-254, 581 U.S. 271, 272 (2017) (quoting Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 (1988)); Société Nationale Industrielle Aérospatiale v. U.S. Dist. Ct. for S. Dist. of Iowa, 482 U.S. 522, 534 (1987). ") When a treaty provides that it is to be concluded in multiple languages, the Supreme Court has analyzed foreign language versions to help understand the treaty’s terms.[4](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/interpreting-treaties#fn4art2 " See, e.g., Water Splash, No. 18-935, slip. op. at 7–8; Schlunk, 486 U.S. at 699. In one case, the Supreme Court changed its conclusion about the self-executing effect of a provision in an 1819 treaty with Spain after analyzing an authenticated Spanish-language version of the text. See supra , at n.19. ") The Court also considers the broader “object and purpose” of a treaty.[5](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/interpreting-treaties#fn5art2 " See, e.g., Abbott v. Abbott, 560 U.S. 1, 20 (2010); Sanchez-Llamas, 548 U.S. at 347; Société Nationale Industrielle Aérospatiale, 482 U.S. at 530; E. Airlines, Inc. v. Floyd, 499 U.S. 530, 552 (1991). ") In some cases, the Supreme Court examines extratextual materials, such as drafting history,[6](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/interpreting-treaties#fn6art2 " See, e.g., Monasky, No. 18-935, slip. op. at 8–9; Water Splash, No. 18-935, slip. op. at 7–8; Medellín v. Texas, 552 U.S. 491, 507 (2008); Air France, 470 U.S. at 400; Schlunk, 486 U.S. at 700. ") the views of other state parties,[7](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/interpreting-treaties#fn7art2 " See, e.g., Water Splash, No. 18-935, slip. op. at 7–9; Abbott, 560 U.S. at 16; Lozano, 572 U.S. at 12; Air France, 470 U.S. at 404. ") and the post-ratification practices of other nations.[8](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/interpreting-treaties#fn8art2 " See, e.g., Medellín, 552 U.S. at 507; Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 259 (1984). ") But the Court has cautioned that consulting sources outside the text may not be appropriate when the treaty is unambiguous.[9](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/interpreting-treaties#fn9art2 " See Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 134 (1989) ( “We must thus be governed by the text—solemnly adopted by the governments of many separate nations—whatever conclusions might be drawn from the intricate drafting history that petitioners and the United States have brought to our attention. The latter may of course be consulted to elucidate a text that is ambiguous . . . . But where the text is clear, as it is here, we have no power to insert an amendment.” ). ")

In the context of treaties made with Indian Tribes, the Court has held that such treaties impose judicially enforceable duties on the federal government only when the treaties contain “specific rights-creating or duty-imposing” language.[10](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/interpreting-treaties#fn10art2 " Arizona v. Navajo Nation, No. 21-1484, slip op. at 7 (U.S. June 22, 2023) (citing United States v. Navajo Nation, 537 U.S. 488, 506 (2003)). ") In Arizona v. Navajo Nation the Court held that an 1868 treaty establishing a reservation and reserving water rights for the Navajo Nation did not impose judicially enforceable affirmative duties on the federal government to assess or secure those water rights.[11](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/interpreting-treaties#fn11art2 " Id. at 2, 13. ")

The Executive Branch also plays a role in interpreting treaties, especially outside the context of domestic litigation and when operating in the realm of international affairs. The Executive Branch generally is responsible for carrying out treaties’ requirements and determining whether other countries fulfill their obligations to the United States.[12](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/interpreting-treaties#fn12art2 " See Cong. Rsch. Serv., Treaties and Other International Agreements: The Role of the United States Senate, S. Rep. No. 106-71, at 12–13 (2001) [hereinafter Treaties and Other International Agreements] ( “The executive branch has the primary responsibility for carrying out treaties and ascertaining that other parties fulfill their obligations after treaties and other international agreements enter into force . . . . The executive branch interprets the requirements of an agreement as it carries out its provisions.” ); Constitutionality of Legislative Provision Regarding ABM Treaty, 20 Op. O.L.C. 246, 248–49 (1996) (discussing the Executive Branch’s view on the President’s power over treaty interpretation and execution); Restatement (Fourth) of Foreign Relations Law §306 cmt. g (2018) ( “Execution of a treaty requires interpretation, and the President often determines what a treaty means in the first instance.” ). ") In performing this role, the Executive Branch often must interpret treaties’ provisions and mandates.[13](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/interpreting-treaties#fn13art2 " See supra note 12. ") In addition, some questions of treaty interpretation may involve presidential discretion or otherwise may present “political questions” that are more appropriately resolved in the political branches than in the courts.[14](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/interpreting-treaties#fn14art2 " In Charlton v. Kelly, for example, the Supreme Court declined to decide whether Italy violated its extradition treaty with the United States, reasoning that, even if a violation occurred, the President “elected to waive any right” to respond to the breach by voiding the treaty. See 229 U.S. 447, 475 (1913). For discussion of Charlton and the political question doctrine, see . ")

Within the Executive Branch, the Department of Justice participates in treaty interpretation as part of its statutory responsibilities to provide legal opinions within the Executive Branch[15](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/interpreting-treaties#fn15art2 " See 28 U.S.C. § 512 ( “The head of an executive department may require the opinion of the Attorney General on questions of law arising in the administration of his department.” ). For background on the Department of Justice’s advice-giving function, see , at n.43. ") and represent the United States in litigation.[16](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/interpreting-treaties#fn16art2 " See 28 U.S.C. § 516 ( “Except as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General.” ). ") The Department of State, which oversees treaty negotiations,[17](