The President Versus the Senate in Treaty Interpretation: What's All the Fuss About?

Abstract

I would not be a law professor if I did not quibble with the title given this conference panel: "The President Versus the Senate in Treaty Interpretation." Is the field of treaty interpretation truly witnessing a titanic, adversarial struggle of the President versus the Senate? To me, that description seems about as accurate as characterizing what is going on in a good marriage as "Husband Versus Wife." We all know that a marriage contract mandates a partnership between husband and wife, with each spouse having his or her own role, but needing the other's concurrence to act for the family. In the same way, Article II of the Constitution mandates that the Senate and President act as partners in the treaty process, with each institution fulfilling a constitutional role that cannot take effect without the other's cooperation. Even when particular issues prove contentious, as recently occurred during the Anti-Ballistic Missile (ABM) Treaty controversy, the two branches ultimately have little choice but to reach some kind of political accommodation. As the final resolution of that dispute revealed, the two branches simply need one another too much to allow political stalemate and acrimony to persist indefinitely. A few highly publicized recent instances of interbranch dispute over treaty interpretation should not overshadow more than two hundred years of relative harmony regarding the interpretation of literally thousands of treaties.