Treaty Interpretation: A Comment

Abstract

The key question in the treaty interpretation debate is: what standards are correct for judging whether the President is bound to an interpretation of a treaty under domestic law because of the manner in which the treaty was presented to the Senate? Professor Koplow's analysis of the treaty interpretation issue is more accurate than that of most of the prior critics of the Reagan Administration's views on this subject. Like so many of the Administration's critics, however, Professor Koplow misstates my position and that of the Administration on some issues, particularly on the straw man called the Sofaer doctrine. The alleged Sofaer doctrine is no more than a polemical device, utilized in a political controversy, and has never had any basis in fact. I realize that disputes between the political branches will not always be fought by Roberts' Rules. I take responsibility, in fact, for any misunderstandings that might have existed on the part of certain Senators. But I cannot accept Professor Koplow's reliance on the Sofaer Doctrine, as he purports to present a scholar's account. He should have limited his criticisms to those areas in which we truly hold different positions, rather than exploiting a politically generated mischaracterization of my position.1 It is, however, apparent that Professor Koplow has conceded