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40 Wayne L. Rev. 1191 (1993-1994)
Textualism, Contextualism, and the Scientific Method in Treaty Interpretation: How Do We Find the Shared Intent of the Parties

handle is hein.journals/waynlr40 and id is 1203 raw text is: TEXTUALISM, CONTEXTUALISM, AND THE SCIENTIFIC METHOD IN TREATY INTERPRETATION: HOW DO WE FIND THE SHARED INTENT OF THE PARTIES? MICHAEL S. STRAUBELt I. INTRODUCTION In two 1989 decisions of the United States Supreme Court, Justice Antonin Scalia and Justice William Brennan disagreed on when extratextual sources may be consulted to interpret a treaty.1 Justice Scalia's position was that extratextual sources, such as travauxprdparatoires and Senate ratification proceedings, may only be consulted when the text of the treaty is ambiguous.2 This position has come to be known as textualism. On the other hand, Justice Brennan's position was that extratextual sources may be consulted without the threshold finding that the text was ambig- uous.3 This position can be labeled as a modified contextualism. The conflict between these two positions remains unsettled and is illustrative of the history of the Supreme Court's approach to treaty interpretation. Further, the conflict presents important, al- though subtle, implications for the future status of treaties as a source of law. t B.S., 1979, Western Michigan University; J.D., 1982, Marquette Uni- versity Law School; LL.M. (Air & Space Law), 1989, McGill University. I would like to thank Professor James Nafzinger and my colleagues at the Valparaiso University School of Law for their helpful comments on early drafts of this article. But, most of all, I would like to thank my research assistant Allen Platt for his invaluable help. 1. In the first of the two cases, United States v. Stuart, 489 U.S. 353 (1989), Justice Brennan wrote for the majority and Justice Scalia wrote a concurring opinion. In the second case, Chan v. Korean Air Lines Ltd., 490 U.S. 122 (1989), their roles were reversed, as Justice Scalia wrote the majority opinion and Justice Brennan authored a concurring opinion. Justice Brennan was joined in his concurring opinion by Justices Marshall, Blackmun, and Stevens. Justice Scalia was alone in his concurring opinion. 2. Stuart, 489 U.S. at 373 (citations omitted); Chan, 490 U.S. at 134 (citation omitted). 3. Stuart, 489 U.S. at 365-66 (citations omitted); Chan, 490 U.S. at 136 (citation omitted). 1191

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