Water Splash v. Menon: The Respondent’s Brief
Posted on March 1, 2017
The respondent has filed her brief in Water Splash v. Menon, the case on Article 10(a) of the Hague Service Convention. I am not going to comment at length on the details of the brief. May I gently suggest that if you’re talking about Plato’s theory of forms or John Finnis on natural law in a brief on treaty interpretation, something has gone wrong somewhere.
The basic point of the brief is that the text of Article 10(a) is unambiguous, and that its plain meaning favors the respondent. This is highly implausible. How can it be that all the parties to a treaty, including the US government, think it means one thing, and that in fact it unambiguously means the opposite? So I think the argument fails from the get-go: the Convention is at least ambiguous. The majority rule is at least a possible reading. With that point established, there is not much else to say about the brief or its explanations about why, when a treaty’s text is unambiguous, resort to various interpretative methods is improper.