¶13. Against this background, I conclude that Wis. Stat. § 710.02(1) permits GATS Members and their service suppliers to acquire, own, or hold more than
640 acres of land for most service-related, non-agricultural, non-forestry uses enumerated in the GATS. There are two separate reasons for this conclusion. First, the acreage limitation prohibits the nonresident alien ownership of more than
640 acres for agricultural or forestry use, but exempts from this restriction most service-related uses of land by nonresident aliens. Second, the GATS comes within the statute’s treaty exception. Thus, any possible conflict between the GATS requirements and the statutory restrictions would be subject to the treaty exception.

¶14. The purpose of the acreage restriction in Wis. Stat. § 710.02(2) is to prevent the large-scale acquisition of Wisconsin land by nonresident aliens for agricultural or forestry purposes. Consistent with this limited reach, Wis. Stat.
§ 710.02(2) enumerates the non-agricultural, non-forestry activities to which the acreage restriction does not apply. Specifically, it does not apply to “[r]ailroad or pipeline corporations,” or uses based on mining, manufacturing activities, mercantile activities, and exploration or production of potential fuel and energy sources. Wis. Stat. § 710.02(2)(c)-(g). Wisconsin’s intent to open its land market for these activities but not agricultural and forestry purposes is spelled out in the legislative declaration of the 1983 Act (legislative intent is “to remove barriers to foreign investment in energy, mining, manufacturing and mercantile activities,” while “continuing to limit alien ownership of land used for agricultural or forestry purpose to not more than 640 acres”).

¶15. The statute defines the manufacturing and mercantile activities by reference to the Standard Industrial Classification Manual produced by the Office of Management and Budget. Wis. Stat. § 710.02(2)(e)-(f); see supra ¶ 5 & nn.5-6. These defined activities generally correspond to the business sectors and subsectors for which the United States has agreed to provide national treatment in its Schedule of Specific Commitments. See supra at ¶ 10. In my review, I found that nearly all the service sectors and subsectors in the Schedule are also listed in the Manual with one notable exception. “Services Incidental to Agriculture . . . and Forestry” are included in the U.S. Schedule but are not among the subsectors exempt from the acreage limitation under Wis. Stat. § 710.02(2)(e)-(f). See supra at ¶ 10. With these exceptions, nonresident alien service suppliers may freely acquire land in Wisconsin to use for any of the enumerated service-related purposes.

¶16. The statute prohibits nonresident alien land acquisition and ownership above 640 acres for agricultural or forestry purposes. The GATS does not require its Members to accord other Members or their service suppliers “national treatment” with respect to agricultural and forestry land acquisition and ownership. The only conceivable conflict between the statute and the GATS might arise if a Member or its service supplier sought to acquire more than 640 acres of land for a service incidental to agriculture, e.g., animal boarding, or forestry, e.g., timber evaluation.

¶17. To the extent they seek to enforce their rights under the GATS, GATS Members and their service suppliers are covered by the treaty exception in
Wis. Stat. § 710.02(2)(b). Section 710.02(2)(b) exempts from the acreage limitation “[c]itizens, foreign governments or subjects of a foreign government whose rights to hold larger quantities of land are secured by treaty.” Whether the treaty exception applies to services and service suppliers of GATS Members depends on the answers to two subsidiary questions. First, is the GATS a “treaty” within the meaning of Wis. Stat. § 710.02(2)(b)? And, second, are GATS Members’ service suppliers “citizens” or “subjects of a foreign government” within the meaning of the statute? The answer to both questions is “yes.”

¶18. First, the GATS is a “treaty” under the statute. As the U.S. Supreme Court has recognized, the term “treaty” has more than one meaning. It may refer narrowly to Article II treaties or broadly to any international agreement recognized as binding under international law.

The word “treaty” has more than one meaning. Under principles of international law, the word ordinarily refers to an international agreement concluded between sovereigns, regardless of the manner in which the agreement is brought into force. Under the United States Constitution, of course, the word “treaty” has a far more restrictive meaning.

Weinberger v. Rossi, 456 U.S. 25, 29 (1982) (citation omitted); accord United States v. Belmont, 301 U.S. 324, 330 (1937); B. Altman & Co. v. United States,
224 U.S. 583, 600 (1912); Black’s Law Dictionary 1640 (9th ed. 2009). The “more restrictive meaning” referred to is, of course, based on the Treaty Clause, which gives the President the “Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” U.S. Const. art. II, § 2, cl. 2.

¶19. The term “treaty” is not defined in Wis. Stat. § 710.02(2)(b), elsewhere in the Wisconsin statutes, or in Wisconsin case law. In this definitional vacuum, it is appropriate to adopt the understanding of the term from federal case law, which in turn relies on international customary law. See Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 685 (7th Cir. 2012). This approach is consistent with the general principle of statutory construction that an undefined statutory term well-known in the common law presumptively retains its common law meaning.
See id. (international customary law is equivalent to Anglo-American common law); In re Custody of D.M.M., 137 Wis. 2d 375, 389-90, 404 N.W.2d 530 (1987). Given their role in our federal system, the federal courts have substantial experience and expertise in the exposition of international customary law. See U.S. Const. art. II,
§ 2, cl. 2; 28 U.S.C. § 1331.

¶20. The U.S. Supreme Court has interpreted the term “treaty” to include executive agreements in two cases construing federal statutes. In Weinberger, it construed the following “treaty” exception in the Military Selective Service Act of 1967, which prohibited employment discrimination against American citizens in military facilities abroad:

“Unless prohibited by treaty, no person shall be discriminated against by the Department of Defense or by any officer or employee thereof, in the employment of civilian personnel at any facility or installation operated by the Department of Defense in any foreign country because such person is a citizen of the United States or is a dependent of a member of the Armed Forces of the United States.”

Weinberger, 456 U.S. at 27 n.3 (quoting 85 Stat. 355, note following 5 U.S.C. §7201 (1976 ed. Supp. IV); emphasis the Court’s). The question before the Court was whether a Base Labor Agreement negotiated between the United States and the Republic of the Philippines was a “treaty” that would allow employment discrimination against American citizens under the Act. The BLA was an “executive agreement” that had not been “submitted to the Senate for its advice and consent.” Id. at 32.

¶21. The Court held that the BLA came within the statute’s treaty exception. Id. at 32. Noting the canon of construction that an ambiguous “ ‘act of congress ought never to be construed to violate the law of nations, if any other possible construction remains,’ ” the Court concluded that “some affirmative expression of congressional intent to abrogate the United States’ international obligations is required in order to construe the word ‘treaty’ . . . as meaning only Art. II treaties.” Id. at 32 (quoting Murray v. The Charming Betsy, 2 Cranch 64, 118, 2 L.Ed. 208 (1804)).