May Preparatory Work be Used to Correct Rather than Confirm the ”Clear” Meaning of a Treaty Provision?1

 

 

By International Court of Justice President STEPHEN M. SCHWEBEL

The point of this paper is that preparatory work may be used to correct as well as confirm the ”clear” meaning of the provisions of a treaty.

 

The Vienna Convention on the Law of Treaties, which entered into force in 1980, has been adopted at this writing by some 80 States, i. e. under half of the membership of the United Nations; and the States not party include a variety of States large and small, including such major States as the United States of America, China, Brazil, India and Pakistan. It nevertheless has been treated more than once by the International Court of Justice as expressive of customary international law binding upon States parties and non-parties alike. Thus in the case concerning the Territorial Dispute (Libyan, Arab Jamahariya/Chad),2 the Court held:

 

”in accordance with customary international law, reflected in Article 31 of the 1969 Vienna Convention on the Law of Treaties, a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose. Interpretation must be based above all upon the text of the treaty. As a supplementary measure recourse may be had to means of interpretation such as the preparatory work of the treaty and the circumstances of its conclusion.”

 

In the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain: Jurisdiction and Admissibility,3 the Court applied (or, it may be argued, misapplied) the Vienna Conven-

 

1First published in THEORY OF INTERNATIONAL LAW AT THE THRESHOLD OF THE 21ST CENTURY, ESSAYS IN HONOUR OF KZRYSZTOF SKUBISZEWSKI, ed. J. Makarczyk, Kluwer Law International (1996). 2 ICJ Reports 1994 at 21-22. 3 ICJ Reports 1995 at 21-22. See also, the author's dissent, ibid. at 27-39; that of Judge Shahabudeen, ibid. at 56-58; that of Judge Koroma, ibid. at 69-73; and that of Judge Valticos, ibid. at 75-76.

tion's provisions on the interpretation of treaties to determine the rights of the parties to the dispute though neither Bahrain nor Qatar were party to the Convention. In so doing it again brought to bear Articles 31 and 32 of the Convention, which were among those whose adoption in the terms adopted was most vigorously contested at Vienna.
    Article 31 and 32 of the Vienna Convention provide:

 

”Article 31

 

General rule of interpretation

 

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

 

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

 

(a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;

 

(b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

 

3. There shall be taken into account, together with the context:

 

(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

 

(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

 

(c) any relevant rules of international law applicable in the relations between the parties.

 

4. A special meaning shall be given to a term if it is established that the parties so intended.

 

Article 32

 

Supplementary means of interpretation

 

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable."

 

The problem to which this essay is devoted is this. Suppose that the Court or another interpreter of a treaty arrives at an interpretation of the terms of a treaty at issue ”in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. Suppose as well that the parties to the treaty have argued and placed before the Court the preparatory work of the treaty and the circumstances of its conclusion, as they customarily do. Suppose that the Court has, as it invariably must, read, listened to and weighed the evidence and arguments of the parties respecting the preparatory work as it has their other evidence and arguments. May it bring to bear in arriving at its interpretation of the treaty the travaux préparatoires only ”to confirm the meaning resulting from the application of Article 31?” Or may it bring to bear the travaux to correct — or indeed from the outset to inform and influence — what otherwise would be its understanding of the meaning of the treaty provisions at issue? Of course these questions assume that the Court or other treaty interpreter has not found that the interpretation according to Article 31 leaves the meaning of the treaty provision ”ambiguous or obscure” or ”leads to a result which is manifestly absurd or unreasonable.” If it has so found, by the terms of Article 32 it is plain that the interpreter may employ preparatory work ”to determine the meaning”. In point of fact, the terms of a treaty which come before the Court for interpretation, if not usually obscure, are often ”ambiguous.” If this were not so, that is, if they did not lend themselves to argument attaching different meaning to their terms, they would not likely be legally contested at all. Moreover, it is not infrequent that the ”ordinary meaning” of the terms of a treaty, even if found to be unambiguously such, leads to a result which, if not ”manifestly absurd” is ”unreasonable” — at any rate, in the view of one of the parties to the dispute.
    But let us put all that aside, and concentrate on the assumption that the Court or interpreter has found the ”ordinary meaning” and proposes to have recourse to the preparatory work of the treaty ”in order to confirm” it in circumstances in which that meaning is not ambiguous or obscure or in which it will not lead to a result which is manifestly absurd or unreasonable.

 

It will at once be objected that the assumption — and hence the hierarchical structure of Articles 31 and 32 of the Vienna Convention — is unreal. Since the parties to the case have argued (or so often argued) that the preparatory work shows this or that, and since the Court perforce has had to consider any such arguments and the evidence on which they rely before arriving at even a provisional interpretation of the treaty, how can it be that recourse to the travaux is only a ”supplementary” way of confirming the meaning resulting from the application of Article 31? The answer to that objection is that it is unanswerable. Three quotations of statements of leading members of the International Law Commission made in the course of the Commission's preparation of the draft of the Vienna Convention are telling. Shabtai Rosenne:

 

”It was true that there existed a number of apparently consistent pronouncements by the International Court of Justice and arbitral tribunals to the effect that travaux préparatoires had only been used to confirm what had been found to be the clear meaning of the text of a treaty. However, that case-law would be much more convincing if from the outset the Court or tribunal had refused to admit consideration of travaux préparatoires until it had first established whether or not the text was clear, but in fact, what had happened was that on all those occasions the travaux préparatoires had been fully and extensively placed before the Court or arbitral tribunal by one or other of the parties, if not by both. In the circumstances, to State that the travaux préparatoires had been used only to confirm an opinion already arrived at on the basis of the text of the treaty was coming close to a legal fiction. It was impossible to know by what process judges reached their decisions and it was particularly difficult to accept the proposition that the travaux préparatoires had not actually contributed to form their opinion as to the meaning of a treaty which, nevertheless, they stated to be clear from its text, but which, as the pleadings in fact showed, was not so. At all events, it could be supposed that all practitioners of international law were free in their use of travaux préparatoires."4

Mustafa Yasseen:

 

”The clearness or ambiguity of a provision was a relative matter; sometimes one had to refer to the preparatory work or look to the circumstances surrounding the conclusion of the treaty in order to determine whether the text was really clear and whether the seeming clarity was not simply a deceptive appearance. He could not accept an article which would impose a chronological order and which would permit reference to preparatory work only after it

 

4 I Yearbook of the International Law Commission (1964) at 283, para. 17. (The quotation is from the summary record.)

 

had been decided that the text was not clear, that decision itself being often influenced by the consultation of the same sources."5

Sir Humphrey Waldock: ”It was unrealistic to imagine that the preparatory work was not really consulted by States, organizations and tribunals whenever they saw fit, before or at any stage of the proceedings, even though they might afterwards pretend that they had not given it much attention ... the reference to confirmation and, a fortiori, verification tended to undermine the text of a treaty in the sense that there was an express authorization to interpret it in the light of something else; nevertheless that was what happened in practice.”6

(It may be recalled that Sir Humphrey Waldock was the Commission's last Special Rapporteur on the topic.)

 

Nevertheless, in view of the persistence of the pretence that recourse to preparatory work may be had ”in order to confirm” the meaning otherwise arrived at, what if that allegedly postponed and purely supplementary means of interpretation when applied fails to confirm that ”ordinary meaning?” Two possibilities present themselves. Either the preparatory work must be discarded and its import set aside; or ”the meaning resulting from the application of Article 31” may or must be corrected to take account of the distinctive light shed on the meaning of the treaty provisions at issue by the preparatory work. Which is the better interpretation? If one takes the ordinary meaning of the word, ”confirm,” that is, in this context, to make firmer, to strengthen, to settle, to verify, it follows that, where the preparatory work is consistent with the ”ordinary” meaning, it may be invoked to buttress the interpretation otherwise arrived at; but where the preparatory work undermines, detracts from or otherwise fails to sustain this ordinary meaning, it may not be taken into account to correct it.
    That, of course, is one more illustration of the inadequacy of reliance upon the ”ordinary” or ”plain” or ”clear” meaning of a treaty provision.7 So interpreted, the reference to preparatory work

 

5 Ibid. at 313, para. 56. 6 Ibid. at 314, para. 65. 7 For a vigorous analysis of the ”obscurantist tautology” inherent in ”plain” or ”ordinary” or ”clear” meaning, see the statement of Professor Myres S. McDougal, of the United States Delegation to the Committee of the Whole of the Vienna Conference on the Law of Treaties, printed verbatim in the 62 American Journal of International Law (1968) at 433, and reprinted M.S. McDougal, H.D. Lasswell and V.C. Miller, THE INTERPRETATION OF INTERNATIONAL AGREEMENTS AND WORLD PUBLIC ORDER. As Lord McNair put it, the maxim of clear meaning ”is in truth a petitio principii because it begs the question whether the words are, or are not clear — a subjective matter because they may be clear to one man and not clear to another, and fre-

 

is unnecessary; the ordinary meaning stands without it. Why have recourse to that which is merely confirmatory of what is already so plain? Especially why so, if preparatory work is subject to the disabilities which its critics attribute to it? (It is claimed that preparatory work is misleading, fragmentary, too difficult to find or — somewhat inconsistently — too ample, or is ”merged” in the final text which then has a life of its own. These criticisms may be merited in some cases, unmerited in others.) Interpreted in this fashion, this provision of Article 32 is essentially without purpose. It follows that it may not be so interpreted, since it is a canon of treaty interpretation that clauses may not be interpreted to be surplusage. That is all the more so in a treaty prepared and adopted with the extraordinary care that went into the preparation and adoption of the Vienna Convention on the Law of Treaties. The Vienna Convention does not reproduce boilerplate as so many contracts routinely do. It is rather the product of a line of British Special Rapporteurs of the International Law Commission of quite exceptional distinction; of a Commission which then was at the peak of its powers; and of two extended sessions of plenipotentiary conferences at which every provision of the draft convention was subjected to careful consideration. If, as Article 31 itself prescribes, a treaty is to be interpreted ”in good faith”, surely the provision of Article 32 respecting recourse to preparatory work must be understood to be meaningful rather than meaningless. If preparatory work may be invoked only when it confirms the ordinary meaning otherwise deduced, the provision for its application in Article 32 approaches the meaningless. But if preparatory work may be invoked to correct the ordinary meaning otherwise deduced (if not to inform and influence the interpretation of the treaty from the outset), it and the provision of Article 32 are accorded a meaningful place.
    What light does the preparatory work of the Vienna Convention itself shed on this very issue? Not much, because surprisingly little was said on the point. But what little there is supports the approach of this writer.
    The views of the Special Rapporteur of the International Law Commission at the time of the Vienna Conference, Sir Humphrey Waldock, were quoted above in terms that indicate that he understood ”confirmation” as tending to permit the ”undermining” of the text of a treaty. The most direct answer to the question addressed in this essay appears to have been that offered by the representative of Portugal at the Vienna Conference:

 

 

quently to one or more judges and not to their colleagues”., McNair, THE LAW OF TREATIES (1961) at 372.

 

”What would happen if, though the text of a treaty was apparently clear, in seeking confirmation in the preparatory work and other surrounding circumstances a divergent meaning came to light? It was impossible to be sure in advance that those circumstances would confirm the textual meaning of the treaty. If the emphasis were placed on good faith, it would appear that in such a case those circumstances should be taken into consideration, although they did not lead to the confirmation of the meaning ..."8

As far as the writer is aware, nothing in the record of the Vienna Conference counters this eminently reasonable position.
    There is a further consideration, allied with that of good faith, which supports the interpretation set out above, namely, that the provisions of the Vienna Convention must be interpreted to be effective rather than ineffective. To confine preparatory work to the place to which a literal interpretation of the term, ”to confirm”, consigns it, hardly renders Article 32 effective.9 It should finally be recalled that the provisions of the Vienna Convention were seen by the International Law Commission and its Special Rapporteurs, and were adopted by the Conference, largely (though not entirely) as a codification of international law, as a crystallization of State practice. That certainly was true of Article 31 and 32, which were thought not wholly to embrace one or another school of treaty interpretation but as articles which encompassed and balanced them. The balance heavily inclined towards the text of the treaty as the authentic expression of the intentions of the parties, and away from the intentions of the parties as an element distinct from the text and away from the declared objects and purposes of the treaty as guides to interpretation. But it included all these elements. It was seen as a compromise text designed to reflect the differing approaches and to attract the maximum adherence of the international community.
    However, if the reference in Article 32 to recourse to preparatory work is to be marginalized by a literal interpretation of the term, "to confirm," that compromise vanishes; the ascendancy of the plain meaning school is complete. In that event, the Vienna Convention could hardly be said, in its provisions for treaty interpretation, to be reflective of customary international law, for there is simply too much State practice and too much judicial precedent that accords preparatory work a greater place.10 A treaty, even a

 

8 United Nations Conference on the Law of Treaties, First Session (1968), Official Records at 183. 9 For the classic and compelling exposition of the principle of effectiveness, see
H. Lauterpacht, Restrictive Interpretation and the Principle of Effectiveness in the interpretation of treaties, XXVI BRITISH YEAR BOOK OF INTERNATIONAL LAW (1949) at 73. 10 For an analysis of precedent in the use of preparatory work in the Permanent Court of International Justice and the International Court of Justice, see
Sir Hersch Lauterpacht, THE DEVELOPMENT OF INTERNATIONAL LAW

 

great law-making convention such as the treaty on treaties, can hardly be said to be reflective of customary international law if it does not in fact fairly reflect State practice and judicial precedent. That practice and that precedent demonstrate that preparatory work is often brought to bear in the interpretation of treaties, by the parties to those treaties and by their interpreters, and this whether the travaux préparatoires confirm or correct an interpretation otherwise arrived at.

BY THE INTERNATIONAL COURT (1958) at 116-141. For a discerning discussion of the place of preparatory work in treaty interpretation, see M.S. McDougal, H.D. Lasswell and V.C. Miller op. cit, supra note 6, at 122-132.