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.