Why the VCLT Does Not Save Understanding Seven

by Kevin Jon Heller

Both Marko and Joanna Harrington (in comments) have relied on Article 31 of the Vienna Convention on the Law of Treaties to justify the idea that the Court will have to rely on understanding seven to interpret new Article 8bis, the idea being that the adoption of the understandings by consensus is a subsequent agreement that Article 31 makes relevant to the Rome Statute’s context.  That argument, however, is inconsistent with the plain language of Article 31:

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: any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; any instrument which was made by one or more parties in connection 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: any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions.

Notice the highlighted language — a subsequent agreement is binding under Article 31 only if all of the parties to a treaty accept that agreement.  That’s an obvious requirement; a subset of the parties to a multilateral treaty cannot decide to change the terms of the treaty without the others’ consent.  But it’s a requirement that is fatal to understanding seven, because there were at most 80 of the 111 States Parties present when the understandings were adopted by consensus.  Nearly 30% of the parties to the Rome Statute have thus not accepted the understandings — which means that understanding seven cannot be binding under Article 31.

There is, of course, one exception to the rule that a subset of the parties to a multilateral treaty cannot change its terms without the consent of all of the other parties — namely, where the treaty itself provides for such non-unanimous changes.  That is exactly what Article 121(3) of the Rome Statute does with regard to amendments:

The adoption of an amendment at a meeting of the Assembly of States Parties or at a Review Conference on which consensus cannot be reached shall require a two-thirds majority of States Parties.

There is a strong argument that Article 121(3) is poorly drafted — read literally, it would allow 10 States Parties to adopt an amendment on behalf of all 111 if only 10 were present at a particular moment during an ASP meeting or at a Review Conference.  But at least Article 121(3) is in the Rome Statute.  Nothing in Article 121 provides that a subset of the ASP can adopt an understanding by consensus.  So, again, understanding seven can be binding on the Court only if qualifies as a subsequent agreement under Article 31 of the VCLT — and given that it was adopted by less than 75% of the States Parties, it obviously does not.

http://opiniojuris.org/2010/06/16/why-the-vclt-does-not-save-understanding-seven/

One Response

  1. Kevin,

    Great post – I have a couple of points:

    (1) First, methodologically and conceptually: as I explained in my previous post, the word ‘binding’ is not apt to describe the effect of the understanding. If they form a part of the treaty’s context, they are merely to be taken into account in interpretation. They are not legally binding. They are also not a change of the treaty’s terms, but an interpretation of those terms. To the extent that the two cannot be reconciled, the text of the treaty prevails.

    (2) That aside, the point you make that the understandings were adopted by 80 out of 111 states parties is I think a very valid one. But am I to understand that if, in fact, the understandings were adopted by all states parties (say if we could travel back in time and get all state representatives into the room), you would now consider them under Art. 31(2)(a) as context when interpreting the Statute?

    (3) Whether all of the states parties agreed to the understandings, as they would need to have done for Art. 31(2)(a) to apply, is a question of fact. I think that Joanna may well be right in saying that the negotiations and the review conference itself were set up in such a way that states not attending the vote knew what they were getting in to, and that their consent can be inferred. Not having been involved myself, I don’t want to commit on this one way or the other.

    (4) But even if you are right, and the understandings actually do not express the agreement of all states parties, thus rendering Art. 31(2)(a) VCLT inapplicable, they would still count as context under Art. 31(2)(b).

    That para. provides that ‘any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty’ shall be regarded as context.

    Interpretative declarations by parties or several parties are the prime candidates for inclusion under Art. 31(2)(b). Note that the ‘accepted by the other parties’ bit does NOT mean that the other parties necessarily agree with the interpretation being offered, but that they accept that the instrument is related to the treaty. See, e.g., R. Gardiner, Treaty Interpretation (OUP, 2008), at 204.

    Such agreement is in my view palpable, or at least easily inferrable, when it comes to the understandings. If so, the understandings would have to be taken into account as context under Art. 31(2)(b) VCLT even if they were not substantively agreed to by all parties. How much weight should the Court then give to an interpretative declaration by 80 states, and the (predictable) lack of any opposition from 31 of them, would of course be for the Court to say. But again, for practical purposes I find it very unlikely that the Court would depart from them.

    (On interpretative declarations more generally see Alain Pellet’s reports in the ILC on reservations etc.  For some of the draft guidelines on declarations currently being prepared by the ILC, see U.N. Doc. A/CN.4/L.744, esp. guidelines 2.9.8. and 2.9.9, on silence and inference of consent).

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