AJIL Symposium: Is the Vienna Convention Hostile to Drafting History? A Response to Julian Davis Mortenson, Part 1

by Ulf Linderfalk

[Dr. Ulf Linderfalk is a Professor of International Law at the Faculty of Law at Lund University, Sweden.]

Julian’s article focuses on a single proposition (p. 780)

“[W]hen an interpreter thinks a text [of a treaty] is fairly clear and produces results that are not manifestly unreasonable or absurd, she ought to give that prima facie reading preclusive effect over anything the travaux [préparatoires] might suggest to the contrary.”

Specifically, Julian argues (p. 781), that this proposition – while today shared by an overwhelming majority of international judiciaries and legal scholars – “cannot be reconciled with the agreement actually reached in 1969” and embodied by Articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties (VCLT).

In critically assessing Mortenson’s article, I find that it builds on three assumptions:

  • In the final analysis, the legally correct meaning of a treaty is determined by the intention of its parties. Thus, when interpreting a treaty, the ultimate purpose is to find out how the original parties to the treaty actually intended it to be understood.
  • Articles 31 and 32 of the VCLT guide interpreters to discovering the common intention of treaty parties. Thus, ordinary meaning, context, preparatory work, and other means of interpretation help interpreters understand the legally correct meaning of a treaty.
  • A detailed analysis of the preparatory work of the Vienna Convention is an appropriate method for a scholarly analysis of the legally correct meaning of Articles 31 and 32 of the VCLT.

As I will explain in my two posts for this Symposium, I think all three of Julian’s assumptions are either fundamentally flawed or seriously debatable. Readers with a particular interest in issues of treaty
interpretation might want to consult the slightly more elaborate working paper that I have recently posted on the SSRN.

What is the concept of party intention assumed by the VCLT?

The ultimate aim of a process of interpretation, as described by Articles 31-32 of the VCLT, is to establish the legally correct meaning of the interpreted treaty. By the legally correct meaning of a treaty, international lawyers generally understand it to mean the communicative intention of the treaty parties, that is to say, the meaning which the parties intended the treaty to express. The relevant provisions of the VCLT certainly confirm this approach to treaty interpretation. However, contrary to the assumption of Julian Mortenson, as clearly indicated by the wording of Articles 31-32 of the VCLT, it is not necessarily the communicative intention of the original parties to a treaty that the interpretation process aims to determine. The aim, rather, is to determine the communicative intention of those states, which are parties to a treaty at the time of interpretation. Any other understanding of the VCLT would render Article 31, paragraph 3 inexplicable, considering the definition in Article 2, paragraph 1(g) of a party as “a State which has consented to be bound by the treaty and for which the treaty is in force”. If it had been the ultimate purpose of the interpretation of a treaty to establish the communicative intention of only those states that took part in its negotiation and final conclusion, then why is it a requirement that a subsequent practice, for instance, establishes the agreement of all treaty parties, which in the case of a multilateral treaty open for general accession typically include also states that have entered the treaty at a later stage? It does not make sense.

Now, about the assumption adopted by Julian that is the ultimate purpose of the interpretation of a treaty to determine the actual communicative intention of its parties, I can only refer to pragmatics. According to this branch of linguistics, an utterance can be understood only on the assumption that whoever produced it acted rationally. That is to say, the addressee of the utterance has to assume that the utterer (whether a writer or a speaker) acted in conformity with some particular standard or standards of communication. Like pragmatics, I will refer to any such assumption made by an agent in the interpretation of an utterance as a communicative assumption.

The interpretation of a treaty is no different than the understanding of just any verbal utterance produced by a person or group of persons, whether orally or in writing. To think otherwise would seem somewhat naïve. Naturally, different kinds of communicative assumptions may be relevant for the interpretation of utterances depending on such things as, for instance, the functional or social reason causing them. To give just a few examples, in the specific context of treaty interpretation, as can be seen from the practice of international courts and tribunals, law-applying agents operate on assumptions such as the following:

  • that treaty parties arranged things so that the treaty conforms to the lexicon, grammar and pragmatic rules of the language used for every authenticated version of it.
  • that treaty parties arranged things so that a consistent meaning can be conferred on all words and lexicalized phrases used in the interpreted treaty.
  • that treaty parties arranged things so that no parts of the treaty comes out as redundant.
  • that treaty parties arranged things so that the application of the treaty results in the realization of its object and purpose.
  • that treaty parties arranged things so that the treaty does not derogate from any other international legal norm applicable in the relationship between them.
  • that treaty parties arranged things so that the treaty corresponds to whatever can be inferred from the subsequent practice developed in its application rather than to whatever can be inferred from its preparatory work.

Obviously, the role of the various means of interpretation listed in Articles 31-32 of the VCLT is to permit assumptions such as those just stated.

The point of this methodological detour is that it tells us something important about the ultimate purpose of the treaty interpretation process, as described in Articles 31-32 of the VCLT. Obviously, if Articles 31-32 presuppose the existence of a series of communicative assumptions, then for their application it is immaterial whether in the case of the interpretation of a particular treaty provision relative to a particular set of facts, the treaty parties had any actual communicative intention or not. A proposition about the meaning of treaty provision can be legally correct although in the final analysis it remains an assumption, the truth of which cannot possibly be verified. In the conceptual universe of the VCLT, consequently, the communicative intention of treaty parties is a rational construct.

Some commentators of the VCLT, and among them Julian, express themselves as if ultimately, Article 31 was applied to determine the meaning of the text of a treaty, and if because of this, an argument based on studies of preparatory work was in some sense truer of the communicative intention of the treaty parties. To illustrate, Mortenson writes on page 787:

“[A] failure [of drafting history] to confirm might show that the provisional interpretation would produce absurd results in the sense of Article 32(b) – not necessarily absurd in the abstract (if the VCLT rejected anything, it was the idea of interpretation in the abstract) but absurd measured by the thing that the interpreter now knows that the parties were trying to achieve”.

This idea builds on a misunderstanding of the organizational structure of the VCLT and the concept of party intention. First, conventional language, context, the object and purpose of a treaty, as well as preparatory work, are all means to determine the communicative intention of the parties. The determination is done differently, of course. Using conventional language, for example, the communicative intention of the parties is determined based on the assumption that the parties arranged things so that the treaty conforms to the lexicon, grammar and pragmatic rules of the language used for every authenticated version of it. Using preparatory work, the communicative intention is determined based on the assumption that the parties arranged things so that the treaty corresponds to whatever can be inferred from its preparatory work. Second, no argument based on any means of interpretation is truer of the communicative intention of the parties to a treaty than any other. If the concept of the communicative intention of the parties is a rational construct, the truthfulness of an argument favoring a particular understanding of a treaty is not an issue. Certainly, an argument based on Article 31 often forms a stronger reason for the adoption of a meaning than an argument based on preparatory work, but that is an entirely different thing.

http://opiniojuris.org/2014/02/05/ajil-symposium-vienna-convention-hostile-drafting-history-response-julian-davis-mortenson-part-1/

3 Responses

  1. Hi Ulf –

    Thanks so much for these thoughtful comments. I’ll offer thoughts about your principal points in my official 1,000-word response when it runs. But I was quite intrigued by one thing that I won’t have space to address in the formal response, so I thought I’d follow up on it here in the comments.

    You say that the VCLT “confirm[s]” that “the legally correct meaning of a treaty” is defined by “the communicative intention of the treaty parties.” My first reaction was — “Boy, that’s a lot further than I’d go! What about subsequent practice?” But then you clarify that you don’t mean “the communicative intention of the original parties to a treaty,” but rather “the communicative intention of those states, which are parties to a treaty at the time of interpretation.”

    When and if you have a chance, I’d love to hear a bit more about this idea. I don’t take you to suggest a temporal paradox—e.g., something like states forming new communicative intentions for which an existing instrument serves as the operational legal vehicle. Your views as I understand them make it unlikely that you’d be attracted to such a free-floating idea of infinitely malleable ex post “intent.” Are you instead referencing the role of Article 31(3) in establishing treaty meaning? Or the policy objection that it’s unfair to apply the implications of preparatory work to a state that didn’t itself help draft the text? Or something else entirely?
    If you have a chance, I’d love to hear even a few more words about your frame for this point, which I found most intriguing!

    -Julian

  2. The idea of a communicative intention of the parties has an important role to play, of course, but I would not have described that role the way you do in the first sentence. As I see it, there is a difference between saying that the legally correct meaning of a treaty is defined by the communicative intention of the treaty parties, and saying that the ultimate aim of the treaty interpretation process is to determine the communicative intention of the treaty parties. If pragmatics are correct in concluding that the communicative intention of an utterer can only be assumed, then we will never know whether a particular understanding of a treaty actually squares with the communicative intention of the parties, if ever there is one. Consequently, on the one hand, I would whole-heartedly defend the idea of a communicative intention of treaty parties, because without it, not only would Articles 31-33 of the VCLT be incomprehensible; the treaty interpretation process would lose all direction. On the other hand, I would have serious objections to any suggestion that a particular understanding of a treaty “does not correspond to the communicative intention of the treaty parties”. All that matters, as I see it, is whether the understanding can be defended based on Articles 31-33 of the VCLT. This position is not as ambivalent as it might first seem.
     
    About so-called dynamic interpretation and temporal paradoxes. I wrote an article on this topic some six to seven years ago. (See Ulf Linderfalk, “Doing the Right Thing for the Right Reason: Why Dynamic or Static Approaches Should be Taken in the Interpretation of Treaties”, International Community Law Review, Vol. 10 (2008), pp. 109-141.) In this article, based on the linguistic literature that I had plunged for my book, I defended the idea that parties to a treaty sometimes use generically referring expression. That is to say, parties use expressions for the purpose of referring, not to a single individual, object, or activity, and not to any defined group of individuals, objects, or activity, but to a class of such individuals, objects, or activities. Examples include expressions such as the King of Sweden, the environment, and the exercise of jurisdiction over continental shelf resources.
     
    In the interpretation of terms that can be used as generically referring expressions, first of all, the interpreting agent often has to decide whether parties intended to use it to refer generically or not. The problem is, of course, that many languages allow us to use terms both as single or general referring expressions and as generically referring expressions. Take the term “the King of Sweden”, for instance; it can be used to refer to the present King or to whoever holds this position at the assumed moment. The ICJ struggled with this issue in the Aegean Sea Continental Shelf Case, as did the NAFTA Arbitral Panel in Canadian Agricultural Tariffs.
     
    If the interpreting agent finds reasons to believe that parties to a treaty used a particular term as a generically referring expression, he/she/it then has to confront a second issue: it has to be decided whether treaty parties referred to a class, the existence of which is tied to a particular point in time, or time interval, or not. Once again, as I would argue, the decision has to be taken based on reasons. The subject matter governed by the treaty, for example, has often been used by the ECtHR as an excuse for finding a referent referred to in the ECHR not tied to any particular point in time. In the interpretation of international boundary agreements, on the other hand, the importance of the stability of a legal relationship has typically been used as a good reason for assuming the opposite to be the case.
     
    The point of my argument is this: when an interpreting agent finds that treaty parties used a term as a generically referring expression, depending on whether he/she/it finds that parties referred to a referent tied to a particular point in time, or time interval, or not, this will affect the way the agent then conceives of means of interpretation such as “the ordinary meaning”, and the relevant rules of international law (Art. 31, para. 3(c)), and possibly also the object and purpose of the treaty (if there are reasons to believe that parties have later redefined what they wish to achieve by applying a treaty). When I wrote my 2008 article, for obvious reasons, I had no chance to take into account the judgment of the International Court of Justice in Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), which was delivered in 2009. But my understanding of the judgment is that the explanation given by the Court’s of “Why Dynamic or Static Approaches Should be Taken in the Interpretation of Treaties” is largely the explanation I was trying to defend a couple of years earlier.
    – Ulf

  3. Describing the aim of the process of interpretation as being to establish “the legally correct meaning” seems an apt way of putting it; but is analysis of this in terms of “the communicative intention of the treaty parties” equally correct? An intention needs an owner. Yet if the term “intention” is any help, would it not better reflect the VCLT to omit the word “parties” and look for the communicative intention of the treaty?

    A focus on giving meaning to the agreement in the treaty seems more in line with the overall scheme of articles 31–33 VCLT than looking into the putative minds of the parties. The ILC avoided expressing the interpretative process as a search for intention, except in article 31(4).

    Of course the common understanding of  a treaty shown by the negotiators and parties comes into the process, hence the outcome of applying the Vienna rules should reflect the intention of the parties in what M Fitzmaurice describes as “a more objective sense” (ch. 31 in Shelton (Ed), The Oxford Handbook of International Human Rights Law, 2013).

    The concept of “communicative intention” sounds related to the description of a treaty by McDougal and others as a “continuing process of communication” (Interpretation of Agreements..., 1967). The ILC, in its current work on treaties, offers a conclusion that subsequent agreements and subsequent practice may help determine whether “the presumed intention of the parties upon conclusion of the treaty” was to give a term an evolutionary potential (2013 Report, chapter IV, draft conclusion 3). The commentary, however, indicates that “presumed intention” is to be discovered by application of the Vienna rules, so that this term simply refers to the proper interpretation of the treaty.

    The Vienna rules envisage taking into account a range of elements, potentially extending from before the birth of a treaty to the moment of interpretation, with some (albeit limited) indications of the different weight to be given them. Perhaps, then it is best to use the rules to the extent that they guide interpretation without trying to transform them into a search for some qualified formulation of intention.

     

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