AJIL Symposium: Comment on “The Travaux of Travaux: Is the Vienna Convention Hostile to Drafting History?”

[Richard Gardiner is a Visiting Professor at University College London, Faculty of Laws]

The article which this symposium addresses is important, timely, and elegant.

It is an important study because it examines one of the most common misunderstandings about the VCLT provisions on the role of preparatory work in treaty interpretation. It lays to rest the mistaken idea that an interpreter may only consider preparatory work if interpretation of a treaty provision by applying the general rule reveals ambiguity or obscurity, or leads to a result which is manifestly absurd or unreasonable. As the study shows, these considerations are only prerequisites for use of preparatory work to determine meaning, not for its much wider role of confirming meaning.

This is particularly timely because the ILC may itself have given the misleading impression in its recent (and otherwise very useful) work on subsequent agreements and practice, suggesting that any recourse to preparatory work is limited by preconditions:

Article 32 includes a threshold between the primary means of interpretation according to article 31, all of which are to be taken into account in the process of interpretation, and “supplementary means of interpretation” to which recourse may be had when the interpretation according to article 31 leaves the meaning of the treaty or its terms ambiguous or obscure or leads to a result which is manifestly absurd or unreasonable. (ILC 2013 Report, Chapter IV, A/68/10, p 14, Commentary on Draft Conclusion 1, para (3), footnote omitted.)

This seems to lose the careful distinction in the 1969 ILC/VCLT scheme between general use of preparatory work to confirm and its conditioned use to determine meaning.

The most elegant feature of the study is its use of the preparatory work of the VCLT to confirm the proper meaning of the Vienna provisions themselves. In doing this it helpfully goes beyond just considering the provisions on supplementary means, setting the context for the misunderstandings over use of preparatory work in further misrepresentations at the Vienna conference of the elements of the general rule in article 31 VCLT.

It was emphatically not the case that the ILC saw interpretation as a largely mechanical process or that the Vienna rules placed undue stress on the ‘ordinary’ meaning of terms in some use of a dictionary sense. Professor Waldock opened the ILC’s work on the draft articles on interpretation by stressing the view that “The process of interpretation, rightly conceived, cannot be regarded as a mere mechanical one of drawing inevitable meanings from the words in a text …” [1964] Yearbook of the ILC, vol.II, p. 53, para (1).

As he explained at the Vienna conference: ‘With regard to the expression “ordinary meaning”, nothing could have been further from the Commission’s intention than to suggest that words had a “dictionary” or intrinsic meaning in themselves. … The Commission had been very insistent that the ordinary meaning of terms emerged in the context in which they were used, in the context of the treaty as a whole, and in the light of the object and purpose of the treaty.’ (United Nations Conference on the Law of Treaties, First Session, Summary Records, p.184, para 70.)

That interpretation was not to be a purely literal, textual, dictionary exercise was further demonstrated by the importance which the ILC attached to the other elements of the general rule, which include practice showing agreement as to meaning and other factors to be evaluated as one unitary process. That the ILC expected preparatory work to inform this process through the confirmation of meaning route was reported to the conference by Waldock:

It was important to bear in mind that, under article [32], such supplementary means as  preparatory work could be used “in order to confirm the meaning resulting from the application of article [31]”, apart from serving to determine that meaning in the cases envisaged in  subparagraphs (a) and (b) of article [32]. The International Law Commission had given careful consideration to the term “confirm”; … There had certainly been no intention of discouraging automatic recourse to preparatory work for the general understanding of a treaty. (United Nations Conference on the Law of Treaties: Official Records, First Session, Vienna, 1968: Summary Records, p. 184, para (69), with article numbers as finally agreed)

These indications by the ILC prompt the thought that one might revisit the interesting parallel posts on Opinio Juris and EJIL:Talk! (1, 2) last summer, and  on chemical weapons and the meaning of “poison” in the Rome Statute. The emerging focus in the posts was on whether an intent to exclude chemical weapons, gleaned from the record of deletion of a draft provision specifically including them, trumped a possible ordinary meaning selected from a dictionary, or vice versa. The ILC’s warning above suggests that the mere presence in the dictionary (OED) of multiple definitions of the term “poison”, including one for use especially in chemistry or biochemistry, should take the interpreter straight to the context which includes a provision setting out a presumption in favour of the defendant if there is any ambiguity. If the preparatory work is inconclusive as to a common understanding of the meaning of “poison”, it does nevertheless confirm that there was uncertainty whether that term covered chemical weapons. Hence the route to the Statute’s presumption in favour of the defendant is clear throughout the interpretative process.

The case for at least a supportive role for preparatory work, as well as the clear one when the preconditions for a determinative role are met, seems well in line with the ILC’s approach in the 1960s. Once again, help is found in Waldock’s explanation of the potential role for travaux:

They are simply evidence to be weighed against any other relevant evidence of the intentions of the parties, and their cogency depends on the extent to which they furnish proof of the common understanding of the parties as to the meaning attached to the terms of the treaty. (Waldock, ‘Third Report on the Law of Treaties’, [1964] Yearbook of the ILC, vol II, p 58, para 21 (emphasis in original)).