February 2014

Weekend Roundup: February 2-8, 2014

The year is now officially in full swing on Opinio Juris with our first symposium of 2014. Up for discussion were both lead articles of the latest AJIL issue. The first article, on the ECOWAS Community Court of Justice, was introduced here by Karen Alter, Larry Helfer and Jacky McAllister and was followed by comments by Solomon Ebobrah, Kofi Kufuor, and...

AJIL Symposium: Reply to Comments on “The Travaux of the Travaux”

[Julian Davis Mortenson is Assistant Professor of Law at Michigan Law.] I am most grateful for the thoughtful comments offered by Bart, Richard, and Ulf. Their observations are well-informed, generous, and extremely useful in advancing the conversation about treaty interpretation. So first and foremost, sincerest thanks to each of them. In my response, I hope (1) to clarify the question that seems principally...

Olympic Free Agency (An Idea Whose Time Has Not Come, Apparently)

I have a piece up on Slate arguing that the Olympics should no longer require competitors to have the nationality of the country for which they compete. A journalist friend of mine once told me, "Don't ever read the comments. Just don't." Misguidedly thinking that Slate readers were somehow exempt from the laws of the internet, I made that mistake. Maybe 10 to 1...

AJIL Symposium: Szewczyk Comment on “The Travaux of the Travaux”

[Dr. Bart Szewczyk is an Associate in Law at Columbia Law] This excellent article provides an invaluable contribution to our knowledge of the original understanding of Articles 31 and 32 of the Vienna Convention of the Law of the Treaties.  Its careful attention to the factual details, articulated in an elegant narrative, provides a vivid picture of the debates and decisions in Vienna.  And its comprehensive analysis of the historical record corrects any modern misperceptions as to what the drafters of the VCLT expected as the rules applicable to treaty interpretation.  The follow-on question, as the article notes, is “whether a regular and uncontested contrary practice has arisen—not just as a matter of what interpreters say, but of what they do—sufficient to undercut that original understanding.” (at 785). Indeed, alongside the VCLT, there may exist several conventions (in the commonwealth, rather than international, sense of the term) governing interpretation for particular treaties, courts, or jurisdictions.  Such contemporary customs or practice may be as important in interpreting treaties as the rules of the VCLT.  For instance, judgments of the International Court of Justice are formally binding only between the parties to a particular case.  The ordinary meaning of the text of Article 59 of the Court’s Statute—the “decision of the Court has no binding force except between the parties and in respect of that particular case”—allows for no other interpretation.  Yet, any State would be highly remiss—and its advocates would border on malpractice—if it argued that an ICJ judgment on a specific legal question should be disregarded because it is not binding.  On the other hand, judicial decisions of other courts may be granted less weight in the ICJ, even though formally, they have equal status with ICJ judgments under Article 38(1)(d) of the ICJ Statute as “subsidiary means for the determination of rules of law.” Or take Article 27 of the U.N. Charter:

Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members.

In the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), the ICJ held that “concurring,” notwithstanding its apparent textual clarity and travaux to the contrary, included voluntary abstentions from voting.  The Court’s interpretation was based on the “consistent[] and uniform[]” practice of the Security Council.” (para. 22).  As for the U.N. Charter so too for the VCLT, subsequent practice can inform or even transform the original interpretation of a treaty provision. The article recognizes this tension between the original understanding of the VCLT and subsequent interpretive practice of international courts.  It notes that 

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.

More on the Al Qaeda Name

For those who try to keep up with the shifting nature of radical Islamist groups – groups too many in the media sometimes wrongly link to Al Qaeda –the stories earlier this week on the group formerly known as Al Qaeda in Iraq, now calling itself ISIS, are significant: Early Monday morning the leadership of al-Qaeda disowned Islamic State of Iraq...

AJIL Symposium: Is the Vienna Convention Hostile to Drafting History? A Response to Julian Davis Mortenson, Part 2

[Dr. Ulf Linderfalk is a Professor of International Law at the Faculty of Law at Lund University, Sweden. The first part of his comments can be found here.] In what sense does the VCLT give a description of the way to understand a treaty? The way Julian describes prevailing legal doctrine, the presumption against preparatory work is effectuated “by a set of threshold restrictions that...

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

[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.

AJIL Symposium: The Travaux of Travaux

[Julian Davis Mortenson is Assistant Professor of Law at Michigan Law] It is often asserted that the Vienna Convention on the Law of Treaties relegates drafting history to a rigidly subsidiary role in treaty interpretation. Many commentators go so far as to suggest that the VCLT entrenches a categorical prejudice against travaux préparatoires—the preparatory work of negotiation, discussions, and drafting that...