When Is a “Plain Meaning” Not Plain?

by Kevin Jon Heller

In my post on biological and chemical weapons yesterday, I rejected the idea that Art. 8(2)(b)(xviii) “squarely appl[ies]” (Ralf Trapp) or “plainly applies” (Alex Whiting) to chemical and biological weapons by arguing that the drafters of the Rome Statute intended Art. 8(2)(b)(xviii), the war crime of “[e]mploying asphyxiating, poisonous or other gases,” to have precisely the kind of “special meaning” that Art. 31(4) of the VCLT requires us to take into account when interpreting that provision.

After the post went up, Alex and I had a heated but typically friendly exchange on Twitter concerning “plain meaning” treaty interpretation. Interested readers can start with this tweet. Our debate did not focus on the applicability of Art. 31(4) of the VCLT. Instead, we argued about whether simply reading the text of Art. 8(2)(b)(xviii) makes it plain that it criminalises chemical and biological weapons. Alex thinks it’s evident that it does; not surprisingly, I disagree.

The problem with the debate is both obvious and timeless: if two people disagree about the correct interpretation of a text, how do they determine whose interpretation is correct? Alex rightly rightly pointed out that we should not reject a particular “plain meaning” simply because one person disagrees with it; any such standard would deny the possibility of plain meaning altogether. (Which, to be clear, I’d be happy to do on other grounds, because I follow the neo-pragmatic approach to interpretation associated with Stanley Fish. See, for example, this fantastic essay.)

But if one person’s disagreement cannot render a “plain meaning” not plain, how many people is enough? Five? 10? 100? At some point disagreement over the meaning of a text has to negate the possibility of any particular interpretation being considered “plain.” Alex and I went around and around on this, and he finally advocated what is essentially a procedural solution to the problem: the “plain meaning” of Art. 8(2)(b)(xviii) is whatever the ICC’s judges ultimately say it is.

As a descriptive matter, Alex is absolutely correct. But unless we believe the ICC’s judges are legally infalliable — and I certainly don’t! — we have to accept the possibility that they could be wrong about the “plain meaning” of Art. 8(2)(b)(xviii). So we are right back where we started: trying to determine how much disagreement over the interpretation of a text has to exist before we conclude the text has no plain meaning.

I have no easy answer. But I would still maintain that it strains credulity to believe that the “plain meaning” of Art. 8(2)(b)(xviii) indicates that it criminalises chemical and biological weapons. To see why, we don’t even have to return (as I think we should) to the drafting history of Art. 8. It is sufficient to note that a significant number of states still believe that Art. 8(2)(b)(xviii) does not criminalise chemical or biological weapons. How do we know that? Because 14 states formally proposed amending Art. 8 to criminalise those weapons at the ICC’s Review Conference in 2010: Argentina, Belgium, Bolivia, Burundi, Cambodia, Cyprus, Ireland, Latvia, Luxembourg, Mauritius, Mexico, Romania, Samoa and Slovenia. Here, in relevant part, are the provisions the 14 states wanted to add to Art. 8(2)(b):

xxvii) Using the agents, toxins, weapons, equipment and means of delivery as defined by and in violation of the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, London, Moscow and Washington, 10 April 1972.

xxviii) Using chemical weapons or engaging in any military preparations to use chemical weapons as defined by and in violation of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, Paris, 13 January 1992.

These proposed amendments make no sense if the “plain meaning” of Art. 8(2)(b)(xviii) already criminalises chemical and biological weapons. So how can that interpretation be considered the “plain meaning,” given that at least 11% of the States Parties to the Rome Statute do not understand Art. 8(2)(b)(xviii) in the supposedly plain manner? Surely such disagreement indicates that there is no “plain meaning” of the war crime.

Does that mean the 14 states are right? Of course not. Perhaps Art. 8(2)(b)(xviii) really does criminalise chemical and biological weapons. All I’m saying is that we cannot reach that conclusion by looking to Art. 8(2)(b)(xviii)’s “plain meaning.” The meaning of the war crime is at best ambiguous or obscure.

But that, of course, is a critical realisation. Because it means that we have to look to the drafting history of the Rome Statute to determine the correct interpretation of Art. 8(2)(b)(xviii) even if we accept a plain-meaning approach to treaty interpretation. (Which we should not.) Here is Art. 32 of the VCLT:

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

(a) Leaves the meaning ambiguous or obscure.

Even though my understanding of the VCLT accords with Julian Davis Mortenson’s, I am willing to entertain the idea that the meaning of some provisions of the Rome Statute is so plain that we have no practical need to examine their drafting history. Art. 8(2)(b)(xviii), however, is not such a provision. Given the widespread disagreement among states concerning whether the war crime criminalises chemical and biological weapons, the best interpretation of Art. 8(2)(b)(xviii) is that it has no plain meaning.


8 Responses

  1. Kevin, a few remarks: for the most part you are not interpreting article 8.2(b)(XVIII) of the Rome Statute, since you are not raising the question of the meaning of any of the terms in that provision. What does it mean by referencing gases and liquids? What does it mean to be asphyxiating or poisonous (or other)? What does analogous mean?

    I also note that the issue is not quite whether a meaning is ‘plain’, but whether it is ‘ordinary’. If you were to say that ‘to asphyxiate’ means to kill by depriving of air or to die by being deprived of air (Oxford Dictionary; no other meanings indicated), the next question would be to ask whether any particular weapon, or category of weapons, would be covered by the language concerned.

    I also note that you put a lot of stock in the intentions of the parties, and appear to want to find those in the preparatory works. However, I do note that those are only subsidiary and that the International Law Commission held that “the text must be presumed to be the authentic expression of the intentions of the parties” and that the starting-point is to elucidate “the meaning of the text, not an investigation ab initio into the intentions of the parties” (Commentary, para. 11, YBILC 1966, Vol. II, p. 220).

    Finally, your burden of proof regarding the preparatory works is not simply whether inclusion of a provision on chemical and biological weapons was defeated, but also whether (all) the parties (negotiating States) in doing so intended to exclude the application of other provisions potentially applicable to such weapons. Whether you can meet that burden, I do not know …

  2. I too am interested in your answer to the foundation question of “Do you believe that because language specifically banning chemical and biological weapons was not included that the language that _was_ adopted (banning the use of asphyxiating and poisonous gasses and analogous materials) is without force?”

  3. Soronel,

    Of course I believe that the adopted language has force — it criminalises what it says it criminalises. My point is that we cannot simply adopt a lay interpretation of “asphyxiating and poisonous gasses and analogous materials,” but have to interpret it to exclude the kind of chemical and biological weapons that the drafters refused to criminalise. I fully acknowledge that it may be difficult, even very difficult, to determine in which category certain chemical weapons belong; there likely is some overlap. (Categorically excluding biological weapons is much easier.) But by the same token, there are technical differences between the different types of weapons, even if laypersons wouldn’t understand them. Indeed, that is itself one of the reasons why I think it’s clear “asphyxiating and poisonous gasses and analogous materials” was intended to have a special meaning that even “plain meaning” interpreters are bound to honour.

  4. Andre,

    With respect, you have not addressed what I argued. You are free, of course, to disagree with me. But you should explain why.

    1. I am indeed interpreting 8(2)(b)(xviii). I am arguing it was intended to have a special meaning to which VCLT 31(4) is applicable — a meaning that excludes chemical and biological weapons.

    2. There is no difference between “plain” and “ordinary” that would affect anything I argued.

    3. That statement does not even acknowledge the existence of 31(4), which recognises intention as part of the general rule of interpretation. Moreover, Julian Davis Mortenson has convincingly shown that the ILC’s statement is misleading, because the drafters of the VCLT gave a much more prominent place to drafting history than most modern interpreters recognise.

    4. I freely acknowledge that certain uses of chemical and biological weapons is not excluded from criminalisation, and have said as much — they must still be used in a discriminate manner, must not be used disproportionately, etc. But all parties were aware that 8(2)(b)(xviii) did not directly criminalise chemical and biological weapons; their rationale for defeating the contrary proposal is irrelevant.


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