Author: Richard Gardiner

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.

Beyond the Vienna Rules

Treaties constitute one of the largest effective components of modern international law. Lawyers routinely have to give meaning to their terms. Mostly this is straightforward, but often enough there are interesting difficulties in deciding what the terms mean and how they apply in novel or unexpected situations. I have found all the posts and comments extremely interesting, and I am grateful...

Art and Rules

I much enjoyed reading the views of Duncan Hollis on the art element in treaty interpretation and on auto-interpretation. I agree that who it is who is making an interpretation may play a key part in the outcome. That two tribunals arrived at different interpretations of similar “umbrella” provisions in bilateral investment treaties shows this all too vividly (SGS v...

Textuality and Preparatory Work

First, my thanks for Malgosia, Isabelle and Jan for all their comments. The work of the ECtHR has an interesting aspect in the present context. One of the first to take up the Vienna rules systematically, the Court (as Malgosia shows) has apparently not found them to constrict its development of a distinctive line of case law appropriate to the Convention...

Treaty Interpretation: Reviewing the Rules

I am most grateful for this opportunity to thank Opinio Juris for hosting discussion of Treaty Interpretation and, in particular, Duncan Hollis for setting up the event. The rules of treaty interpretation codified in the 1969 Vienna Convention on the Law of Treaties, Articles 31-33, have now been around for 40 years, but only in the last 15 has their use become quite widespread....