[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 relegate drafting history to ‘a carefully bounded and contingent role’, for use only … ‘when the text [of a treaty] cannot, in itself, guide the interpreter’” (pp. 782-783). Julian finds this position to be inconsistent with legal practice. As he says, (p. 783)
the ‘strange thing’ about Articles 31 and 32 ‘is that the one serious limit these rules set, is constantly ignored: I cannot think of a serious lawyer who would not at least have a look at some of the preparatory work to bolster her conclusion or, if necessary, reconsider her conclusion, regardless of whether the interpretation without the preparatory works would lead to ambiguous or absurd results.’
Such statements indicate a failure to distinguish between the scholarly investigation and description of an activity such as the interpretation of treaties in a context of discovery and in a context of justification, respectively.
Investigating the usage of Articles 31-32 of the VCLT in a context of discovery, scholars’ primary interest is with the mental processing of the kinds of material listed in those two provisions. Scholars are interested in knowing the way some given agent or agents, or class of agents (such as international lawyers or judiciaries, for instance) actually use particular means of interpretation in reaching an understanding of a treaty. Investigations ask questions such as the following:
(1) When lawyers think they have an insufficient understanding of a treaty, do they generally consult preparatory work?
(2) In any situation described in Question (1), do lawyers generally consult the relevant conventional language or languages, that is, the lexicon, grammar, and pragmatic rules of the language used for the authenticated version or versions of the treaty?
(3) In any situation described in Question (1), to the extent that lawyers consult preparatory work and conventional language, do they generally consult conventional language before they consult preparatory work, or rather the opposite?
Investigating the usage of Articles 31-32 of the VCLT in a context of justification, scholars’ primary interest is with international law as a reason for action. Scholars are interested in knowing under what particular condition or conditions an understanding of a treaty will be considered legally correct. Investigations ask questions such as the following:
(4) In a situation where a treaty is in need of clarification, when does an agent have a legally sufficient reason to understand the treaty in accordance with conventional language?
(5) In any situation described in Question (4), when does an agent have a legally sufficient reason to understand the treaty in accordance with whatever can be inferred from its preparatory work?
(6) In any situation where the usage of conventional language and preparatory work imply the adoption of different meanings, when does an agent have a legally sufficient reason to understand the treaty in accordance with conventional language rather than in accordance with whatever can be inferred from preparatory work?
(7) In any situation described in Question (6), when does an agent have a legally sufficient reason to understand the treaty in accordance with whatever can be inferred from preparatory work rather than in accordance with conventional language?
Obviously, like most rules in the VCLT, Articles 31-32 give a description of the proper justification of legal propositions. They do not seek to teach us anything about the mental processing of interpreters of interpretation data such as preparatory work and conventional language. Rather, they seek to teach us something about the conditions under which the understanding of a treaty in accordance with each respective set of data will be considered legally correct. Any failure to see this will quite naturally cause questions like that posed by Julian on page 787:
[The Confirmation Route] allows the use of travaux to check and reassess the provisional hypothesis yielded under Article 31. Unsurprisingly, this inquiry usually validates the interpreter’s hypothesis. But not always. Sometimes, a fair and thorough analysis of the travaux will convince an interpreter that the drafters meant to convey something different from her original understanding. What happens then?
Obviously, if Articles 31-32 gives a description of the interpretation of treaties, not in a context of discovery, but in a context of justification, then nothing in the VCLT prevents an agent from consulting the preparatory work of a treaty before he/she/it engages in serious studies of conventional language, the context of the treaty, or its object and purpose. The order of consultation is immaterial. In a context of justification, the relevant questions are whether or not the meaning that the agent possibly discovers from studying preparatory work can be justifiably inferred; whether Article 31 provides sufficient reason to confer a different meaning on the treaty; and if so, whether there are sufficient reasons to refer to that meaning as manifestly absurd or unreasonable, in the sense of Article 32.
What is the appropriate method for a scholarly analysis of Articles 31-32 of the VCLT?
Julian’s conclusion about the role and significance of preparatory work for the interpretation of treaties builds on an analysis of the meaning of Article 31, paragraph 4, and Article 32 of the VCLT. The methodology used for this analysis implies very little usage of other interpretation data than the preparatory work of the VCLT, including Summary Records and Documents of the Vienna Conference; Reports of the 1966 meetings of the Sixth Committee of the UN General Assembly; the Final Draft Articles With Commentaries adopted by the International Law Commission in 1966; comments given by governments on the ILC Final Draft Articles; the Draft Articles With Commentaries preliminarily adopted by the International Law Commission in 1964; Summary Records of the ILC meetings held in 1964 and 1966; and the Third and Sixth Reports of the ILC Special Rapporteur on the Law of Treaties. Obviously, this choice of methodology assumes the conclusion. Julian relies primarily on preparatory work to show that preparatory work can be used as a “primary means of interpretation” – on an equal footing with conventional language, context, and the object and purpose of a treaty. To Julian’s defense, it could perhaps be contended that whatever other methodology he would have chosen, he would have appeared as internally inconsistent. This contention, however, builds on a misunderstanding of the role of the international legal scholar.
Treaty interpretation is an activity that engages many different kinds of agents, including, for example, international legal scholars, judiciaries, state organs and representatives, and state counsels. Not all agents are subject to the same societal constraints, of course. Depending on the capacity of a treaty interpreter, consequently, different lines of action are typically expected. So, for example, is a person acting as state counsel expected to choose the line of action that serves the particular interest of his or her employer or client as effectively as possible. One-sidedly advocating a particular meaning of a treaty, without caring too much about other possible meanings or counter-arguments, is standard procedure. If instead the person had acted in the capacity of an international legal scholar, like Julian Mortenson does, this same line of action would be considered improper. A scholar is expected to consider openly the possibility of conferring different meanings on a treaty. He or she is expected to conduct an open-minded assessment of those different possibilities, making allowance for arguments and counter-arguments alike.
Consequently, as I see it, the only appropriate method for Julian to conduct his analysis of the meaning of Articles 31-32 of the VCLT is to assess his preferred interpretation with an open mind to other possible alternatives. Thus, he should have inquired more carefully into (i) the wording of the VCLT, (ii) the organizational structure of Articles 31-32 of the VCLT, and (iii) the general significance and possible ways of reading ILC materials. In so doing, his entire argument would have come out rather differently. For those with a particular interest in issues of treaty interpretation, I have developed this argument in a working paper posted on the SSRN.