In association with the International Commission of Jurists

General

06 Feb

[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.
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05 Feb

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...

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05 Feb

[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...

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05 Feb

[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.
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05 Feb

[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...

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03 Feb

Your weekly selection of international law and international relations headlines from around the world: Africa Sudan's government has suspended the activities of the International Committee of the Red Cross in the country. The African Union has urged its members to "speak with one voice" against criminal proceedings at the International Criminal Court against sitting presidents. International forces in the Central African Republic have retaken...

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02 Feb

Warmest congratulations to OJ's very own Julian Ku, on his election to ALI - the American Law Institute.  (For those unfamiliar with ALI and its work, this is a great honor in the American legal profession.  Among other things, it produces the Restatements of Law, as well as model codes and annotated commentaries and "Principles" on various legal topics.)...

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01 Feb

It is hard for many of us to believe it is already February, but as things go, the world keeps turning we keep blogging! Here's a look at what happened this week on Opinio Juris: We had posts from Julian on the media's coverage of the Amanda Knox trial (and his prolific media presence!) and a reminder for the extended deadline...

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29 Jan

I recently wrote a post that described the virtues of international lawyers thinking about the future and having an international law analog to “design fiction.” The main point being we as international lawyers are often so focused on historical examples, issues, and analogies that we need to spend more time considering the technological changes that are upon us and changing...

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28 Jan

I'm pleased to flag the fact that the American Journal of International Law has recently launched its own blog -- AJIL Unbound.  Interested readers can find out more about the project and the Journal's interest in reader feedback here.  In the meantime, AJIL Unbound is currently hosting an on-line discussion of the U.S. Supreme Court’s decision in Kiobel v. Royal Dutch...

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28 Jan

[Jonathan Hafetz is an Associate Professor of Law at Seton Hall University School of Law. This post is written as a comment to Stuart Ford's guest post, published yesterday.]

Stuart Ford’s article, Complexity and Efficiency at International Criminal Courts, seeks to address the common misperception that international criminal trials are not only expensive, but also inefficient.  Professor Ford’s article focuses principally on the International Criminal Tribunal for the Former Yugoslavia (ICTY), which, in terms of the total number of accused, is the largest international criminal tribunal in history.  Professor Ford seeks to measure whether the ICTY has, in effect, provided good bang for the buck.  He concludes, rightly I believe, that it has.    Although his primary aim is to develop a way for measuring a tribunal’s efficiency, Professor Ford’s article also has important implications for broader debates about the merits of international criminal justice.

Professor Ford defines efficiency as the complexity of a trial divided by its cost.  While trials at the ICTY often have been long and expensive, they have also been relatively efficient given their complexity.   Further, the ICTY preforms relatively well compared to other trials of similar complexity, such as terrorism trials conducted in the United States and Europe, as well as trials that are somewhat less complex, such as the average U.S. death penalty case.   Garden-variety domestic murder trials, which at first blush might appear more efficient than the ICTY,  do not provide a useful point of comparison because they are much more straightforward.

Once complexity is factored in, the ICTY appears comparatively efficient.  Its record is more impressive considering that an often recognized goal of international criminal justice—creating a historical record of mass atrocities—can make the trials slower and less efficient in terms of reaching outcomes for specific defendants.

Professor Ford also finds that the ICTY performed more efficiently than the Special Court for Sierra Leone (SCSL), thus challenging a perceived advantage of such hybrid tribunals over ad hoc tribunals like the ICTY.  His conclusion suggests the need for future research on comparisons among tribunals within the international criminal justice field, which might have implications from an institutional design perspective.

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