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Assessing the UN’s new “Rights Up Front” Action Plan

by Kristen Boon

In December 2013, the UN Secretary General launched a new Human Rights initiative called “Rights Up Front”.    Primarily a coordination tool for the UN Secretariat, the plan outlines six actions that can help the UN system meet its responsibilities regarding human rights:

Action 1: Integrating human rights into the lifeblood of staff, so that they understand what the UN’s mandates and commitments to human rights mean for their Department, Agency, Fund or Program and for them personally.

Action 2: Providing Member States with candid information with respect to peoples at risk of, or subject to, serious violations of international human rights or humanitarian law.

Action 3: Ensuring coherent strategies of action on the ground and leveraging the UN System’s capacities in a concerted manner.

Action 4: Adopting at Headquarters a “One-UN approach” to facilitate early coordinated action.

Action 5: Achieving, through better analysis, greater impact in the UN’s human rights protection work.

Action 6: Supporting all these activities through an improved system of information management on serious violations of human rights and humanitarian law.

The catalyst of Rights Up Front was the Petrie Report of 2012, an independent review panel report commissioned by the Secretary General and written by Charles Petrie, which assessed the UN’s response to the final months of the 2009 war in Sri Lanka.   The report was extraordinarily critical of the UN, characterizing its actions as a “systematic failure.”  It recommended “a comprehensive review of action by the United Nations system during the war in Sri Lanka and the aftermath, regarding the implementation of its humanitarian and protection mandates.”

To his credit, the Secretary General Ban Ki Moon took this charge seriously.    The Rights up Front plan represents the end product of internal assessment and reflection.   While it is too early to give a definitive assessment of the plan’s potential, some features are worthy of comment now.   The plan is noteworthy in identifying the protection of human rights as a core purpose of the United Nations, consistent with the UN Charter.  It also creates a human rights plan for the UN Secretariat in situations where there is no peacekeeping mission.   This is an important development: the plan recognizes the failure of early-warning systems that contributed to the Rwandan genocide and the Srebenica massacre. Moreover, Deputy Secretary General Jan Eliasson, in presenting the report, indicated that systematic human rights violations have often been a precursor to mass atrocities, and that the challenges facing the UN in Sri Lanka were not new.

Although the action plan refers to UN responsibilities (a term with legal connotations), the main responsibility it addresses lies with the Secretariat.    Clearly the plan would have been stronger had it staked out a legal responsibility for the UN.   When the Secretary General presented the plan he emphasized the UN’s political and moral obligations, but not its legal responsibilities.     Compare, for example, the UN’s position on humanitarian law, and its guidelines for UN troops, which state that they must respect and observe the rules of international humanitarian law or face prosecution.

In addition, while emphasizing the Secretariat’s coordinating role, conspicuously absent from the Plan are references to the responsibility of important organs like the Security Council and the General Assembly.    Because the plan is so heavily focused on the Secretariat, Rights Up Front appears to have little to no role in situations where the Security Council or the General Assembly are engaged.  Take the current humanitarian crisis in Syria.   Here, the Secretariat’s role is limited because the situation has been escalated to the Security Council, the organ with primary responsibility for threats to international peace and security.   Due to the Council’s involvement, the Secretariat’s role limited.  The potential impact of the Rights up Front plan does not, therefore, overcome cases of Council deadlock despite the evidence of massive human rights abuses.

Another interesting silence in the Rights Up Front plan is its relationship with the Responsibility to Protect (R2P).    There are clear parallels between the two doctrines with regards to the duty to prevent human rights abuses.   Pillar 2 of R2P, for example, states that the international community has a duty to assist states in meeting these obligations.   Rights up Front could be a way to implement Pillar 2.   Nonetheless, there is no explicit acknowledgement of this overlap, or explanation of how these doctrines work together.

In the final analysis this Plan represents an important step forward for human rights at the UN.  If Rights Up Front is systematically integrated into the Secretariat’s work, and becomes a basis for auditing and review, it may succeed in making human rights a much more central aspect of the UN’s work. Nonetheless, its limited scope, due to its focus on the Secretariat and its avoidance of legal obligations, mean that whether it is capable of delivering real world impact remains to be seen.

Now That’s a Broad Reading of the Jus Ad Bellum!

by Kevin Jon Heller

The European Parliament has just overwhelmingly passed a resolution condemning the use of armed drones. I’ll leave it to others to do the hard work of analyzing the resolution, but I couldn’t let this paragraph pass without a mention (emphasis mine):

E. whereas drone strikes outside a declared war by a state on the territory of another state without the consent of the latter or of the UN Security Council constitute a violation of international law and of the territorial integrity and sovereignty of that country.

The last time a state formally declared war was 8 August 1945, when Russia declared war on Japan. So much for Art. 51 of the UN Charter…

Japan and Korea Take Their (History) Wars to U.S. State and Local Legislatures

by Julian Ku

A lawsuit filed yesterday in California federal court seeks the removal of a statue in a Glendale, California public park honoring women victimized by the Japanese military during World War II.  The placement of the statue was approved by the local city council with the strong support of Korean and Korean-Americans who want to recognize the suffering of the “comfort women”. The lawsuit appears to claim as one of its arguments that the local city council is interfering in national foreign affairs in violation of the US Constitution.

This lawsuit is only the latest front in a spreading battle between Korean and Korean-American groups and the Japanese government in various state and local legislatures.  In Virginia, the state legislature (again with strong Korean-American voters support) passed legislation requiring textbooks in public schools to note that the Sea of Japan is also called the “East Sea.”  New Jersey is considering similar legislation, and already has its own “comfort women” memorial.

As a legal matter, I can say with high confidence there is no serious argument that the placement of a statue in a public park, or the rewording of textbooks, violates the federal government’s foreign affairs authority under the Constitution.  No legal rights of foreign nationals are involved, nor is this a matter traditionally handled by the national government, nor does the US-Japan Treaty of Peace preempt this action.  So this aspect of the anti-memorial folks’ lawsuit seems pretty hopeless and borderline frivolous.

I am less sure about the policy benefits of this type of activity.  For US legislators this is just a cheap and easy way to get support from a growing voter population.  China’s government has tried a similar strategy to garner Korean friendship on a much grander scale when it put up a huge memorial to a early-twentieth-century Korean anti-Japanese revolutionary.  But those actions are purely out of self-interest.

On the other hand, all of this seems like a relatively gentle way to prod the Japanese on these issues.   In any event, expect to see more action at the state and local level in the U.S. One hopes (although this seems a vain hope) that this activity might even spark some useful Korean-Japanese debate on matters that they can’t seem to talk about much back in Asia.

The Cossacks: A Legal Primer

by Chris Borgen

The recent altercation between members of Pussy Riot and Cossack militia that was caught on video is a red flag signalling a broader issue in the Russian Federation: the resurgent power of the Cossacks and their relation to the Russian state, especially to keep politically-disfavored groups in check.

But who are the Cossacks?  A paramilitary organization? A political party? An ethnic group? And what are they doing at the Sochi Olympics?  This post will try to explain a little about who the Cossacks are, their role in Russia today, and the legal implications for human rights, minority rights in particular, and the use of state power.

The word “Cossack” summons for many images of mustachioed horsemen with bearskin hats. But, as one CNN report put it, “the Cossacks have long symbolized rebellion and military might in Western and Southern Russia and Ukraine.” Today’s Cossack organizations provide contracted-for security services for Russian regional governments.  Aleksandr Tkachev, the governor of Russia’s Krasnodar region, in which Sochi is located, has been at the forefront of contracting with the Cossacks (although, as I’ll explain below, this has been supported from the Presidency on down). About 400 Cossacks are being used as security in Sochi. But this is just the tip of the iceberg.

As for the utility of  having Cossacks–a non-state (or perhaps quasi-governmental) entity–provide security services, the official line seems to be that Cossacks will have greater leeway for action. CNN again:

“What you cannot do, a Cossack can,” Krasnodar Gov. Aleksandr Tkachev explained to local police.

His comments sparked an outcry from Sochi natives, minorities and migrants. Analysts say it is not a coincidence that the Cossacks’ revival is taking place as nationalism and xenophobia are on the rise in Russia.

[Emphasis added.]

The Pussy Riot incident in Sochi is simply the most obvious example of a larger trend that could have important implications for the rule of law in Russia and in former Soviet republics. But before looking at the current situation in greater detail, some history and context is needed…

(Continue Reading)

Ukraine: Background, Sanctions, and the Sword of Damocles

by Chris Borgen

The BBC is reporting that dozens of people have died today in new fighting between police and protestors in Ukraine.  For a background to what is underlying the protests, see these posts concerning the struggle over the norms that will define Ukraine,  how Ukraine’s domestic disputes interact with Russian and European regional strategies, and the significance of the eastward spread of the protests and Russia’s technique of push-back against the norm-based arguments of the EU.

Some of these themes are echoed in the BBC report:

Ukraine seems be caught in a modern “Great Game”. Vladimir Putin wants to make Russia a global economic player, rivalling China, the US and EU. To that end he is creating a customs union with other countries and sees Ukraine as a vital and natural element in that – not least because of the countries’ deep cultural and historical ties.

The EU says assimilation and eventual membership could be worth billions of euros to Ukraine, modernising its economy and giving it access to the single market. It also wants to reverse what it sees as damaging infringements on democracy and human rights in Ukraine.

Many Ukrainians in the east, working in heavy industry that supplies Russian markets, are fearful of losing their jobs if Kiev throws in its lot with Brussels. But many in the west want the prosperity and the rule of law they believe the EU would bring. They point out that while Ukraine had a bigger GDP than Poland in 1990, Poland’s economy is now nearly three times larger.

While the immediate issue in the streets of Kiev is an end to the violence, the medium-term Western response may be sanctions against Ukraine, particularly targeting the assets of President Yanukovich and his allies.

But, hanging over all of this like the sword of Damocles is the concern over the stability of the Ukrainian state. The previous Opinio Juris posts, the BBC report linked-to above, and others have noted the sharp electoral and linguistic (Ukraine-speaking/ Russian speaking) divide between western Ukraine and eastern Ukraine. Some have voiced concern that Ukraine faces a possible civil war or a break-up of the country.  Edward Lucas of The Economist has written in an op-ed in today’s (February 20) Telegraph:

Perhaps the authorities will decide that they cannot crush the protesters and will draw back, meaning months of tension, jitters and uncertainty. Even then, Ukraine’s territorial integrity has been shattered, perhaps fatally. In the west, government buildings have been set ablaze. The region – the old Austro-Hungarian Galicia – was the site of a decade-long insurrection post-war against Soviet rule. If pro-Moscow authorities in Kiev try to crack down there, civil war looms…

Equally worrying is Crimea – site of the Charge of the Light Brigade 160 years ago – which could now be the flashpoint for another conflict with Russia, with far more devastating effects. The region is on the verge of declaring independence from Kiev (a move likely to prompt Russian intervention to protect the separatist statelet).

The BBC report sounds a more hopeful note:

Some commentators suggest this shows the country is liable to split violently across the middle. But others say this is unlikely – and that many in the east still identify as Ukrainians, even if they speak Russian.

As I mentioned in my previous post on Ukraine, the answer to the question of whether or not there is civil war or secession, depends in part on what the protestors in the eastern part of the country are protesting about.  If they are willing to continue on the path to closer integration with the EU and set aside closer integration with Russia, then the strand of hair keeps the sword suspended. If the Ukrainians in the east just want Yanukovich out, but still want to avert integration with the EU and increase integration with Russia, then the strand doesn’t necessarily break, but it does fray, as the normative conflict over the future of Ukraine will persist.

But while the question of civil war and secession depends in part on the severity of normative friction in Ukraine, that is not the only determinant. Also important is what role Russia will play in either further exacerbating the conflict or finding a peaceful solution. In September, Russia raised the specter of secessionism in Ukraine, specifically linking it to Ukraine’s signing the EU Association Agreement. Russia actively supports secessionist movements in Moldova and Georgia, two other countries seeking closer relations with the EU. Whether President Putin believes that preventing Ukraine from  signing an Association Agreement with the EU is important enough to push that country to war remains to be seen.

The issue for today is ending the violence in the streets of Kiev. But that is the first step in a long road to finding stability in Ukraine.

2014 ASIL Certificates of Merit Announced

by Duncan Hollis

I had the great pleasure the last several months to serve on ASIL’s Book Awards Committee (along with Jutta Brunnée, Jean d’Aspremont, Saira Mohamed, and a very well organized chair in Jacob Cogan).  I’m pleased to announce that the Society’s Executive Council has selected three winners for 2014 based on our nominations.  The winners (plus the Committee’s accompanying citation) are as follows:

Certificate of Merit for a Preeminent Contribution to Creative Scholarship:  Ryan Goodman and Derek Jinks, Socializing States: Promoting Human Rights through International Law (Oxford University Press 2013).

In Socializing States: Promoting Human Rights Through International Law, Ryan Goodman and Derek Jinks offer a groundbreaking theory of acculturation that illuminates how social processes can promote human rights and, more generally, can influence norms. “Acculturation” refers to “the general process by which actors adopt the beliefs and behavioral patterns of the surrounding culture.” The authors distinguish acculturation from two other mechanisms of social influence: “material inducement,” or the offering of rewards for conformity or punishments for nonconformity with a state’s or institution’s demands, and “persuasion,” whereby actors internalize new norms through a process of social learning and “redefine their interests and identities accordingly.” Goodman and Jinks offer a sophisticated account that both defends the relevance of acculturation and acknowledges its weaknesses in some areas. The theoretical complexity and methodological rigor of Socializing States make this a book that should be studied by any scholar interested in promotion of human rights, the spread of global norms, regime design, or compliance. It has already changed scholarship in these areas and will certainly continue to influence the field in the years to come.

Certificate of Merit for High Technical Craftsmanship and Utility to Practicing Lawyers and Scholars:  Robert Kolb, The International Court of Justice (Hart Publishing 2013)

Robert Kolb’s International Court of Justice provides a magisterial, lucid study of its subject. The breadth and depth of the treatment are impressive: Kolb takes the reader from the history of the Court, to its role in international society, to the more technical questions concerning its composition, powers and procedures, to the development of its jurisprudence, and to its future. The finely grained discussion provides much more than a mere survey of the Court’s constitutive instruments and decisions. It engages the Court as an institution and asks how it actually operates, and secures efficacy and authority in doing so. The book’s careful and detailed coverage of the Court’s legal framework and operation will benefit practitioners and scholars alike. There is no doubt that Kolb’s volume immediately takes a place among the authoritative references on the Court.

Certificate of Merit in a Specialized Area of International Law:  Bardo Fassbender and Anne Peters eds., The Oxford Handbook of the History of International Law (Oxford University Press 2012).

The Oxford Handbook of the History of International Law innovatively and comprehensively provides a timely and ambitious global history of international law from the sixteenth century to the mid-twentieth century. Under the skilled editorship of Bardo Fassbender and Anne Peters, the contributors, experts who themselves come from all parts of the world, present a history that imagines international law as the product of different regions, cultures, actors, and eras. Setting a new agenda for the field, the Handboowill be the indispensable starting point for students and researchers exploring the history of international law.

The awards will get presented at this year’s ASIL Gala Dinner.  I’m looking forward to seeing the authors there and having a chance to congratulate them personally on their achievements.

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

by Peter Spiro

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 against. A lot of ad hominem stuff. (To this one, really, I’m not such a bad guy.) Doesn’t everyone know that we academics are supposed to play the role of the court jester, saying things that other people can’t?

On the substantive side, two responses:

1) The seemingly reflexive opposition to eliminating nationality requirements (“I’m not even going to read this piece”) takes no account of athlete interests. If you’re the number three player in China, you’re probably also the number three player in the world, but because of the two-competitor per-country quota in singles table tennis, you don’t get to compete. That seems unfair.

Restrictions on transfer of nationality are in some ways worse. The Olympic Charter requires a three-year cooling-off period when an athlete wants to compete for another country (waivable at the discretion of the country of origin). Sporting federation rules add another layer, sometimes extreme. Soccer and basketball prohibit transfers altogether. Once you’ve played for one country at the international level you cannot play for any other. That looks to me like a human rights problem, a kind of modern-day feudalism.

2) A number of commenters suggest my proposal will lead to corporate teams rather than national ones. I’m not suggesting (for now) that the Olympics abandon the state-based orientation, for team sports at least, just that individual players not be required to have citizenship in the country whose team they’re playing for.

But the role of corporate sponsorship is implicated here. It might be part of the answer. To the extent that the Jamaican bobsled team attracts a lot of attention, corporations should be interested in footing training bills in a way that Jamaica the state may not be. A big part of the charm is that the team is labeled as Jamaican. Corporations will have an interest in backing teams not just from the United States and other big countries. (Here is an example from Sochi involving tiny Tonga, though perhaps not one to be emulated.)

Regardless of nationality rules, we seem to be moving towards corporate sponsorship in any case. Would that be the end of the world? In Korea, baseball teams sport the name of companies not cities (and the fans are astonishingly fanatic). To the extent companies had their name on Olympic scorecards, they might be even more generous with their teams, with athletes and fans as the ultimate beneficiary. But I mean this as a THOUGHT EXPERIMENT ONLY, so please, no need for negative responses below!

For the First Time, U.S. Says China’s South China Sea Nine Dash Line is Inconsistent with International Law

by Julian Ku

As Jeffrey Bader of Brookings notes, the U.S. government has, for the first time, publicly rejected the legality of China’s “Nine Dash Line” claim in the South China Sea (for a little background on the unusual Nine Dash Line, see an earlier post here). This is a semi-big deal as it shows how the US is going to use international law as a sword to challenge China’s actions in this region.

During testimony before Congress, U.S. Assistant Secretary of State for East Asian and Pacific Affairs Daniel Russel stated:

Under international law, maritime claims in the South China Sea must be derived from land features. Any use of the ‘nine-dash line’ by China to claim maritime rights not based on claimed land features would be inconsistent with international law. The international community would welcome China to clarify or adjust its nine-dash line claim to bring it in accordance with the international law of the sea.

It is actually surprising that the U.S. government has never actually publicly stated this argument before, since the Russel statement fits comfortably within the U.S. government’s long-standing positions on the nature of maritime territorial claims.  And China could not have been unaware of US views on its 9-dash-line claim. But the U.S. also likes to repeat that it takes no position on any sovereignty disputes, and since the Nine Dash Line is sort of a sovereignty claim, it has always been a little unclear whether the US was neutral on the Nine-Dash Line as well.

Russel’s statement ends this ambiguity, and also offers more explanation on how the US “neutrality” in sovereignty disputes does not mean that it has no view on how those disputes would be resolved.

I think it is imperative that we be clear about what we mean when the United States says that we take no position on competing claims to sovereignty over disputed land features in the East China and South China Seas. First of all, we do take a strong position with regard to behavior in connection with any claims: we firmly oppose the use of intimidation, coercion or force to assert a territorial claim. Second, we do take a strong position that maritime claims must accord with customary international law.

Again, I can’t imagine this is a new US government position, but it is useful to make it clear publicly.

By tying itself to customary international law, the U.S. is challenging China to try to fit its Nine Dash Line into the legal framework created by the UN Convention on the Law of the Sea.  Even some clarification from China as to the legal basis for its Nine Dash Line would be helpful, since it would shift the burden on China to explain its legal position.

Moreover, the US government is also offering a legal roadmap for other countries that are not claimants in the region. It is hardly a controversial legal position, and should be fairly easy for the EU, Canada, or Australia to adopt (assuming they don’t mind tweaking China).

Having wedded itself to international law, the US will now have to see whether China will start making non-legal claims or even noises about withdrawing from UNCLOS.  The law definitely is not on China’s side here, but that doesn’t mean that China is going to back down in the SCS.

AJIL Symposium: Comment on “The Travaux of Travaux: Is the Vienna Convention Hostile to Drafting History?”

by Richard Gardiner

[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…)

More on the Al Qaeda Name

by Deborah Pearlstein

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 and Greater Syria (ISIS), the most effective of its two franchises fighting in Syria, in a maneuver that could alter the trajectory of the fight against President Bashar Assad. In a message posted on jihadi websites, the al-Qaeda general command stated that its former affiliate “is not a branch of the al-Qaeda group [and al-Qaeda] does not have an organizational relationship with it and is not the group responsible for their actions.”

Evidently not among those trying to keep up with the latest – the U.S. House Foreign Affairs Committee, which today held a hearing entitled: “Al-Qaeda’s Resurgence in Iraq: A Threat to U.S. Interests.”

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

by Ulf Linderfalk

[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.

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

by Ulf Linderfalk

[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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