Debating the ouroboros of international Law: The drafting history of article 31(3)(c)

International Community Law Review

Volumn 9, Issue 1, 2007, Pages 1-31

  Merkouris, Panos ^a  

^a QUEEN MARY UNIVERSITY OF LONDON   (United Kingdom)

Author keywords

Article 31(3)(c); Fragmentation; International law commission; Interpretation; Law of treaties; Preparatory work; Principle of systematic integration; Travaux preparatoires; Vienna convention on the law of treaties

Indexed keywords

EID: 34547662083     PISSN: 18719740     EISSN: 18719732     Source Type: Journal    
DOI: 10.1163/187197407X196721     Document Type: Review

References (108)

1. Also spelled as oroborus, uroboros and uroborus.
2. As Jörmungandr, one of Loki's (the deity of mischief) sons.
3. The semi-deity, Quetzalcoatl.
4. the dragon circling the tortoise that carries on its shell the four elephants which hold up the world on their backs.
5. The demi-god Aidophedo.
6. And its connotations.
7. Referring to an animal similar to Ouroboros as the first, living thing of the universe, self-sufficient, perfectly constructed and immortal; Plato (Phil.), Timaeus, at 32c-34a.
8. the chemist August Kekulé came to the realization of the structure of benzene through a dream. In this dream he saw a ring in the shape of Ouroboros, which inspired him for adopting this form as a solution to the structure of benzene.
9. In some civilizations it is considered to represent our own galaxy, the "Milky Way".
10. Carl Jung and Erich Neumann dealt with the significance of the Ouroboros symbol for the human psyche,
11. Carl Jung, Collected Works, Vol. 14, para. 513
12. and Erich Neumann , The Origins and History of Consciousness. (Bollington series XLII: Princeton University Press, 1995).
13. e.g. the cyclical nature of life and death, both in man's life as well as in nature or the cyclical nature of creation and destruction as described in Hesiod's works, see also Ludwig Koenen, "Greece, the Near East, and Egypt: Cyclic Destruction in Hesiod and the Catalogue of Women", Transactions of the American Philological Association, Vol. 124, (1994), pp. 1-34.
14. See infra text,
15. and infra note 14.
16. For a more detailed presentation of the various symbolisms of Ouroboros,
17. see Erich Neumann, supra note 10.
18. Pronounced as hen, to pan.
19. Jean Combacau & Serge Sur, "Principe d' Intégration" , in Droit International Public, (Paris: Montchrestien 2004), p. 175;
20. Campbell McLachlan, "The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention", ICLQ, Vol. 54, (2005), pp. 279-320.
21. Hereinafter ILC.
22. hereinafter the VCLT.
23. Grotius had devoted a whole chapter to the question of interpretation, Hugo Grotius, "On Interpretation", in The Law of War and Peace [De Jure Belli ac Pacis], (1625), Book II, Chapter XVI;
24. similarly Vattel, M. de Vattel, The Law of Nations; or Principles on the Law of Nature: Applied to the Conduct and Affairs of Nations and Sovereigns, (London, 1702), B.II, Ch.XVII and more recently the Harvard Research on the Law of treaties.
25. Article 31 (3) (c) goes as follows: "3. There shall be taken into account, together with the context:... c) any relevant rules of international law applicable in the relations between the parties", Vienna Convention on the Law of Treaties, Article 31 (3) (c).
26. Than for instance the discussions at the Institut de Droit International or the Harvard Research on the Law of Treaties.
27. On the one hand Shabtai Rosenne had serious misgivings as to whether the records of the ILC discussions could be considered as travaux préparatoires. These doubts were based on two considerations; firstly "the Commission's reports were rather remote from diplomatic conferences" and secondly, "the members of the Commission did not represent States but acted in their personal capacities". Mr. Rosenne felt that it was possible for a State to have a different understanding at the temporal point when it finally adopted a specific article, see Shabtai Rosenne, UN Doc. A/CN.4/SR.872, para. 35, in YBILC, (1966), Vol. I, Part II, p. 201; On the other hand the Chairman of the Commission held that the discussions of the ILC should be considered as travaux préparatoires. This he based on the fact that since the raison d' être of recourse to travaux préparatoires was to identify the intention of the parties, one had to take into consideration the very documents and discussions which, influenced the will of the plenipotentiary representatives of the States during the Conference. Not only the Commission's drafts but also the records of its meetings were the basis for the discussion in the Conference and it often happened that the artivcles proposed by the ILC were adopted verbatim;
28. see the Chairman, UN Doc. A/CN.4/SR.873 para. 35, in YBILC (1966), Vol. I, Part II, p. 205;
29. An example of the use of the ILC discussions as travaux préparatoires, was put forward by Mr. El-Erian. The ILC discussions offered unique insight on the correct interpretation of Article 24 on the right of passage of warships through the territorial sea, of the 1958 Convention on the Territorial Sea and the Contiguous Zone;
30. see Mr. El-Erian, Shabtai Rosenne, UN Doc. A/CN.4/SR.873, para. 34, in YBILC (1966), Vol. I, Part II, p. 206;
31. Mr. Tunkin although agreeing in principle with the Chairman that the ILC discussions were part and parcel of the notion of travaux préparatoires, raised an issue of the primordiality of one set of discussions over the other. According to Tunkin it was incorrect to try and apply mutatis mutandis processes extracted from municipal law. On the international plane it was the will of the contracting States that was the decisive element, nothing else. Consequently, greater evidentiary weight should be placed on the travaux préparatoires of the Conference itself and less on the discussions of the ILC; UN Doc. A/CN.4/SR.873, para. 26, in YBILC (1966), Vol. I, Part II, p. 205;
32. "I shall not, however, admit the rule.....that the contracts of kings and peoples ought to be interpreted according to Roman law so far as possible, unless (emphasis added) it is apparent that among certain peoples the body of civil law has been received as the law of nations in respect to the matters which concern the law of nations.", Hugo Grotius, "On Interpretation", in The Law of War and Peace [De Jure Belli ac Pacis], (1625), Book II, Chapter XVI, para. XXXI (entitled: the contracts of kings are not to be interpreted according to Roman law).
33. M. de Vattel, The Law of Nations; or Principles on the Law of Nature: Applied to the Conduct and Affairs of Nations and Sovereigns, (London, 1702), B.II, Ch.XVII, para. 284, at p. 235.
34. "Languages vary incessantly and the signification and force of words change with time. When an antiern act is to be interpreted, we should then know the common use of the terms at the time when it was written", M. de Vattel, supra note 23, para. 272, at p. 230.
35. Grotius, supra note 22, para. XIII;
36. M. de Vattel, supra note 23, para. 284, at p. 235.
37. "Appendix 2: David Dudley Field's Draft Code", AJIL, Vol. 29, (1935), pp. 1207-1208.
38. "Appendix 3: Bluntschli's Draft Code", AJIL, Vol. 29, (1935), pp. 1208-1212.
39. Submitted in Rio de Janeiro in 1927; "Appendix 5: Draft of the International Commission of American Jurists", AJIL, Vol. 29, (1935), pp. 1222-1224.
40. Adopted by the Sixth International Conference of American States at Havana, February 20, 1928, "Appendix 1: Convention on Treaties", AJIL, Vol. 29, (193.5), pp. 1205-1207.
41. "[a]mbiguity may be eliminated by referring to stipulations of another treaty relating to analogous matters between the same parties", in "Appendix 4: Fiore's Draft Code", AJIL, Vol. 29, (1935), para. 816, at p. 1219.
42. Submitted by the Seventh International Conference of American States in 1933 and the relevant part of which stated in Article 4 that "[i]n case the real will of the parties cannot be determined, it will be understood that the parties have wished to adjust their stipulations in accordance with the established rules of International Law", in "Appendix 7: The Interpretation of Treaties", AJIL, Vol. 29, (1935), Article 4, p. 1226.
43. Article 19 (a) went as follows: "... and the conditions prevailing a the time interpretation is being made, are to be considered in connection with the general purpose which the treaty is intended", in "Draft Convention on the Law of Treaties", AJTL, Vol. 29, (1935), Article 19, p. 661.
44. Spanning over a period of six years.
45. The sessions were the following: Bath Session, 1950, Sienna Session, 1952, Aix-en-Provence Session, 1954 and finally, Grenada Session, 1956.
46. According to ancient Greek mythology Discord, a lower deity, enraged because she was not invited to a wedding, threw an apple among the tables of the banquet with the engraving "to the most beautiful". Aphrodite, Athena and Hera fought over it and Pares was, finally, called to adjudicate. The latter offered the apple to Aphrodite, who had promised him Helen of Troy. Thus, the apple of Discord became the symbol of objects over which, long-lasting feuds are fought with, in most cases, catastrophic consequences.
47. For instance there was little debate on the issue of intertemporality, that would later on dominate the discussions in the ILC.
48. Especially the issues with regards to hierarchy of potential interpretative rules and die importance of the travaux ré paratoires would follow the evolutive process of the rules not only up to their drafting but even long after the signing, ratification and entering into force of the VCLT.
49. In a report that spans 69 pages and covers almost all major interpretative theories, no reference to this issue is to be found, see, H.Lauterpacht, "De l' Interprétation des Traités", Annuaire de l' Institut de Droit International, Session de Bath, Tome I, (1950), pp. 366-434.
50. (emphasis added). 40) according to him.
51. A. von Verdross, "De l' Interprétation des Traités", Annuaire de l' Institut de Droit International, Session de Bath, Tome I, (1950), p. 455.
52. The fact, that it was Verdross, that brought forth this issue, should probably not come as a complete surprise, bearing in mind, that already in 1935 he had delivered a course in the Hague Academy of International Law on that subject, see A. von Verdross, "Les Principes Généraux du Droit dans la Jurisprudence Internationale", Recueil des Cours, (1935), Tome 52-II, pp. 191-251.
53. Hereinafter PCIJ.
54. Case Concerning Certain German Interests in Polish Upper Silesia, (Germany/Poland), Judgment on Merits, PCIJ, 1926, Series A, No. 7, p. 22;
55. Case Concerning the Factory at Chorzów, (judgment on jurisdiction, (Germany/Poland), PCIJ, 1927, Series A, No. 9, p. 27.
56. Hereinafter ICJ.
57. Case Relating to the Territorial Jurisdiction of the International Commission of the River Oder, (U.K, Czechoslovakia, Denmark, Germany & Sweden/Poland), Judgment, PCIJ, 1929, Series A, No. 23, p. 26;
58. and A. von Verdross, supra note 41, p. 456.
59. No one else up to this point had touched upon this subject.
60. And not a "fictitious one".
61. Max Huber, "De l' Interprétation des Traités", Annuaire de l' Institut de Droit International, Session de Sienne, Tome I, (1952), p. 215.
62. An approach, from which the ILC later deviated by setting in the center the text itself, see infra Part IV;
63. Hersch Lauterpacht, "De l' Interprétation des Traités", Annuaire de l' Institut de Droit International, Session de Sienne, Tome I, (1952), p. 217.
64. This in hindsight would have been a much more progressive line than the one finally adopted by the majority of the members of the Institut.
65. Via the common practice of using brackets, connoting the possible variations of a certain term or expression.
66. The two formulas are the following: "... must be interpreted" and "It is permissible to interpret".
67. Hersch Lauterpacht, "De 1' Interpretation des Traités", Annuaire de l' Institut de Droit International, Session de Sienne, Tome II, (1952), p. 365.
68. From what one can gather from the dicta of the people that took the floor in the ensuing discussions, in the sessions from 1952 to 1956.
69. Again here we note, that the term used is "general principles", not "customary international law", nor "general international law".
70. Rousseau, "De l' Interprétation des Traités", Annuaire de l' Institut de Droit International, Session de Sienne, Tome II (1952), p. 378.
71. Guggenheim, "De l' Interprétation des Traités", Annuaire de l' Institut de Droit International, Session de Sienne, Tome II, (1952), pp. 384 and 404-405.
72. Rolin, "De 1' Interprétation des Traités", Annuaire de 1' Institut de Droit International, Session de Sienne, Tome II, (1952), p. 386.
73. Similarly Sir McNair considered this reference as, purely and simply, redundant, Sir Arnold McNair, "De l' Interprétation des Traités", Annuaire de l' Institut de Droit International, Session de Sienne, Tome II, (1952), p. 404.
74. Basdevant, "De l' Interprétation des Traités", Annuaire de l' Institut de Droit International, Session de Sienne, Tome II, (1952), p. 387;
75. Kaeckenbeeck, was also of the opinion that no reference to general principles should be made, albeit for different reasons. Drawing from his experience as President of the Arbitral Tribunal for High Silesia, he stated that these principles were commonly used by the parties to put a break to progressive interpretations of the clauses in question. See Kaeckenbeeck, "De l' Interprétation des Traités", Annuaire de 1' Institut de Droit International, Session de Sienne, Tome II, (1952), p. 385;
76. However, it is exactly this need for unification and progressiveness that 31(3)(c), is nowadays called upon to address. Therefore, Kaeckenbeeck's argument is actually reversed on its head.
77. "De l' Interprétation des Traités", Annuaire de 1' Institut de Droit International, Session de Sienne, Tome II, (1952), p. 384.
78. Both Lauterpacht and Basdevant, submitted that although this rule did not seem to offer much to the project, it nevertheless was not completely without merit and therefore should be retained, Hersch Lauterpacht & Basdevant, "De 1' Interprétation des Traités", Annuaire de 1' Institut de Droit International, Session de Sienne, Tome II, (1952), p. 405;
79. According to Basdevant one can not compartmentalize in abstracto the juridical environment in which the treaty finds itself placed, and that environment is formed, by the rules of law, part of which form the general principles of international law, Basdevant, "De l' Interprétation des Traités", Annuaire de l' Institut de Droit International, Session de Sienne, Tome II, (1952), p. 405.
80. Hersch .Lauterpacht, "De l' Interprétation des Traités", Annuaire de l' Institut de Droit International, Session de Sienne, Tome II, (1952), p. 405.
81. A dispute between two states regarding whether the term "territory" covers "territorial waters" as well.
82. Which up to this point, is marked by a complete absence of any mention.
83. Aegean Sea Continental Shelf Case, (Greece/Turkey), Judgment of 19 December 1978 on jurisdiction, ICJ Rep. 1.978, pp. 3 et seq.
84. alongside "context" and "good faith".
85. Hersch Lauterpacht, "De l' Interprétation des Traités", Annuaire de l' Institut de Droit International, Session de Aix-en-Provence, Tome I, (1954), p. 225.
86. and probably attributable to the opinions of the Rapporteur himself
87. Jessup & Liang, "De l' Interprétation des Traités", Annuaire de l' Institut de Droit International, Session de Grenade, (1956), pp. 330-331 and 332 respectively.
88. Sir Gerald Fitzmaurice, "De 1' Interprétation des Traités", Annuaire de l' Institut de Droit International, Session de Grenade, 1956, p. 332.
89. Badawi, "De 1' Interprétation des Traités", Annuaire de 1' Institut de Droit International, Session de Grenade, (1956), p. 333.
90. Basdevant, "De l' Interprétation des Traités", Annuaire de l' Institut de Droit International, Session de Grenade, (1956), p. 336.
91. However, Basdevant was in agreement that a reference to "general principles of international law" should exist, an opinion he had already expressed in the Sienna Session, see supra notes 62 and 64 and acoompanying text.
92. Nor for that matter to "good faith", see "De 1' Interprétation des Traités", Annuaire de 1' Institut de Droit International, Session de Grenade, (1956), pp. 337-338.
93. Sir Gerald Fitzmaurice, "De 1' Interprétation des Traités", Annuaire de l' Institut de Droit International, Session de Grenade, (1956), pp. 338.
94. Idem.
95. a similar idea albeit in a more simplified form had been expressed by Rolin in the Sienna Session, see supra note 60.
96. The notion of unity is one of the essential symbolisms of the Ouroboros.
97. This was inscribed in the most famous representation of Ouroboros, included in "The Chrysopoeia of Cleopatra", see supra Prolegomenon.
98. Jenks, Jessup, Hambro, van Asbeck and Basdevant took the floor to argue that the "general principles of international law" should be retained in the text of the final Resolution of the Institut. Jenks, jessup, Hambro, van Asbeck & Basdevant, "De 1' Interprétation des Traités", Annuaire de 1' Institut de Droit International, Session de Grenade, (1956), pp. 341, 342, 343, 343 and 344 respectively.
99. of special importance are the remarks of van Asbeck and Basdevant; the first acknowledged that the lack of "unity of vision and conception within the international community" might dictate the importance of relying on the text, but that should not mean ipso facto that all other principles of interpretation should, be discarded, especially the "general principles of international law". However, this lack of unity might be reversing itself in an international community aware of the pitfalls of fragmentation, and that might in some way explain the rise of the use of Article 31 (3)(c) by international judicial bodies; the second, Basdevant, identified the potential importance of these principles by reference to Lauterpacht's example of the notion of "territory", during the Siena Session, see supra note 65.
100. Guggenheim, supra note 59.
101. Rolin, supra note 60.
102. Rousseau & Kaeckenbeeck, supra notes 58 & 62, respectively.
103. Lord McNair, supra note 61.
104. supra note 46 and accompanying text.
105. This, however, is probably due to the fact that this particular issue had not yet been identified in its whole complexity both by the academic community as well as the international judicial institutions.
106. It is, however, interesting to note that a few years after the conclusion of the Vienna Conference on the Law of Treaties the Institut de Droit International decided to address the issue of intertemporal law, by itself, and actually, during the Session of Wiesbaden, in 1975, adopted a Resolution on "The Intertemporal Law Problem in Public International law". This resolution, addressed the problems of intertemporality as a self-standing issue, and not solely as a problem of the interpretative process; The resolution is available at http://www.idi-iil.org/idiE/resolutionsE/1975_wies_01_en.pdf (last visited 01 March 2007).
107. Even this issue was debated i.e. whether one should talk about rules or of principles of international law, the former being of a more rigid character the latter of a more normative and ergo of a more flexible nature; for a more detailed analysis of this debate see supra Parts III-B & III-C.
108. In Bath, Sienna, Aix-en-Provence and Grenada respectively.