International legal histories: The declining importance of travaux préparatoires in treaty interpretation?

Netherlands International Law Review

Volumn 50, Issue 3, 2003, Pages 267-288

  Klabbers, Jan ^a  

^a UNIVERSITY OF HELSINKI   (Finland)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84928776119     PISSN: 0165070X     EISSN: 17416191     Source Type: Journal    
DOI: 10.1017/S0165070X03002675     Document Type: Review

References (74)

1. M. Foucault, The Archaeology of Knowledge (London, Routledge 2001, Sheridan Smith transl.) p. 222. Just to show the importance of context, Foucault wrote these words more or less in defense of interpretation and while demonstrating how his approach differs from structuralism. And perhaps to underline that interpretation may not always be consonant with intentions, this is how I understand him.
2. The latter is itself a problematic notion. See J. Klabbers, 'Some Problems Regarding the Object and Purpose of Treaties', 8 FYIL (1997) p. 138.
3. Such an argument is presented by Sir E. Beckett, commenting on H. Lauterpacht's report on interpretation in 43 Annuaire de l'Institut de Droit International (1950-II) p. 435 at p. 444.
4. For an argument along these lines, see S. Fish, 'Working on the Chain Gang: Interpretation in Law and Literature', reproduced in his Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (Oxford, Clarendon Press 1989) p. 87.
5. Teleological interpretation is often advocated in connection with human rights treaties and treaties establishing international organizations. See, e.g., J.G. Merrills, The Development of International Law by the European Court of Human Rights, 2nd edn. (Manchester, Manchester University Press 1993), esp. ch. 4; T. Sato, Evolving Constitutions of International Organizations (The Hague, Kluwer 1996).
6. See Sir H. Lauterpacht, 'De l'lnterpretation des Traités: Rapport', 43 Annuaire de l'Institut de Droit International (1950-II) p. 366, esp. pp. 390-391.
7. He has done so elsewhere, e.g., under the heading 'Preparatory Work in the Interpretation of Treaties'. See E. Lauterpacht, ed., Hersch Lauterpacht. International Law: Collected Papers. Vol. 4: The Law of Peace (Cambridge, Cambridge University Press 1978) p. 450, esp. pp. 509-512. This text first appeared in 48 Recueil des Cours (1934-II).
8. See similarly S. Fish, 'Fish v. Fiss', in his Doing What Comes Naturally, op. cit. n. 5, at pp. 120-140.
9. See H.L.A. Hart, The Concept of Law (Oxford, Clarendon Press 1961), esp. pp. 91-96. Incidentally, Hart did not specifically address rules of interpretation here, but it would stand to reason to presume that he held them to be secondary rules, as rules about primary rules.
10. See, e.g., the Appellate Body's decision of 16 January 2003 in case AB 2002-7, United States - Continued Dumping and Subsidy Offset Act of 2000, esp. para. 276. It is, incidentally, sobering to see how contenders invoked the interpretation rules of the Vienna Convention to support diverging conclusions: the US invoked them to support a textual reading (para. 26), while Canada found support in the reference to a treaty's object and purpose (para. 70).
11. Compare also R. Behboodi, 'Legal Reasoning and the International Law of Trade: The First Steps of the Appellate Body of the WTO', 32 Journal of World Trade (1998/4) p. 55.
12. On some of the differences between EC and WTO, see A. von Bogdandy, 'Law and Politics in the WTO - Strategies to Cope with a Deficient Relationship', 5 Max Planck Yearbook of United Nations Law (2001) p. 609.
13. This is the often-used epigraph with which Aust opens his chapter on interpretation. See A. Aust, Modern Treaty Law and Practice (Cambridge, Cambridge University Press 2000) p. 184.
14. Such a position was defended by Lord McNair, commenting on Lauterpacht's report on interpretation in 43 Annuaire de l'Institut de Droit International (1950-II) p. 448 at p. 449. McNair went on to argue against the use of phrases such as 'sens clair' or 'sens évident', as these would presuppose a beholder and thus automatically be subjective; instead, not entirely devoid of inconsistency perhaps, he preferred to speak of a 'sens naturel' or a 'sens ordinaire' (ibid., at pp. 449-450). McNair's The Law of Treaties (Oxford, Clarendon 1961), however, is a lot more subtle on this topic; see esp. ch. XX.
15. See generally the essays in Fish, op. cit. n. 5.
16. This, incidentally, also underlies the entire discussion on the possibility of creating instruments that bind states but do not bind them under international law. See generally J. Klabbers, The Concept of Treaty in International Law (Kluwer, The Hague 1996).
17. Case C-162/96, A. Racke GmbH & Co. v. Hauptzollamt Mainz [1998] ECR I-3655.
18. Not necessarily of the finding as such, though. See, e.g., J. Klabbers, 'Re-inventing the Law of Treaties: The Contribution of the EC Courts', 30 NYIL (1999) p. 45.
19. So, e.g., Aust, op. cit. n. 18, at pp. 241-242.
20. J.L. Brierly, 'Reservations to Multilateral Conventions', ILC Yearbook (1951-II) p. 1.
21. See also the 1977 Anglo-French Continental Shelf arbitration (esp. para. 61), which ended up precariously balancing a French reservation with the British objection thereto. The award is reproduced in 18 ILM (1979) p. 397.
22. See, e.g., J.K. Koh, 'Reservations to Multilateral Treaties: How International Legal Doctrine Reflects World Vision', 23 Harv. ILJ (1982) p. 71; J. Klabbers, 'Accepting the Unacceptable: A New Nordic Approach to Reservations', 69 Nordic JIL (2000) p. 179.
23. At the time of writing (May 2003), the ILC is engaged in the drafting of guidelines relating to reservations. See, e.g., UN Doc. A/CN.4/L.360 of 12 May 2003.
24. For a brilliant analysis of the move to interpretation in legal scholarship generally, see D. Kennedy, 'The Turn to Interpretation', 58 Southern California L Rev. (1985) p. 251.
25. See S. Rosenne, Breach of Treaty (Cambridge, Grotius 1985) p. 121.
26. See Sir G. Fitzmaurice, 'Fourth Report on the Law of Treaties', ILC Yearbook (1959-II) p. 37 at pp. 79-80, under the innocuous heading of 'Miscellaneous particular questions of treaty application'.
27. He did of course write on interpretation in a different capacity, in particular in various issues of the British Yearbook of International Law. These have later conveniently been published in two volumes as Sir G. Fitzmaurice, The Law and Procedure of the International Court of Justice (Cambridge, Grotius 1986).
28. See Sir H. Waldock, 'First Report on the Law of Treaties', ILC Yearbook (1962-II) p. 27 at pp. 73-80.
29. He appeared to think that such a move would only marginally be better than to have no rules on interpretation whatsoever; see Sir H. Waldock, 'Third Report on the Law of Treaties', ILC Yearbook (1964-II) p. 5 at p. 54. As far as rhetorics goes, it is perhaps telling that he started his commentary by referring to attitudes critical of the possibility of capturing interpretation in comprehensive rules (ibid., at p. 53).
30. Those discussions took place during the 765th, 766th and 767th meetings of the ILC. See ILC Yearbook (1964-I) pp. 275-291.
31. McDougal's statement is conveniently reproduced in 62 AJIL (1968) p. 1021.
32. For a brief overview of the discussion, see M.K. Yasseen, 'L'Interprétation des Traités d'après la Convention de Vienne sur le Droit des Traités", 151 Recueil des Cours (1976-III) p. 1 at pp. 86-88.
33. Note also the nuanced position on travaux préparatoires submitted to the Institut de Droit International in response to Lauterpacht's report, op. cit. n. 19, at pp. 451-452.
34. See Lord McNair, The Law of Treaties, op. cit. n. 19, at p. 411.
35. The Commentary is contained in the ILC's report to the General Assembly, ILC Yearbook (1966-II) p. 173 at p. 223.
36. Waldock's third report, op. cit. n. 35, at p. 58.
37. The characterization is largely Lauterpacht's: interpreting a treaty without looking at its drafting history amounts to 'adopter la méthode de la "Begriffsjurisprudenz"', Lauterpacht, op. cit. n. 8, at p. 397.
38. Lauterpacht would later find himself supported by the US delegation at the 1968 Vienna Conference: supra n. 42.
39. Lauterpacht, op. cit. n. 8, at p. 397.
40. Lauterpacht put it starkly: 'Le "sens ordinaire" ne saurait, au mieux, être traité autrement qu'une présomption juris tantum, qui peut etre renversée. Mais il ne foudrait jamais le considérer comme une présomption irréfutable.' Ibid., at p. 389. On the links between Lauterpacht's thoughts on interpretation and his general outlook, see M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (Cambridge, Cambridge University Press 2002), esp. at p. 357.
41. Lauterpacht, op. cit. n. 8, at p. 392.
42. See similarly Sir G. Fitzmaurice, The Law and procedure of the International Court of Justice, Vol. I (Cambridge, Grotius 1986) p. 47.
43. So the ILC in its 1966 Commentary, op. cit. n. 46, at p. 223.
44. Compare his remarks in his report to the Institut, op. cit. n. 8, at p. 402.
45. See E. Lauterpacht, op. cit. n. 9, at p. 449. Fitzmaurice reaches a similar conclusion in his discussion of Lauterpacht's work: Lauterpacht's preference for drafting histories was partly a reaction against over-rigid application of the textual approach. See Sir G. Fitzmaurice, The Law and Procedure of the International Court of Justice, Volume II (Cambridge, Grotius 1986) p. 793.
46. See Lauterpacht, op. cit. n. 9, at p. 505.
47. ILC Commentary, op. cit. n. 46, at p. 223. This is, of course, a more general problem in drafting. See, e.g., M. Koskenniemi, '"The Lady Doth Protest Too Much": Kosovo, and the Turn to Ethics in International Law', 65 Modern L Rev. (2002) p. 159.
48. Thus, e.g., in a slightly different context, K. Widdows, 'What is an Agreement in International Law?', 50 BYIL (1979) p. 117. The ICJ, in its first decision in Qatar v. Bahrain, had no qualms about dismissing a statement made by Bahrain's Foreign Minister as to his intent. See Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Jurisdiction and Admissibility, ICJ Rep. (1994) p. 112, para. 27.
49. In this manner Van Dijk excludes a number of statements surrounding the Helsinki Final Act. See P. van Dijk, 'The Final Act of Helsinki - Basis for a Pan-European System?', 11 NYIL (1980) p. 97 at p. 110.
50. With some of the amending treaties, some of the preparatory work has found publication, sometimes upon more or less private initiative. See, e.g., R. Corbett, The Treaty of Maastricht (London, Longman 1993).
51. See in particular Case 26/62, Van Gend & Loos v. Nederlandse Administratie der Belastingen [1963] ECR 1.
52. Case 294/83, Parti Ecologiste 'Les Verts' v. European Parliament [1986] ECR 1339. Something similar had already been suggested in the literature; see E. Stein, 'Lawyers, Judges, and the Making of a Transnational Constitution', 75 AJIL (1981) p. 1.
53. The PCIJ subscribed to such a democracy-based argument in the Oder Commission case, supra n. 61.
54. The leading example is I. Brownlie, Principles of Public International Law, 5th edn. (Oxford, Oxford University Press 1998).
55. See, e.g., M. Shaw, International Law, 3rd edn. (Cambridge, Cambridge University Press 1991), whose opening chapter combines history and theory, such as it is, under the heading 'The Nature and Development of International Law'. Malanczuk too brings the two together in a single chapter entitled simply 'History and Theory'. See P. Malanczuk, Akehurst's Modern Introduction to International Law, 7th edn. (London, Routledge 1997). And lest I be accused of being the pot calling the kettle black, the second chapter of J. Klabbers, An Introduction to International Institutional Law (Cambridge, Cambridge University Press 2002) is similar in organization, even though, I like to think, it does manage to keep history and theory somewhat separate.
56. For one example among many, see L. Sunga, Individual Responsibility in International Law for Serious Human Rights Violations (Dordrecht, Kluwer 1992).
57. It is no coincidence that Willis's fine study of the prosecution of war criminals after the First World War is styled as a prelude to the Nuremberg trials. See J.F. Willis, Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First World War (Westport, CT, Greenwood Press 1982). The argument that Nuremberg was the culmination of a historical trend is made explicitly by R. Woetzel, The Nuremberg Trial in International Law (London, Stevens & Sons 1962).
58. Note, e.g., how the International Court of Justice in LaGrand analyzes the preparatory work of its own Statute in order to point out that it 'does not preclude' the conclusion the Court had also reached through other means: see LaGrand Case (Germany v. USA), decision of 27 June 2001, paras. 104-107. See also, briefly, S.M. Schwebel, 'May Preparatory Work Be Used to Correct Rather Than Confirm the "Clear" Meaning of a Treaty Provision?', in J. Makarczyk, ed., Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Krzysztof Skubiszewski (The Hague, Kluwer 1996) p. 541.
59. A fine recent illustration of how historical materials can be used in non-conservative ways is K. Knop, Diversity and Self-determination in International Law (Cambridge, Cambridge University Press 2002).
60. See Ph. Allott, 'The Concept of International Law', 10 EJIL (1999) p. 31 at p. 43.
61. Some of the problems relating to intention in the conclusion of treaties are discussed in Klabbers, op. cit. n. 21, at ch. 3.
62. See, e.g., L. Wittgenstein, Philosophical Investigations (Oxford, Blackwell 1953) para. 29.
63. Fish has written at least two volumes of essays in which this is one of the running themes. See Fish, op. cit. n. 5, and S. Fish, There's No Such Thing As Free Speech, And It's a Good Thing Too (Oxford, Clarendon Press 1994). For an adaptation of Fish's thought to international law, see I. Johnstone, 'Treaty Interpretation: The Authority of Interpretive Communities', 12 Mich. JIL (1991) p. 371.
64. Under Art. 31, para. 2, the context is deemed to consist predominantly of collateral agreements or instruments; these may, but need not necessarily, themselves be part of the travaux préparatoires.
65. Which may precisely be why some advocate its use. So, e.g., Degan, for whom interpretation is 'une opération logique, très compliquée, qui est fondée sur la logique, l'équité et la bonne foi, c'est-àdire sur des catégories extra-juridiques'. See V.D. Degan, L'Interprétation des Accords en Droit International (The Hague, Martinus Nijhoff 1963) p. 163.
66. See M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Helsinki, Finnish Lawyers' Publishing Company 1989) p. 295.
67. See, e.g., classics such as Foucault, op. cit. n. 2, and K. Jenkins, Re-thinking History (London, Routledge 2001 (1991)).
68. This was generally Foucault's problem with history (or historiography perhaps). See Foucault, op. cit. n. 2, e.g., at p. 223: '... the essential task was to free the history of thought from its subjection to transcendence'.
69. Toulmin observes that lawyers typically are interested in case studies rather than grand narratives, which would indicate much the same thing. See S. Toulmin, Cosmopolis: The Hidden Agenda of Modernity (Chicago, University of Chicago Press 1990). On the other hand, it is not uncommon for lawyers to reach grand conclusions on the basis of a few isolated cases.
70. And politically relevant truth is by definition subjective. See H. Arendt, 'Truth and Politics', in her Between Past and Future (New York, Penguin 1993 (1961)) p. 227. This, in turn, has implications with respect to transitional justice. See briefly J. Klabbers, 'Commissioning the Truth?', 9 Ius Gentium (2003, forthcoming).
71. This does not apply to international legal historians, whose work is historical having the law as its subject.
72. I borrow the term relative truth from Neil MacCormick, while acknowledging that he uses it in a slightly different way. For him, it describes the position that a statement can be true in light of its premises rather than in an absolute sense, while I use it to denote the position of actors leading up to more generally accepted truths. The two senses are close enough, though, in that both concede that truth relies on acceptance rather than on any inherent characteristic of truthfulness. See N. MacCormick, Legal Reasoning and Legal Theory, rev. edn. (Oxford, Clarendon Press 1978), esp. pp. 271-272.
73. As Koskenniemi sums up: 'Few international lawyers think of their craft as the application of pre-existing formal rules or great objectives. What rules are applied, and how, which interpretative principles are used and whether to invoke the rule or the exception - including many other techniques - all point to pragmatic weighing of conflicting considerations in particular cases.' See M. Koskenniemi, 'What is International Law For?', in M. Evans, ed., International Law (Oxford, Oxford University Press 2003) p. 89 at p. 100.
74. See generally supra, sections 3 and 4.