RELUCTANT GRUNDNORMEN: ARTICLES 31(3)(C) AND 42 OF THE VIENNA CONVENTION ON THE LAW OF TREATIES AND THE FRAGMENTATION OF INTERNATIONAL LAW

Developments in International Law

Volumn 58, Issue , 2007, Pages 141-161

  Klabbers, Jan ^a  

^a UNIVERSITY OF HELSINKI   (Finland)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 85202694523     PISSN: None     EISSN: 09245332     Source Type: Book Series    
DOI: None     Document Type: Chapter

References (124)

1. 1 For further exploration, see Klabbers, ‘International Legal Histories: The Declining Importance of Travaux Préparatoires in Treaty Interpretation?’, 50 Netherlands International Law Review (2003) 267.
2. 2 For an analysis of the factor of time with respect to the Convention itself, see Rosenne, ‘The Temporal Application of the Vienna Convention on the Law of Treaties’, 4 Cornell International Law Journal (1970–71) 1.
3. The moment a treaty is deemed to have been concluded is discussed in Vierdag, ‘The Time of the Conclusion of a Multilateral Treaty: Article 30 of the Vienna Convention on the Law of Treaties and Related Provisions’, 59 British Yearbook of International Law (1988) 92.
4. For a general overview see Nascimento e Silva, ‘Le facteur temps et les traités’, 154 Recueil des Cours (1977) 215.
5. 3 This obviously applied also prior to the Vienna Convention. See generally, e.g., Parry, ‘The Law of Treaties’, in M. Sörensen (ed.), Manual of Public International Law (1968) 175.
6. 4 The notion was famously developed by Hans Kelsen. See in particular his Introduction to the Problems of Legal Theory (1992), esp. 55–64.
7. An excellent discussion of Kelsen’s work can be found in J. von Bernstorff, Der Glaube an das universale Recht: Zur Völkerrechtstheorie Hans Kelsens und seiner Schüler (2001).
8. 5 This should not come as a surprise. On the connections between law and power, see M. Foucault, Society Must Be Defended: Lectures at the Collège de France 1975–1976 (2004).
9. 6 The first special rapporteur on the law of treaties, J.L. Brierly, never got around to discussing rules of interpretation, and never managed to work up much enthusiasm for drafting a Convention to begin with.
10. 7 For a general discussion, see Klabbers, ‘On Rationalism in Politics: Interpretation of Treaties and the World Trade Organization’, 74 Nordic Journal of International Law (2005) 405.
11. 8 The text ran: ‘1. A treaty is to be interpreted in the light of the law in force at the time when the treaty was drawn up. 2. Subject to paragraph 1, the application of a treaty shall be governed by the rules of international law in force at the time when the treaty is applied.’ See Waldock, ‘Third Report on the Law of Treaties’, Doc.A/CN.4/167 and Adds.1–3, YBILC (1964) vol. II, 8–9. For a brief discussion, see Nascimento e Silva, 74 Nordic Journal of International Law (2005) note 2, 265–270.
12. 9 Actually, he did nothing of the sort: his brief commentary on draft article 56 traced the development of the intertemporal rule through the cases, but hardly addressed any reasons as to why such a rule would be useful or desirable. See Waldock, 74 Nordic Journal of International Law (2005) 8–10.
13. 10 It finds its roots in Max Huber’s classic dictum in the 1928 Island of Palmas arbitration, 2 RIIA (1928) 829.
14. 11 See GA Resolution 3314 (XXIX), 14 December 1974. For an informed discussion, see Stone, ‘Hopes and Loopholes in the 1974 Definition of Aggression’, 71 American Journal of International Law (1977) 224.
15. 12 Many sensible things about interpretation have been written by Stanley Fish. See for a more systematic explication of this position, the essays collected in S. Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (1989).
16. 13 See Jessup’s famous commentary on Judge Huber’s award in the Island of Palmas arbitration: Jessup, ‘The Palmas Island Arbitration’, 22 American Journal of International Law (1928) 740.
17. Following Jessup, W.J.B. Versfelt too finds Huber’s dictum ‘highly disturbing. Every state would continually have to be considering: does international law still recognize my sovereignty over such or such part of my territory or has it developed new requirements, which I do not now fulfil?’ See: W.J.B. Versfelt, The Miangas Arbitration (1933) 15.
18. 14 ILC, 728th meeting, YBILC (1964) vol I, 34.
19. 15 ILC, 729th meeting, YBILC (1964), 35.
20. 16 YBILC (1964), 36.
21. 19 Several members, accordingly, advocated such a split, most explicitly perhaps Tabibi (729th meeting, supra note 15, 35) and De Luna, YBILC (1964), 37.
22. 20 ILC, 728th meeting, YBILC (1964) note 14, 33.
23. 21 YBILC (1964), 34.
24. 22 ILC, 729th meeting, YBILC (1964) note 15, 37.
25. 24 ILC, 729th meeting, YBILC (1964) note 15, 39; a few sentences earlier, he had made essentially the same point: ‘many other articles of the draft . . . also involved interpretation as a preliminary to application of a treaty.’
26. 25 YBILC (1964), 40.
27. 26 Draft article 69, as reproduced in YBILC (1966) vol. I, 183.
28. 27 Waldock, ‘Sixth Report on the Law of Treaties’, Doc.A/CN.4/186 and Adds.1-7, YBILC (1966) vol. II, 92.
29. 28 YBILC (1966), 93.
30. 29 YBILC (1966), 96.
31. 30 ILC, 869th meeting, YBILC (1966) vol. I, part II, 184.
32. 31 If the intertemporal problem were to have been taken into account, then, as Herbert Briggs suggested, the most adequate formula would be somewhat convoluted: ‘The rules of international law in force at the time of its conclusion as well as those rules in force at the time of its interpretation.’ See ILC, 870th meeting, YBILC (1966) vol. I, part II, 187. Note, incidentally, that in Briggs’ formulation any distinction between interpretation and application has disappeared.
33. 32 So, e.g., Jiménez de Aréchaga, YBILC (1966), 190.
34. 33 ILC, 872nd meeting, YBILC (1966), 199.
35. 34 The reference to the law as applicable in the relations to the parties seems to have been included by the Drafting Committee without any particular urging on the part of, or discussion within, the ILC. See ILC, 883rd meeting, YBILC (1966) vol I, 267.
36. 35 Report of the IL Conthe Work of its Eighteenth Session, Doc. A/CN. 4/191, YBILC (1966) vol. II, 222.
37. 36 Official Records of the United Nations Conference on the Law of Treaties, Vienna, (hereinafter Vienna Conference), (1968–69) 149–151.
38. 37 Most notably the USA and the Philippines, Official Records of the United Nations Conference on the Law of Treaties, Vienna.
39. 38 And there seems something quite natural about this. Recall, e.g., that already in its first ever contentious case, the PCIJ was asked to interpret the provisions of the Versailles Treaty concerning the Kiel Canal in light of other instruments on international waterways, and in light of the law of neutrality. See Case of the SS Wimbledon, PCIJ Series A, (1923), No. 1, 231.
40. On Wimbledon, see Klabbers, ‘Clinching the Concept of Sovereignty: Wimbledon Redux’, 3 Austrian Review of International and European Law (1998) 345
41. for a useful discussion of the work of the PCIJ, see O. Spiermann, International Legal Argument in the Permanent Court of International Justice: The Rise of the International Judiciary (2005).
42. 39 ILC, 871st meeting, YBILC (1966) vol. I, part II, 197.
43. 40 The ICJ made grateful use of article 31, paragraph 3 (c) in its decision in the Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America), ICJ Rep 2003, 182.
44. 41 For a balanced discussion, see Elias, ‘The Doctrine of Intertemporal Law’, 74 American Journal of International Law (1980) 285.
45. 42 See Fitzmaurice, ‘The Practical Workings of the Law of Treaties’, in M. Evans (ed.), International Law (2003) 173.
46. 43 See, e.g. A. Aust, Modern Treaty Law and Practice (2000) 224.
47. 44 A relative exception is the attention afforded in I. Sinclair, The Vienna Convention on the Law of Treaties (1984) 162–165.
48. 45 See, e.g. Capotorti, ‘L’extinction et la suspension des traités’, 134 Recueil des Cours (1971) 455.
49. 46 A. Aust, 134 Recueil des Cours (1971) note 43, 245, pithily observes that article 65 is a ‘key provision, its procedural safeguards being designed to deter states from arbitrary action, though it is often not followed.’
50. 47 In particular article 69 of the Vienna Convention.
51. 48 An example highlighting the connection between article 42 and articles 65 and 69 is H. Mosler, The International Society as a Legal Community (1980) 102.
52. 49 Waldock, ‘Second Report on the Law of Treaties’, Doc.A/CN.4/156 and Adds.1-3, YBILC (1963) vol. II, 39.
53. 50 YBILC (1963), 39.
54. 51 See the discussion during the 702nd meeting, in YBILC (1963) vol. I, 194–196.
55. 52 YBILC (1963), 195.
56. 53 Presumably, he was thinking here about limits to territorial or temporal application. He referred to his next report, which deals with such issues.
57. 54 ILC, 702nd meeting, supra note 51, 195.
58. 55 ILC, 717th meeting, YBILC (1963) vol. I, 296.
59. 56 Waldock, ‘Fourth Report on the Law of Treaties’, Doc.A/CN.4/177 and Adds.1-2, YBILC (1965) vol. II, 65–67.
60. 57 YBILC (1965), 65.
61. 58 YBILC (1965), 65.
62. 59 YBILC (1965), 66.
63. 60 There are two technical differences in paragraph 1. One is that article 42 distinguishes between the validity of a treaty and the validity of an expression of consent
64. draft article 39 made no such distinction. The second is that draft article 39 spelled out that an invalid treaty would be void
65. this is left out of article 42, and found a place in article 69 on a French initiative: see Vienna Conference, supra note 36, 159.
66. 61 Report of the ILC on the Work of its Eighteenth Session, Doc. A/CN.4/191, YBILC (1966) vol. II, 236–237 esp. 236.
67. 62 ILC, 841st meeting, YBILC (1966) vol. I, part I, 123.
68. 64 YBILC (1966), 124.
69. 65 See Vienna Conference, YBILC (1966) note 36, para. 16 (a) of the introduction to the report. This change was made throughout the Convention.
70. 66 Nahlik, ‘The Grounds of Invalidity and Termination of Treaties’, 65 American Journal of International Law (1971) 737.
71. 67 I. Sinclair, YBILC (1966) note 44, 162.
72. Note however that some turn the causality around, holding that the idea to safeguard the sanctity of treaties ‘required the Commission to produce a series of articles to deal with all the grounds on which a claim could legitimately be made that a treaty was invalid or subject to termination, denunciation, withdrawal or suspension.’ See Kearney & Dalton, ‘The Treaty on Treaties’, 64 American Journal of International Law (1970) 526.
73. 68 Best summed up in the title of R.B. Bilder, Managing the Risks of International Agreement (1981).
74. 69 See Nahlik, Managing the Risks of International Agreement (1981) note 66, 752–753.
75. 70 See Crawford & Olleson, ‘The Exception of Non-performance: Links Between the Law of Treaties and the Law of State Responsibility’, 21 Australian Yearbook of International Law (2000) 55.
76. 71 See R.Y. Jennings & A. Watts, Oppenheim’s International Law (1992) 1285, footnote 1. They suggest, furthermore, that a strict reading of article 42 would be difficult to reconcile with the last recital of the Vienna Convention’s preamble, which keeps the door open for customary international law.
77. 72 See Lauterpacht, ‘First Report on the Law of Treaties’, Doc. A/CN.4/63, YBILC (1953) vol. II, 156–159. McNair too treats this under the heading of validity
78. A. McNair, The Law of Treaties (1961) 213–236.
79. 73 As conflicting obligations are, eventually, not listed among the grounds of invalidity in the Vienna Convention, it would be difficult to argue that nonetheless invalidity should ensue.
80. 74 Capotorti, supra note 45, 44 and 446–447.
81. Capotorti is approvingly referred to by Sinclair, supra note 44, 64.
82. 75 Writing well before the Vienna Convention, E. Vitta mentioned lack of registration as a ground for invalidity. See E. Vitta, La Validité des Traités Internationaux (1940) 245.
83. 76 See already Rosenne, ‘Bilateralism and Community Interest in the Codified Law of Treaties’, in W. Friedmann, L. Henkin & O. Lissitzyn (eds.), Transnational Law in a Changing Society: Essays in Honor of Philip C. Jessup (1972) 202. In it, he subtly suggests (esp. at 208–211) that the community interest underlying rules on validity (almost by definition) is canceled out by the bilateralism of the procedure to be followed under the Vienna Convention’s regime.
84. 77 At least, he was the first to publicly endorse the idea, after some of his colleagues had deemed it ‘unnecessary’. See ICL, 702nd meeting, Transnational Law in a Changing Society note 51, 195.
85. 78 See briefly, e.g., Oeter, ‘State Succession and the Struggle over Equity: Some Observations on the Laws of State Succession with Respect to State Property and Debts in Cases of Separation and Dissolution of States’, 38 German Yearbook of International Law (1995) 73.
86. 79 For an example, see Lehto, ‘Succession of States in the Former Soviet Union: Arrangements Concerning the Bilateral Treaties of Finland and the USSR’, 4 Finnish Yearbook of International Law (1993) 222–225.
87. 80 Most notably in the decision of the European Court of Justice in case C-162/96, A. Racke GmbH & Co. v. Hauptzollamt Mainz, [1998] ECR I-3655.
88. For further discussion, see Klabbers, ‘Reinventing the Law of Treaties: The Contribution of the EC Courts’, 30 Netherlands Yearbook of International Law (1999) 57–59.
89. 81 Given the wording of article 60 (stressing the relevance of the norm breached rather than the gravity of the breach), it was well-nigh inevitable that courts would take article 60 not quite literally. See generally Simma, ‘Reflections on Article 60 of the Vienna Convention on the Law of Treaties and its Background in General International Law’, 20 Österreichische Zeitschrift für Öffentliches Recht und Völkerrecht (1970) 5.
90. 82 See generally Klabbers, ‘Side-stepping Article 60: Material Breach of Treaty and Responses Thereto’, in M. Tupamäki (ed.), Finnish Branch of International Law Association 1946–1996 (1998) 20.
91. 83 It has been noted that it is somewhat awkward to speak of a Grundnorm situated at the apex of a legal order
92. this usage might suggest a tension inherent in the notion. See D. Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar (1997) 103, footnote 4.
93. 84 I am indebted to Anja Lindroos for intelligent discussion on this point.
94. 85 See Koskenniemi, ‘Preliminary Report on Function and Scope of the Lex Specialis Rule and the Question of ‘Self-contained Regimes’, UN Doc. ILC(LVI)/SG/FIL/CRD.1/add.1, 40, paras. 187–188.
95. 86 The locus classicus is Simma, ‘Self-contained Regimes’, 16 Netherlands Yearbook of International Law (1985) 111.
96. 87 On the fundamentals of the relationship, see, e.g., Kennedy, ‘The International Style in Postwar Law and Policy’, Utah Law Review (1994) 7.
97. MacMillan, ‘International Economic Law and Public International Law: Strangers in the Night’, 10 International Trade Law & Regulation (2004) 115.
98. 88 See J. Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (2003).
99. 89 Such a vision is endorsed (albeit not in very open terms) by the so-called ‘Sutherland report’. See Consultative Board to the Director-General Supachai Panitchpakdi, The Future of the WTO: Addressing Institutional Challenges in the New Millennium (2004).
100. For commentary on this issue, see Klabbers, ‘New Logo: The Sutherland Report and the Re-branding of the WTO’, 2 International Organizations Law Review (2005) 177.
101. 90 Sometimes referred to as ‘deformalization’. See, e.g., Koskenniemi, ‘Global Governance and Public International Law’, 37 Kritische Justiz (2004) 241.
102. 91 See Teubner, ‘Societal Constitutionalism: Alternatives to State-centred Constitutional Theory’ in C. Joerges, I.-J. Sand & G. Teubner (eds.), Transnational Governance and Constitutionalism (2004) 16.
103. 92 The example is adapted from A. Fischer-Lescano & G. Teubner, Regime-Kollissionen: Kompatibilität durch Vernetzung statt Rechtseinheit (unpublished paper, 2004, on file with the author).
104. 93 An interesting discussion is Fischer-Lescano, ‘Die Emergenz der Globalverfassung’, 63 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (2003) 717, (holding that law is self-reflexive with the final decisions on validity being taken by courts, but that fundamental norms take communication between legal orders to a higher level).
105. 94 For a normative critique, suggesting that there might be solid non-legal reasons for favouring public elements, see Cohen, ‘Whose Sovereignty? Empire versus International Law’, 18 Ethics & International Affairs (2004) 1.
106. 95 Some pertinent themes are explored in K.-H. Ladeur (ed.), Public Governance in the Age of Globalization (2004).
107. 96 For some reflections focusing on how international organizations are affected, see Klabbers, ‘Constitutionalism Lite’, 1 International Organizations Law Review (2004) 31.
108. 97 See generally R.M. Unger, Law in Modern Society: Towards a Criticism of Social Theory (1976).
109. 98 On the latter, see V. Engström, Realizing the Global Compact (2001).
110. 99 For a treatment of all sorts of norms as part of an ‘autonomous global legal order’, see Brunkhorst, ‘Globalising Democracy without a State: Weak Public, Strong Public, Global Constitutionalism’, 31 Millennium (2002) 675.
111. 100 This seems to be where William Mansfield is heading in his report to the ILC. See UN Document ILC (LVI)/SG/FIL/CRD.3/Rev.1, para. 63.
112. 101 On the theoretical twists involved in turning from a consent-based system into something more ‘public’, see also the discussion in Craven, ‘Legal Differentiation and the Concept of the Human Rights Treaty in International Law’, 11 European Journal of International Law (2000) 489.
113. 102 See, e.g., Separate Opinion of Judge Higgins in the Oil Platforms case, supra note 40, 237. Incidentally, she may be mistaken in suggesting that article 31, paragraph 3 (c) would refer, under the Vienna Convention, to international law as part of the context
114. literal reading would suggest that international law comes in ‘together with’ the context of a treaty.
115. 103 See the discussion in A. Carty, The Decay of International Law (1986), esp. Chapter 5.
116. 104 Famously, H.L.A. Hart, The Concept of Law (1961), esp. Chapter 10.
117. The fine biography by N. Lacey, A Life of H.L.A. Hart: The Nightmare and the Noble Dream (2004), provides little additional insight on Hart’s thoughts on international law.
118. 105 Which adds a new dimension to the old adage about the horror vacui of law.
119. 106 See, e.g., D. Verwey, The European Community, the European Union and the International Law of Treaties (2004) 257.
120. 107 For an explanation, see Klabbers, The European Community, the European Union and the International Law of Treaties (2004) note 7.
121. 108 See generally also Kennedy, ‘The Turn to Interpretation’, 58 Southern California Law Review (1985) 275 (noting that the turn to interpretation implies a turn to elite management, which ‘reconfirms the structured distinction between truth and power which in turn sustains the position of the manager.’)
122. 109 Although there might be, in case of interpretation by judicial bodies, considerations relating to jurisdiction to take into account. See Separate Opinion of Judge Buergenthal, Oil Platforms case, supra note 40, 278–9.
123. 110 See Koskenniemi, ‘Legal Universalism between Morality and Power in a World of States’, in S. Cheng (ed.), Law, Justice, and Power: Between Reason and Will (2004) 62.
124. 111 For a fine illustration of the emancipatory potential of international law, K. Knop, Diversity and Self-determination in International Law (2002).