Anthony Aust. Handbook of International Law
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of interpretation, and most disputes submitted to international adjudication involve a problem of
interpretation. Although Articles 31 and 32 are concerned with interpretation, they contain much that
is of practical value to the treaty-maker or to anyone involved in implementing a treaty.
Article 31
General rule of interpretation
A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to
the terms of the treaty in their context and in the light of its object and purpose.
1.
The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text,
including its preamble and annexes:
any agreement relating to the treaty which was made between all the parties in connection
with the conclusion of the treaty;
1.
any instrument which was made by one or more parties in connection with the conclusion of
the treaty and accepted by the other parties as an instrument related to the treaty.
2.
2.
There shall be taken into account, together with the context:
any subsequent agreement between the parties regarding the interpretation of the treaty or the
application of its provisions;
1.
any subsequent practice in the application of the treaty which establishes the agreement of the
parties regarding its interpretation;
2.
any relevant rules of international law applicable in the relations between the parties.3.
3.
A special meaning shall be given to a term if it is established that the parties so intended.4.
Paragraph 1
Paragraph 1 gives no greater weight to one particular factor, such as the text (‘textual’ or ‘literal’
approach), or the supposed intentions of the parties, or the object and purpose of the treaty
(‘effective’ or ‘teleological’ approach). Placing undue emphasis on the text, without regard to what
the parties intended; or on what the parties are believed to have intended, regardless of the text; or
on the perceived object and purpose in order to make the treaty more ‘effective’, irrespective of the
intentions of the parties, is unlikely to produce a satisfactory result. The International Court of
Justice has held in several cases that the principles embodied in Articles 31 and 32 reflect customary
international law.
121
121. See, for example, Libya v. Chad, ICJ Reports (1994), p. 4, at para. 41; 100 ILR 438.
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The first principle – interpretation in good faith – flows directly from the principle of pacta sunt
servanda (Article 26). Even if the words of the treaty are clear, if applying them would lead to a
result which would be manifestly absurd or unreasonable (to adopt the phrase in Article 32(b)), one
must seek another interpretation. When in 1991 the Union of Soviet Socialist Republics (mentioned
specifically in Article 23(1) of the UN Charter) was renamed the Russian Federation, no UN
Member suggested that the Charter would have to be amended before the Russian Federation could
occupy the former Soviet seat.
122
It is important to give a term its ordinary meaning since it is reasonable to assume, at least until
the contrary is established, that the ordinary meaning is most likely to reflect what the parties
intended. As McNair put it, the task of interpretation is:
the duty of giving effect to the expressed intention of the parties, that is, their intention as expressed in the
words used by them in the light of surrounding circumstances.
123
The determination of the ordinary meaning can be done only within the context of the treaty and in
the light of its object and purpose. The latter concept, as we have seen in relation to reservations to
treaties,
124
can be elusive. Fortunately, the role it plays in interpreting treaties is less than the search
for the ordinary meaning of the words in their context, but an interpretation that is incompatible with
the object and purpose may well be wrong.
Paragraph 2 (context)
Paragraph 2 specifies what comprises the context. When a treaty refers to an ‘aircraft’, does that
include all aircraft, civil and military, and what about microlights, hovercraft or balloons? For this
purpose, one must look at the treaty as a whole, including the title, preamble and any annexes. For
example, Article of the Comprehensive Nuclear-Test-Ban Treaty
125
prohibits ‘any nuclear
weapon test explosion or any other nuclear explosion’. The thought that this might ban the use of
nuclear weapons is, however, quickly dispelled by the unambiguous title of the treaty.
Paragraph 2 also provides that, in addition to the text, including the preamble and annexes, the
context comprises:
122. See UN Multilateral Treaties, Ch. , nn. 4 and 9.
123. McNair, The Law of Treaties, 2nd edn, Oxford, 1961, p. 365. For once, the emphasis is his.
124. At p. 70 above.
125. ILM (1996) 1443.
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any agreement relating to the treaty which was made between all the parties in connexion with
the conclusion of the treaty. The agreement does not have to be part of the treaty, or be itself a
treaty; but it must be a clear expression of the intention of the parties. When the ENMOD
Convention 1977 was negotiated, a series of ‘Understandings’ were agreed regarding the
interpretation or application of the Convention.
126
any instrument made by one or more parties in connexion with the conclusion of the treaty and
accepted by the other parties as an instrument related to the treaty. The Dayton Agreement 1995
included many such instruments,
127
as do EU constituent treaties.
2.
Such agreements and instruments are usually made at the conclusion of the treaty, or soon
afterwards.
The explanatory reports approved by the government experts involved in drafting conventions of
the Council of Europe, and adopted at the same time as the conventions and published with them,
provide an invaluable guide to their interpretation and should be seen as part of the ‘context’ in
which the conventions were concluded.
128
As such, they must be distinguished from ‘official’
commentaries which are later produced and, depending on the circumstances, may come to be
regarded as authoritative, such as the Handbook on Procedures and Criteria for Determining
Refugee Status, published by the UN High Commissioner for Refugees (UNHCR). The detailed
Commentaries of the International Law Commission (ILC) on its draft Articles are especially
valuable.
129
Commentaries published by organisations, such as the ICRC on the Geneva
Conventions of 1949, are highly persuasive.
130
Paragraph 3(a) (subsequent agreements)
Sub-paragraph (a) provides that, together with the context, there shall be taken into account any
‘subsequent agreement’ between the parties
126. 1108 UNTS 151 (No. 17119); ILM (1977) 16; TIAS 9614. See also the Understandings in the UN
Convention on State Immunity 2004, p. 160 below.
127. ILM (1996) 75.
128. Sinclair, pp. 129–30. For an example, see ILM (1994) 943.
129. Though they must be used with care, since the final version of an Article may differ materially. See A.
Watts, The International Law Commission 1949–1998, Oxford, 1999, which includes the full text of draft
Articles with their Commentaries and the final adopted text.
130. J. Pictet (ed.), The Geneva Conventions 1949: Commentary, Geneva, 1952–60. But see also S.
Rosenne, Practice and Methods of International Law, New York, 1984, pp. 50–1.
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regarding the interpretation of the treaty or the application of its provisions. There is no need for a
further treaty; the paragraph refers deliberately to an ‘agreement’, not a treaty. The agreement can
take various forms,
131
including a decision adopted by a meeting of the parties, provided this is
clearly the purpose.
132
Where a treaty needs a small modification that is essentially procedural, it
may be possible to embody it in an agreement as to the application of the treaty. This technique is
particularly useful if there is a need to fill a lacuna, to update a term or to postpone the operation of a
provision. The date for the first election of judges of ITLOS was specified in UNCLOS, but the date
turned out to be premature and the election was postponed by a consensus decision of the Meeting of
Parties.
133
These techniques are very important for treaty implementation.
Paragraph 3(b) (subsequent practice)
Sub-paragraph (b) provides that, together with the context, there shall be taken into account any
subsequent practice in the application of the treaty that establishes the agreement of the parties
regarding its interpretation. Reference to practice is well established in the jurisprudence of
international tribunals. However precise a text appears to be, the way in which it is actually applied
by the parties is usually a good indication of what the parties understood it to mean, provided the
practice is consistent, and is common to, or accepted by, all the parties.
134
Article 37(1) of the Vienna Convention on Diplomatic Relations 1961 refers to the ‘members of
the family of a diplomatic agent forming part of his household’.
135
The phrase is not defined, and
even in 1961 there was doubt as to exactly which persons formed part of a diplomat’s household: did
it include a thirty-year-old perpetual student child? Given the changes in society since then (and to
which even diplomats are not entirely immune), might other persons now be considered members of
the family? Does it now include unmarried partners? And, if so, what about partners of the same
sex? In interpreting the phrase, great weight
131. See the example given in R. Gardiner, ‘Treaties and Treaty Materials: Role, Relevance and
Accessibility’ (1997) ICLQ 643 at 648–9.
132. See p. 471 below.
133. SPLOS/3 of 28 February 1995.
134. See the US–France Air Services Arbitration, 1963, 38 ILR 182.
135. 500 UNTS 95 (No. 7310); UKTS (1965) 19.
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must necessarily be given to the practice of states, most states having had to face such problems.
136
Perhaps the most dramatic, and oft-quoted, example of interpretation by subsequent practice is the
way in which Members of the United Nations have interpreted and applied Article 27(3) of the
Charter in relation to the veto.
137
Paragraph 3(c) (relevant rules of international law)
Sub-paragraph (c) provides that, together with the context, there shall be taken into account any
relevant rules of international law applicable in the relations between the parties. For example, in
certain cases, reaching an interpretation which is consistent with the intentions (or perceived
intentions) of the parties may require regard to be had not only to international law at the time the
treaty was concluded (the ‘inter-temporal rule’),
138
but also to contemporary law.
139
In interpreting
today a reference to the continental shelf in a treaty of, say, 1961, it would probably be necessary to
consider not only the Geneva Convention on the Continental Shelf 1958, but also the United Nations
Convention on the Law of the Sea 1982.
140
Paragraph 4 (special meaning)
A special meaning must be given to a term if it is established that the parties so intended (paragraph
4). Notwithstanding the apparent meaning of a term in its context, it is open to a party to invoke any
special meaning, but the burden of proof rests on that party.
141
Supplementary means of interpretation
Article 32
Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the preparatory work of the
treaty and the circumstances of its conclusion,
136. See further p. 146 below.
137. See p. 213 below.