Anthony Aust. Handbook of International Law
Подождите немного. Документ загружается.
138. See p. 35 above.
139. See R. Higgins, ‘Some Observations on the Inter-Temporal Rule in International Law’, in J.
Makarczyk (ed.), Theory of International Law at the Threshold of the 21st Century, The Hague, 1996, pp.
173–81; and R. Higgins, ‘Time and the Law: International Perspectives on an Old Problem’ (1997) ICLQ
501–20.
140. See Sinclair, pp. 138–40, and Oppenheim, para. 633(11).
141. See Sinclair, pp. 126–7.
Page 94
in order to confirm the meaning resulting from the application of Article 31, or to determine the
meaning when the interpretation according to Article 31:
leaves the meaning ambiguous or obscure; or1.
leads to a result which is manifestly absurd or unreasonable.2.
The preparatory work (travaux préparatoires, or travaux for short) of a treaty is an important
supplementary means of interpretation. It is by its nature less authentic, often being incomplete and
misleading. Nevertheless, in certain circumstances, recourse may be had to travaux to ‘confirm’ the
meaning resulting from the application of Article 31, and international tribunals have long done
so.
142
In order to understand what the negotiating states intended, recourse to the travaux and the
circumstances of the conclusion of the treaty may be necessary.
143
In Lockerbie, the United
Kingdom maintained that it was not intended that the UN Charter should give the International
Court of Justice a power of judicial review over Security Council decisions, and that this is clearly
supported by the travaux of the Charter.
144
The rest of Article 32 provides that recourse may also be had to the same supplementary means of
interpretation when reliance on the primary means produces an interpretation which (a) leaves the
meaning ‘ambiguous or obscure’ or (b) leads to a result which is ‘manifestly absurd or
unreasonable’. In this case, the purpose is not to confirm, but to determine, the meaning.
When the ordinary meaning appears to be clear, the primary duty to interpret a treaty in good faith
means that, if it is evident from the travaux that the ordinary meaning does not represent the
intention of the parties, a court may ‘correct’ the ordinary meaning.
145
This is how things work in
practice; for example, the parties to a dispute will always refer the tribunal to the travaux, and the
tribunal will inevitably consider them along with all the other material put before it.
The travaux are generally understood to include successive drafts of the treaty, conference
records, explanatory statements by an expert
142. See, for example, McNair, p. 413, n. 3, and p. 422, n. 4.
143. O’Connell, p. 263.
144. Libya v. United Kingdom (Preliminary Objections), ICJ Reports (1998), p. 9, paras. 4.17– 4.18; ILM
(1998) 587; 117 ILR 1 and 644; and the submissions of the Lord Advocate (CR 97/17, para. 5.46), and the
dissenting opinion of President Schwebel.
145. S. 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, The Hague, 1996, pp. 541–7.
Page 95
consultant at a codification conference, uncontested interpretative statements by the chairman of a
drafting committee and ILC Commentaries. Their value will depend on several factors, the most
important being authenticity, completeness and availability. The summary record of a conference
prepared by an independent and experienced secretariat will carry more weight than an unagreed
record produced by a host state or a participating state. However, even the records of a conference
served by a skilled secretariat will generally not tell the whole story. The most important parts of
negotiating and drafting often take place informally, with no agreed record being kept. The reason
why a particular compromise formula was adopted, and what it was intended to mean, may be
difficult to establish.
146
This will be especially so if the form of words was deliberately chosen to
overcome a near irreconcilable difference of substance. The final drafting of new Article 3bis
(prohibition on use of force against civil aircraft) of the Chicago Convention was done by hectic,
highly visible and informal (literally back-of-the-envelope) negotiations during a mayoral reception
near the end of a three-week conference.
147
Other supplementary means of interpretation
It is also legitimate to assume that the parties to a treaty did not intend that the treaty would be
incompatible with customary international law.
148
There are several other means of interpretation,
though it is not always easy to distinguish them from familiar legal techniques, often based on
commonsense or grammatical rules. Many derive from principles of domestic law, especially Roman
Law.
149
Implied terms
Although it is not for an international tribunal to revise a treaty by reading into it provisions that it
does not contain by necessary implication, it is sometimes necessary to imply a term, and this has
been the approach of the International Court of Justice
150
and the European Court of Human
146. See p. 126 below on whether service of legal process can be made on a diplomatic mission.
147. ILM (1984) 705; UKTS (1999) 68. A young Danish delegate watched the informal negotiations with
much professional amusement, and later married me.
148. O’Connell, p. 261.
149. See Aust, p. 200.
150. The Court will not ‘revise’ a treaty on the pretext that it has found an omission: see S. Rosenne, The
Law and Practice of the International Court of Justice, 3rd edn, The Hague, 1997, pp. 172–3.
Page 96
Rights.
151
At the end of the Falklands conflict, there was not enough accommodation on the islands
for the approximately 10,000 prisoners of war captured in the final stages, the ship carrying the tents
having been sunk by the enemy. Following consultations with the ICRC, it was decided that the
POWs could be kept on merchant ships and warships in Falklands waters until they could be
repatriated. Although Article 22 of the Third Geneva Convention
152
prohibits holding on ships
POWs who are captured on land, given that its object and purpose is the welfare of POWs, one
could properly imply a term that when, for reasons beyond its control, a party to a conflict was
unable to comply with Article 22, it may hold POWs on ships if that is preferable to leaving them on
land without sufficient protection from the elements. Good interpretation is often no more than the
application of commonsense.
Thus one has to look at the treaty as a whole, plus all other relevant materials, assessing their
respective weight and value. This is, in fact, what international lawyers and international courts and
tribunals do when confronted by a difficult question of interpretation.
Interpretation of treaties in more than one language
Many treaties, bilateral as well as multilateral, are bilingual or plurilingual. The language of one of
the negotiating states may not be widely spoken, and to produce a draft and hold the negotiations in
that language may be unduly burdensome. Bilateral negotiations are therefore frequently held in the
language of only one of the states, or in a third language with which both are comfortable, which
these days is often English. This may be reflected in the languages in which a treaty is concluded and
in the choice of a language text to prevail in the case of a difference. The Kuwait Regional Marine
Environment Convention 1978 was concluded in Arabic, English and Persian, but provides that in
the case of divergence the English text prevails.
153
The Convention was almost certainly drafted,
and possibly even negotiated, in English.
Multilateral negotiations are more likely to be held in more than one language, although there are
notable exceptions. Although the
151. See McNair, The Law of Treaties, 2nd edn, Oxford, 1961 Ch. 26; and Merrills, The Development of
International Law by the European Court of Human Rights, 2nd edn, 1993, pp. 84–90.
152. 75 UNTS 3 (No. 972); UKTS (1958) 39.
153. ILM (1978) 511. See also the Japan–Pakistan Cultural Agreement 1957, 325 UNTS 22 (No. 4692).
Page 97
proceedings of the General Assembly of the United Nations and its committees are conducted in the
six official languages, informal meetings (of which there are many) are often held, and drafting
done, only in English.
Treaties that have been concluded in more than one language can cause problems of interpretation
if there are material differences between the language texts even after the toilette finale.
154
But, if
there is still a discrepancy, the problem can be overcome if the treaty provides that in the case of
inconsistency the text in one language shall prevail.
These treaty practices are reflected in Article 33. But, if the treaty was negotiated and drafted in
only one of the authentic languages, it is natural to place more reliance on that text, particularly if it
is unambiguous. The Dayton Agreement 1995 was negotiated entirely in English, even though there
are supposed to be authentic texts in Bosnian, Croatian and Serbian.
155
Although such texts are
equally authentic, in practice they may not carry quite the same weight as the original. This approach
is not incompatible with paragraph 4, and the jurisprudence of the International Court of Justice
would seem to support this approach in suitable cases.
156
Third states
A third state is one which is ‘not a party to the treaty’ (Article 2(1)(h)), and therefore can range from
a state which is not eligible to become a party to a state which has ratified but for which the treaty is
not yet in force. A treaty does not impose obligations on or create rights for a third state without its
consent (Article 34).
Two conditions must be satisfied before a third state can be bound by a treaty obligation: first, the
parties must intend the provision to be the means of establishing the obligation of the third state;
and, secondly, the third state must have expressly accepted the obligation in writing (Article 35).
Conduct consistent with acceptance of the obligation is not enough. But even if a third state has
accepted an obligation in a treaty, it does not thereby become a party to the treaty.
There is nothing in international law to prevent two or more states creating by treaty a right in
favour of a third state (a sort of trust). Thus a right arises for a third state (or a group of states to
which it belongs) if the parties to the treaty so intend and the third state assents. Since
154. See Aust, p. 203.
155. ILM (1996) 75.
156. Sinclair, pp. 147–52.
Page 98
the third state is not required to do anything, unless the treaty provides otherwise its assent is
presumed as long as the contrary is not indicated (Article 36(1)). When exercising a right conferred
on it, the third state must comply with the conditions for its exercise (Article 36(2)).
The Convention does not deal with erga omnes rights and obligations as such, but the rule in
Article 36(1) (by which a right can be accorded to ‘all states’) furnishes a sufficient legal basis for
the establishment of treaty rights and obligations valid erga omnes.
157
Amendment
Amendment needs always to be thought about seriously when drafting and negotiating a treaty;
afterwards is just too late. Although amending a bilateral treaty causes no great technical difficulty,
amending a multilateral treaty can raise a multitude of problems. It may have as many as 150 or
more parties and be of unlimited duration. These factors lead to two basic problems. First, the
process of agreeing amendments and then bringing them into force for all the parties can be even
more difficult than negotiating and bringing into force the original treaty. Secondly, because of their
long life multilateral treaties are often in need of amendment.
Before the Second World War, treaty amendment usually required unanimity. This is generally
still the rule for the constituent treaties of regional international organisations like the Council of
Europe and the European Union. But in other cases a practice has developed by which an
amendment enters into force only for those parties willing to accept it. This means that the original
treaty still remains in force (1) as between the parties that do not accept the amendments and (2)
between those parties and the parties that do accept them. This results in a dual treaty regime. This
highly unsatisfactory result is made much worse when there is a series of amending treaties. The
several failed attempts to modernise the Warsaw Convention 1929 has meant that the parties to the
various amending and supplementing instruments all vary, thus preventing the implementation of a
uniform compensation scheme throughout international civil aviation.
158
Therefore, today, many treaties, especially multilateral, now have built-in amendment
mechanisms.
157. See p. 10 above for more on erga omnes.
158. See p. 350 below.
Page 99
Bilateral treaties
The parties to a bilateral treaty can always agree to an amendment, the only question is the way in
which it is expressed. Often, it is to the effect that any amendments or modifications agreed by the
parties shall come into effect when confirmed by an exchange of notes.
Multilateral treaties
It is essential to include in most multilateral treaties an effective amendment mechanism. The
constituent instruments of international organisations especially need to have built-in amendment
procedures under which, once an amendment has been finally endorsed by a specified percentage of
the members, it is then binding on all members. Article 108 of the Charter of the United Nations has
perhaps the most succinct and elegant procedure:
Amendments to the present Charter shall come into force for all Members of the United Nations when
they have been adopted by a vote of two thirds of the members of the General Assembly and ratified in
accordance with their respective constitutional processes by two thirds of the Members of the United
Nations, including all the permanent members of the Security Council.
The essential characteristic of this procedure is that once an amendment has entered into force it also
binds those who did not vote for or ratify it.
Other amendment procedures included in treaties in recent years are often elaborate. No two are
the same, each being tailored to suit the particular needs of the organisation or treaty,
159
but they
usually provide for:
the number of parties, or votes in the plenary body or meeting, needed to support an
amendment before it has to be put to the vote of the parties;
the majority needed for adoption of the amendment;
whether the adopted amendment needs to be ratified or accepted;
if applicable, the number of parties which need to ratify for the amendment to enter into force;
159. Blix and Emerson, The Treaty-Maker’s Handbook, Dobbs Ferry, NY, 1973, pp. 225–39, has
many examples from before 1966. See also the UN Handbook of Final Clauses
(http://untreaty.un.org/English/FinalClauses/Handbook.pdf.), pp. 97–105.