Negotiated Text Network Seminar 28 February 2018

Wednesday 28 February 2018, 1.30pm, Harold Lee Room, Pembroke College

On 28 February, the Negotiated Texts Network gained insight into working with negotiated texts in the context of public international law. As part of the network’s mandate, Matthew Windsor, a Junior Research Fellow at Hertford College, Oxford, was invited to moderate a discussion on some problems of treaty interpretation with particular reference to Article 32 of the Vienna Convention on the Law of Treaties (VCLT). Presentations were given by doctoral candidates Talita de Souza Dias and Yulia Ioffe as well as Sebastian Bates, a research assistant at the Quill Project.

Matthew Windsor began with a brief introduction to the Vienna Convention. He explained that Articles 31 through 33 of the Vienna Convention set out the principles governing the interpretation of treaties. Article 31 stipulates that 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’. Article 32 allows recourse to supplementary means of interpretation (including travaux préparatoires, the material that a Quill model would capture) to confirm the meaning resulting from the application of Article 31 or to produce the meaning where it would otherwise be ‘ambiguous’, ‘obscure’, or ‘manifestly absurd’. Article 33 goes on to deal with the interpretation of the treaties authenticated in two or more languages.

Matthew pointed out that one problem with using travaux as an interpretive tool is that proof of common understanding among the parties to a negotiation is difficult to establish. Records of treaty negotiations can be incomplete, inconclusive, and hard to access. It is also not uncommon that obscurity in the final text reflects difficulty in coming to agreement during the negotiations. As a result, travaux may add little and simply serve to undermine legal certainty. Despite these reservations, Matthew noted that the reality is that travaux are invoked by international lawyers and a legal argument without some acknowledgement of these materials would be considered incomplete. There is therefore potential for the Quill Project to develop tools of real value in this field.

In the second presentation, Yulia Ioffe discussed the impact of travaux on the interpretation of the right to family reunification of migrant children under the Convention on the Rights of the Child (CRC). She noted that the CRC is one of the most widely-ratified international human rights treaties in history and covers all aspects of a child’s life. It was drafted in a complex process that lasted for ten years: the travaux are therefore extensive and help us to better understand the provisions of the final text. She argued that Articles 9 and 10 of the CRC are neither ambiguous nor obscure and thus it is unnecessary to have recourse to travaux to understand them; however, she suggested that a number of commentators have relied on a selective reading of the travaux to support a possibly unjustifiable interpretation of these provisions. She suggested that further work on these materials could therefore be illuminating in resolving this issue of utmost humanitarian importance.

The third presentation of the afternoon dealt with the role of travaux in international criminal law. Expanding on Matthew’s introduction, Talita de Souza Dias contrasted the general approach to interpretation adopted under the Vienna Convention with that which should be adopted in the criminal context, where principles such as nullum crimen nulla poena sine lege (no crime or punishment without prior law) and in dubio pro reo (when in doubt, resolve ambiguity in favour of the accused) apply. Talita provided a useful example by demonstrating how this approach can help us understand the scope of the Prosecutor’s discretion to defer a case before the International Criminal Court. Article 53(1)(c) and 2(c) of the Rome Statute (which created the Court) provides that the Prosecutor can defer a case ‘in the interests of justice’. Although the general approach under the Vienna Convention is not sufficient to eliminate the ambiguity of this phrase, international human rights law, the principle of in dubio pro reo, and the travaux all point to a broad interpretation, which would allow the deferral of a case for peace and security reasons. The travaux in particular support such an interpretation, which demonstrates that travaux can be useful, within a narrow compass, to international criminal lawyers.

Of particular interest to the Quill team was Talita’s explanation of the kind of materials that make up travaux and how researchers currently access them. The term can encompass all the documents relevant to a treaty, such as earlier drafts, meeting records, press releases, proposals submitted by individual States or groups of States, studies (especially those making comparisons between different legal systems conducted during the drafting process), and resolutions of law-making bodies. The value of travaux varies greatly; an expression of agreement counts for much more than a statement by an individual State. Talita noted that the main reason for the limited use of travaux is their relative inaccessibility. While the material relating to the International Criminal Court is fairly navigable, documents held by the United Nations are much harder to find as it is generally necessary to search for a particular document reference number. (The University of Virginia has, however, compiled a more useable database of some of these documents.)

The final presentation of the day was a late addition to the programme in recognition of the current industrial action by members of the University and College Union. Sebastian Bates considered the extent to which the Permanent Court of International Justice and its successor, the International Court of Justice, had recourse to travaux in the interpretation of the Treaty of Versailles and the Charter of the United Nations in cases concerning the International Labour Organisation (ILO), which was established in 1919 by Part XIII of the Treaty. The Permanent Court delivered six advisory opinions on the ILO’s work between 1922 and 1932; although the Court made occasional reference to travaux, including material relating to the negotiations at the Paris Peace Conference, this was usually quite brief. On the other hand, the Court seemed willing to refer to travaux in circumstances that would not fall within the scope of Article 32 of the Vienna Convention today. For its part, when the International Court gave advisory opinions on judgments rendered by the ILO’s Administrative Tribunal in 1956 and 2012, it demonstrated an apparent preference for subsequent practice over travaux, which is arguably contemplated by Article 31(2)(b) of the Vienna Convention.

Dr Alfie Abdul-Rahman closed the event by thanking the presenters on behalf of the Quill Project. Matthew expressed his hope that funding will be forthcoming for the developments of tools of value to researchers and practitioners in the field of public international law. Talita noted that, if a Quill model made it easier to compare the various texts of a treaty adopted in several languages, this could make it easier to rely on Article 33 of the Vienna Convention, which is an underused tool of interpretation.

Negotiated Texts