The Vienna Convention on the Law of Treaties

The Vienna Convention on the Law of Treaties

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The meaning of treaty law must be established autonomously from domestic law, and interpretation rules can therefore be found only in international law. Two means of interpretation relevant for the present study are identified by Article 38(d) of the Statute of the International Court of Justice: “judicial decisions and the teachings of the most highly qualified publicists of the various nations”. The Statute labels them as “subsidiary means for the determination of the rules of law”, which implies that they are not sources of law, but rather serve as means to clarify the obligations flowing from treaty law, customs and principles.

For the interpretation of treaty law, Articles 31, 32 and 33 of the Vienna Convention on the Law of Treaties (henceforth also: Vienna Treaty Convention or VTC) provide for interpretation rules.51 In their quality as treaty law, they apply only to States party to the Vienna Treaty Convention, i.e. to only 20 out of the 25 Member States, and only to treaties concluded after the entry into force of the Convention in 1980, which excludes application to the Refugee Convention, the European Convention of Human Rights and the Covenant on Civil and Political Rights. But the interpretation rules in Articles 31, 32 and 33 VTC are generally seen as a codification of customary law. States not party to the Vienna Treaty Convention are therefore bound to apply identical rules. Hence, Articles 31, 32 and 33 VTC can be safely applied to all instruments of international asylum law.

Article 31 and 32 VTC list the means of interpretation. Article 31 runs as follows:

General rule of interpretation
1. 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.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty; (b) any instrument which was 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.
3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.

First of all, a treaty should be interpreted “in good faith”. As interpretation by Contracting States is part of the performance under the concerned treaty, assessment of its meaning should be in accordance with the principle pacta sunt servanda. Hence, if interpretation of a provision in accordance with text, object and purpose and other means mentioned in Article 31 VTC leads to manifestly absurd or unreasonable results when applying the provision, another interpretation should be sought.56 The “general rule of interpretation” further states that interpretation should be based on text, object and purpose, the context, including agreements and instruments concluded “in connection” with the treaty, as well as later agreements among and state practice of the Contracting States, and relevant rules of international law.

Should we assume that a strict hierarchical order prevails among these various means, in the sense that context, object and purpose should be addressed only in case the ordinary meaning does not yield a clear result?The text of Article 31(1) does not imply a strict distinction; rather, it suggests that the ordinary meaning can be established only within the context and in the light of its object and purpose. Elias points out that the four main elements mentioned in Article 31(1) – (3) VTC (i.e. ordinary meaning, context, object and purpose, subsequent agreements and practice between the states party to the treaty and applicable general rules of international law),
“are not to be regarded as hierarchical, but are to be applied as an integrated or interdependent whole. It contains a statement of the elements in a general rule, not series of rules. The use of the word “context” in all three paragraphs of the Article is designed to emphasize this integrated scheme”.

The case law by the International Court of Justice confirms this approach :
“The rule of interpretation according to the natural and ordinary meaning of the words employed “is not an absolute one. Where such a method of interpretation results in a meaning incompatible with the spirit, purpose and context of the clause or instrument in which the words are contained, no reliance can be validly placed on it."

Thus, the interpretation does not stop when a meaning compatible with the wording is reached: this meaning has to be put against the background of the object and purpose of the treaty concerned. The International Court of Justice further has clarified that
“[…] in accordance with customary international law, reflected in article 31 of the 1969 Vienna Convention on the Law of Treaties, a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose. Interpretation must be based above all upon the text of the treaty. As a supplementary measure recourse may be had to means of interpretation such as the preparatory work of the treaty and the circumstances of its conclusion.”

So, emphasis should be put on the text of the treaty. This does not imply a preference for the ordinary meaning above interpretation to object and purpose, as object and purpose are mostly explicitly laid down in treaties (for example, in the preamble). Indeed it is hard to see how a term can be attributed any specific meaning at all out of its context, or what the ordinary meaning is. In fact, it may often work the other way: a provision whose terms have a very clear ordinary meaning, may turn out to have an unclear meaning if read in its context. The very determination of the clarity of the result attained by reading a provision to its ordinary meaning involves the context as well as the object and purpose of the provision.

The Refugee Convention, the Covenant on Civil and Political Rights, the Convention Against Torture as well as the European Convention on Human Rights are laid down in more than one language version, which are equally authentic. Each of those texts has legal force, and their terms are presumed to have the same meaning; in principle, the rules laid down in Articles 31 and 32 apply. Thus, if the meaning of a provision is unclear in one authentic text, the terms of another text may be clearer. If however comparison of authentic texts discloses a conflict that the application of Articles 31 and 32 VTC does not solve, “the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted”.

In sum, the Vienna Convention on the law of Treaties as well as the decisions by the International Court of Justice support the distinction between the “general means of interpretation” on the one hand and the “supplementary means” on the other. They do not indicate a hierarchical distinction among the general means of interpretation, mentioned in Article 31 VTC.

The material discussed above allows for three observations on interpretation. First, “the primary necessity of interpreting an instrument in accordance with the intentions of the parties”. This principle explains the distinction between general means and supplementary means: the contracting parties did not express consent to be bound as to the latter. It follows, secondly, that “interpretation must be based above all upon the text of the treaty”, including context and object and purpose as laid down in the treaty: they express the consensus of the contracting parties. Third, interpretation must be consistent with the entire legal system at the time of the interpretation.

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