VCLT Flashcards
Two most important provisions in the VCLT
Art. 31 and 32
31: General rule of interpretation
32: Supplementary means of interpretation
How can Art. 31 VCLT be summarized (4)
1) Ordinary meaning in good faith
2) Context and purpose
3) Context and subsequent agreements + rules of international law
4) Special meaning
Art. 31(2) VCLT mentions annexes and preambles for context and purpose, what is the difference?
annexes include binding obligations
preambles do not contain binding obligations.
Art. 31(2) VCLT is for context and purpose, what two subparagraphs does it have?
a) Any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty
b) 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.
For context and purpose, Art. 31(2) VCLT contains the following provisions:
a) Any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty
b) 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.
What is factor is important for the consideration of these provisions?
What is an example of a) and b)?
Time. The documents have to stem from around the time the treaty was concluded.
a) Annex or side agreement.
b) Instrument of ratification (sometimes contain some comments).
Art. 31(3) VCLT states that together with the context, the following 3 subparagraphs should be taken into account. Which are they? Which one is the most important in practice?
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
c) is the most important one (general principles and customary international law)
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
Art. 31(3) VCLT. Under NAFTA, would (absent an interpretation mechanism in the treaty) a joint statement fall under a) or b)?
b)
a) was not accepted because it did not go through the proper procedures (ratification etc.).
What is the professor’s criticism on Art. 31(3) VCLT.
The provision mentions context but does not really have anything to do with context. Context is in subparagraph (2).
Is supplementary means of interpretation a clearly defined category?
No. It includes preparatory work of the treaty and the circumstances of the conclusion, but is not exhaustive.
What is the goal of Art. 32 VCLT?
To confirm the meaning resulting form the application of Art. 31 or to determine the meaning.
Under what conditions can Art. 32 VCLT be applied?
a) When the meaning is ambiguous or obscure.
b) When the meaning leads to a result that is manifestly absurd or unreasonable.
Art. 32 VCLT mentions “the circumstances of the conclusion,” what could be meant with that?
For example the treaties that were concluded during the soviet union. Economic, political, social situation mattered.
What three general principles can be adduced for interpretation under Art. 31(3)(c) VCLT?
Ejusdem Generis: This Latin phrase means “of the same kind” or “of the same class.” The ejusdem generis rule is used when a general word or phrase follows a list of specific terms in a treaty or legal document. It dictates that the general term should be interpreted to include only things of the same kind or class as those specifically mentioned. This principle helps to ensure that the scope of the general term is not overly broad and remains consistent with the specific examples provided.
Expressio Unius Est Exclusio Alterius: Translated as “the expression of one thing is the exclusion of the other,” this principle guides interpretation by suggesting that when a treaty explicitly mentions certain things, it implies the exclusion of others not mentioned. In other words, if a treaty enumerates specific rights, powers, or obligations, it is presumed that those not explicitly included were intentionally left out. This principle helps to avoid expansive interpretations and clarifies the scope of what is covered by the treaty.
Principle of Effectiveness (Effet Utile): This principle requires that treaties be interpreted in a way that gives every provision meaningful effect. It emphasizes that treaty provisions should not be interpreted in isolation but rather in the context of the entire treaty to achieve its intended purpose and objectives. The principle of effectiveness ensures that the treaty operates coherently and efficiently, promoting the fulfillment of its underlying purposes without rendering any provision superfluous.
How does jus cogens set a limit to treaties (and their interpretation)?
Voidance of Conflicting Treaties: According to Article 53 of the Vienna Convention on the Law of Treaties (VCLT), any treaty that conflicts with a norm of jus cogens is considered void ab initio (from the beginning). This means that states cannot validly enter into treaties that violate jus cogens norms. If such a conflict is identified, the treaty is invalid and has no legal effect.
Interpretative Guidance: Jus cogens norms provide interpretative guidance for treaties. When interpreting treaties, states and international courts and tribunals must ensure that their interpretation aligns with established jus cogens norms. This ensures that treaty provisions are understood and applied in a manner consistent with fundamental principles of international law.
Legal Obligations: Jus cogens norms establish legal obligations that are non-derogable and binding on all states. These norms typically encompass principles such as the prohibition of genocide, torture, slavery, crimes against humanity, and aggressive war. States cannot invoke provisions of a treaty to justify actions that would violate these norms.
Article 31(3)(c) and “Systemic Integration” - what is systemic integration and what are the positive and negative effects according to Campbell McLachlan?
The principle of systemic integration “may be articulated as a presumption with both positive and negative aspects:
(a) negatively that, in entering into treaty obligations, the parties intend not to act inconsistently with generally recognized principles of international law or with previous treaty obligations toward third states; and
(b) positively that the parties are to taken ‘to refer to general principles of international law for all questions which [the treaty] does not itself resolve in express terms or in a different way.
