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The Travaux Préparatoires of the Vienna Convention on the Law of Treaties

Published online by Cambridge University Press:  28 March 2017

Herbert W. Briggs
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Extract

The fundamental importance of the codification of the law of treaties by the International Law Commission and the Vienna Conference will gain increasing recognition as the rules and principles embodied in the 1969 Vienna Convention on the Law of Treaties are applied in the practice of states and the jurisprudence of international tribunals. Inevitably the records of this great codification will be searched and researched, by scholars as well as by legal advisers, and for a variety of reasons: What is the function of a particular rule? What r61e was it designed to play in the relations of states and in the international legal community? What does it require in the way of performance or abstention? Is it a residual rule, binding upon states if no other solution is agreed on? Why was the rule given the particular formulation found in the Vienna Convention,and what alternative formulations were rejected? Since the entry into force of the Vienna Convention will be delayed until after thirty-five states have ratified or acceded to it (Article 84), what assessment of the general acceptability of a particular provision can be gained from a study of the drafting record or from the number of affirmative or negative votes or abstentions?

Type
Research Article
Information
American Journal of International Law , Volume 65 , Issue 5 , October 1971 , pp. 705 - 712
Copyright
Copyright © American Society of International Law 1971

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References

1 A/CN.4/Ser. A, published in two annual volumes except for 1949, Vol. I containing the summary records of a particular session, and Vol. II, the supporting documents and the annual Report of the International Law Commission.

2 The Summary Records of the Sixth Committee should be examined in relation to the agenda items on the work of the International Law Commission.

3 United Nations Conference on the Law of Treaties, First Session, Vienna, 26 March- 24 May 1968, Official Records, Summary Records of the 1st to 83rd meetings of the Committee of the Whole, and of the 1st to 5th Plenary Meetings. A/Conf.39/11. pp. xxxii, 493. $6.50. United Nations Conference on the Law of Treaties, Second Session, Vienna, 9 April- 22 May 1969, Official Records, Summary Records of the 84th to the 105th meetings of the Committee of the Whole, and of the 6th to 36th Plenary Meetings. A/Conf. 39/11/Add. 1. pp. xxiv, 350. $4.50. United Nations Conference on the Law of Treaties, First and Second Sessions, Vienna, 26 March-24 May 1968 and 9 April-22 May 1969, Official Records, Documents of the Conference. A/Conf.39/II/Add. 2. pp. viii, 303. $4.00.

4 The Chinese and Russian versions of the Vienna Convention are equally authentic “texts” with the English, French, and Spanish versions (Art. 85), but are in fact translations prepared by the secretariat, although there was always a Russian member on the Drafting Committee of the Commission and of the Conference. Cf.Rosenne,op. cit.70.

5 4 Cornell International Law Journal 1 (1970).

6 1966 I.L.C. Yearbook (I, Part II) 201, par. 35. Cf.Rosenne, op. cit.37, note 19.

7 Art. 31 reads as follows (Rosenne, op. cit.214): General rule of interpretation

8 Ibid.216, Art. 32.

9 Ibid.216, 219.

10 I.L.C. Report on the Work of Its 18th Sess., 1966 I.L.C. Yearbook (II) 223; 61 A.J.I.L. 359-360 (1967).

11 United Nations Conference on the Law of Treaties, First Session, Vienna, 26 March-24 May 1968, Official Records 166-185. Cf.also 74th meeting, May 16, 1968, ibid.441-442.

12 Ibid 167-168McDougal's statement, 62 A.J.I.L. 1021-1027 (1968). Cf.Leo Gross, “Treaty Interpretation: The Proper Role of an International Tribunal,” 1969 Proceedings, American Society of International Law 108-122; I. M. Sinclair, “The Vienna Conference on the Law of Treaties,” 19 Int. and Comp. Law Q. 47, at 60-66 (1970). The United States proposal (A/Conf.39/C.1/L.156, April 10, 1968, Vienna Conference, Official Records, III, p. 149) reads as follows: “Amend article 27 to read as follows: “A treaty shall be interpreted in good faith in order to determine the meaning to be given to its terms in the light of all relevant factors, including in particular: (a) the context of the treaty; (b) its objects and purposes; (c) any agreement between the parties regarding the interpretationof the treaty; (d) 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; (e) any subsequent practice in the application of the treaty which establishes the commonunderstanding of the meaning of the terms as between the parties generally; (f) the preparatory work of the treaty; (g) the circumstances of its conclusion; (h) any relevant rules of international law applicable in the relations between the parties; (i) thespecial meaning tobe given to a term if the parties intended such term to have a special meaning.“ “Delete article 28.“

13 Vienna Conference, he. cit.,Official Records, 1968, p. 170.

14 Ibid184, pars. 67-69.

15 Ibid.178, par. 10.

16 The text of the United States proposal (above, note 12) appears to have been based verbatim (except for the addition of sub-paragraphs (d), (h), and (i)) on the proposal made by the writer to the International Law Commission at its 870th meeting on June 15, 1966. In introducing the proposal, the writer explicitly stated that it was “to the text that the interpreter should first look rather than to the intention of the parties, which was a subjective element distinct from the text itself'; adding: “If his suggestion were adopted, the text would retain its basic importance as the authentic expression of the intentions of the parties, but nothing that might throw light on the meaning of its terms would be excluded… .” 1966 I.L.C. Yearbook (I, Part II) 187, pars. 30, 35, 37; ibid.,873rd meeting, June 20, 1966, p. 203.

17 The October, 1967, issue of this Journal, which contained, inter alia,McDougal's slashing attack on “The International Law Commission's Draft Articles upon Interpretation: Textuality Redivivus”(61 A.J.I.L. 992), had been distributed to all delegations to the Vienna Conference on the Law of Treaties.

18 G.A. Res. 2166 (XXI), Dec. 5, 1966, par. 7; Rosenne, op. cit.93.

19 Cf.Leo Gross, toe. cit.117; Kearney, Richard D. and Dalton, Robert E., “The Treaty on Treaties,” 64 A.J.I.L. 495, at 520 (1970).Google Scholar Cf. Surya P.Sharma, , “The ILC Draft and Treaty Interpretation with Special Reference to Preparatory Works,” 8 Indian Journal of International Law 367-398 (1968).Google Scholar