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The International Law Commission’s Draft Articles upon Interpretation: Textuality Redivivus

Published online by Cambridge University Press:  28 March 2017

Myres S. McDougal
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Abstract

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Type
Editorial Comment
Information
American Journal of International Law , Volume 61 , Issue 4 , October 1967 , pp. 992 - 1000
Copyright
Copyright © American Society of International Law 1967

References

1 The draft articles we criticize appear in Report of the International Law Commission, U.N. General Assembly, 21st Sess., Official Records, Supp. No. 9 (U.N. Doc. A/ 6309/Rev. 1) (1966), hereinafter referred to as “Report“ reprinted in 61 A.J.I.L. 248 (1967).

2 Report at 49.

3 Ibid, at 51.

4 Ibid, at 52. What is ignored by the Court and the Commission is that a failure to apply an agreement because of some alleged verbal gap or inadequacy in the text may be equally a “revision” of the genuine shared expectations of the parties.

5 lbid. at 50.

6 IMd.

7 Ibid.

8 Ibid.

9 Ibid. at 49.

10 Ibid

11 lbid. at 51. Cf. Rosenne, “Interpretation of Treaties in the Restatement and the International Law Commission's Draft Articles: A Comparison,” 5 Columbia Journal of Transnational Law 205, at 221 (1966): “The way the material is presented in articles 27 and 28 is designed to stress the dominant position of the text itself in the interpretation process, the material running in sequences from the text to related elements lying outside the text.” The context makes clear that “object and purpose,” mentioned in the very first section of Art. 27, are regarded as part of the “ text “ and not of “related elements” lying outside the text. It may be recalled that Professor Rosenne is a member of the International Law Commission.

12 Report at 50.

13 Ibid, at 51, 49.

14 Ibid, at 49.

15 Ibid, at 52, 53.

16 Ibid, at 53. In a more explicit postulation of the goals of interpretation the Commission would have had to consider, beyond responsible effort to ascertain the content of the genuine shared expectations of the parties, the necessity, in any particular application of an agreement, both for supplementing incomplete and vague expectations by recourse to basic community policies and for appraising even genuine expectations for their compatibility with such policies. The Commission might have sought a more careful correlation of its principles of interpretation with its provision for jits cogens in Art. 50.

17 Ibid, at 49.

18 Ibid, at 53.

19 Ibid, at 49.

20 Ibid. at 54.

21 Ibid. at 51. It is difficult to understand why preparatory work is less “objective evidence of the understanding of the parties” than subsequent practice.

22 Cf. Rosemie, note 11 above, at 222: “ I n particular, it is our view that the formal limitation on the permission to employ what the Commission has entitled ‘supplementary means of interpretation’ in article 28 is artificial and has no basis either in practice or in law, and certainly cannot be supported by such international jurisprudence as there is on this question.''

23 Cf. Professor Briggs, speaking as a member of the Commission and recommending deletion of the concept, in 1966 I.L.C. Yearbook (I), Pt. II, at 188: “Such an approach would also have the advantage of deleting all reference to the ‘ordinary’ meaning, a term which he found just as objectionable as the former reference to the ‘natural'meaning. Words had no ordinary or natural meaning in isolation from their context and the other elements of interpretation.” The difficulties that other members of the Commission found with the concept are broadcast in the same volume. See, for example, pp. 189, 191, 194, 195, 196. Mr. Reuter at 194 is especially sharp in reference to the contradictions in the Commission's usage. These difficulties were cogently anticipated by Professor Hyde. In 2 International Law Chiefly as Interpreted and Applied by the United States at 1470 (1945), he wrote: “Accordingly, one must reject as an unhelpful and unscientific procedure the endeavor to test the significance of the words employed in a treaty by reference to their socalled ‘natural meaning’ or any other linguistic standard, and then to attempt to reconcile therewith the thought or conduct of the contracting parties. Such a method involves the implication that those parties must be deemed to have employed words in a sense that usage may have decreed, even though contrary to their common design. It transforms the function of the interpreter from a fact-probing endeavor to ascertain the actual sense in which the parties used the words of their choice, to an effort to find what usage appears to decree as to the significance of those words, and thereupon to reconcile the conduct of the parties therewith. In so far as the interpreter essays to make that effort he is diverted from the task of ascertaining the truth concerning the design of the parties as exemplified by the text of their agreement, and endangers the success of such an attainment.“

24 Sixth Report, U.N. Doc. A/CN.4/186/Add. 6 at 11.

25 Ilid.

26 1964 I.L.C. Yearbook (I) at 280. Cf.R osenne, note 11 above, at 219: “Sir Humphrey appears to have regarded ‘interpretation’ as the process by which, in oases of doubt only, the correct meaning of the treaty is to be established. For that process and having that objective, the text to which the parties had set their hands constituted the only point of departure; not an investigation into the objectives which prompted them to subscribe to that text, or more teleological concepts having in mind the presumed objectives of the treaty.“

27 Herbert, Bardot M.P.? and Other Misleading Cases at 167-168 (1964).

28 Cf. Professor Ago in 1966 I.L.C. Yearbook ( I ) , Pt. II , at 189: “ T h e expression ‘ordinary meaning’ had been criticized. He agreed that no term had an inherent meaning, and that the meaning always depended on usage. That was why it was essential to use terms as far as possible in the sense in which they were customarily used, which was what was understood by their ‘ordinary meaning’ ”. I t may be noted that even this conception is not “objective” in the sense that it escapes inquiry about subjectivities. For the subjectivities of the particular parties to an agreement, it merely substitutes the subjectivities of the members of the larger community. The important question is by what indices inquiry is to be made about both kinds of subjectivities; they are not necessarily equivalent in the particular instance. Despite its emphasis upon the “ordinary meaning” of text, the Commission cannot of course escape references to the intent of the parties. In addition to the tail-end reference in the concluding words of Art. 27 itself, there are many other instances in the proposed convention. I am indebted to Professor Frank Newman for the following itemization: Sees. 6 (1) (b), 24, 25, 31-33, 53, 56 (1) (a) and (2); also (in the guise of “object and purpose“) 16 (c), 17 (2), and 55 (b). Unfortunately, the brief flash of insight in the words “ t h e intention underlying the t r e a t y “ (Report at 23) does not seem often to recur.

29 This ancient wisdom, confirmed by contemporary communication studies, was put into epigrammatic form by Mr. Justice Holmes in Towne v. Eisner, 245 U.S. 418, 425 (1918): “ A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.“

30 The Commission itself purports to reject the notion of a hierarchy among the “elements of interpretation” it itemizes in Art. 27, but it does not carry this insight into its presentation of the allegedly “supplementary” elements in Art. 28, and its pervasive emphasis upon textuality qualifies even the modest insight asserted in relation to Art. 27. report at 51. Cf. the appraisal by Lissitzyn in ‘ ‘ The Law of International Agreements in the restatement,” 41 N.Y.TJ. Law Rev. 96, 108 (1966).

31 If a dominant policy purpose of the Commission is, as a recurrent reference to “good faith” and “Pacta sunt servanda” might suggest, to preclude spurious or fraudulent interpretation, surely its overwhelming emphasis upon a single variable—the text—in the larger factual context is not the best instrumentality to its end. An open-eyed, systematic exploration of all relevant features of the context would appear to promise much the more effective protection against spurious and fraudulent claims. It is entirely gratuitous to assume that a departure in interpretation from somebody's notion of “ordinary meaning” is fraud.

32 Cf. Waldock, Sixth Report, U.N. Doc. A/CN.4/L.116/Add. 18 at 8: “In a sense, all ‘rules’ of interpretation have the character of ‘guide lines’ since their application in a particular case depends so much on the appreciation of the context and the circumstances of the point to be interpreted.” There can of course be no comprehensive presentation or systematic ordering of principles in the absence of a clear postulation of goals for interpretation. The goal of “textuality“—with its deference to mere “shapes on paper“—yields no criteria for either identifying or organizing principles. The goal of seeking to approximate the genuine shared expectations of the parties to a particular agreement offers, in contrast, the criteria of potential relevance to communication (the factors that are commonly found to affect the mediation of subjectivities). The differences between a bare textual and a genuinely contextual approach to interpretation are, hence, not merely in goals sought but also in the range of factors made relevant and the procedures recommended for inquiry.

33 Cf. Liacouras, ‘ ‘ The International Court of Justice and Development of Useful ‘Rules of Interpretation’ in the Process of Treaty Interpretation,” 1965 Proceedings, American Society of International Law 161.

34 For documentation, see McDougal, Lasswell, and Miller, The Interpretation of Agreements and World Public Order: Principles of Content and Procedure (1967). The Commission formulations are based more upon what the International Court of Justice has said than upon what it has done, and ignore much other practice and opinion.

35 Harvard Research in International Law, Law of Treaties, 29 A.J.I.L. Supp. 653 at 937 (1935), Art. 19. The American Law Institute, Eestatement of the Law (Second), The Foreign Relations Law of the United States (1965) at 449, Art. 146, builds upon this model: “The primary object of interpretation is to ascertain the meaning intended by the parties for the terms in which the agreement is expressed, having regard to the context in which they occur and the circumstances under which the agreement was made. This meaning is determined in the light of all relevant factors.” In the section which follows, a wide range of “criteria” for interpretation is itemized and no advance priorities in relevance are established among such criteria.