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The Travaux of Travaux: Is the Vienna Convention Hostile to Drafting History?

  • Julian Davis Mortenson (a1)

Extract

It is often asserted that the Vienna Convention on the Law of Treaties (VCLT) relegates drafting history to a rigidly subsidiary role in treaty interpretation. Many commentators go so far as to suggest that the VCLT entrenches a categorical prejudice against travaux préparatoires (travaux)—the preparatory work of negotiation, discussions, and drafting that produces a final treaty text. Because of this alleged hostility to history as a source of meaning, the conventional wisdom is that when an interpreter thinks a text is fairly clear and produces results that are not manifestly unreasonable or absurd, she ought to give that prima facie reading preclusive effect over anything the travaux might suggest to the contrary.

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1 Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 UNTS 331, available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf. The main provisions on interpretation are Article 31 and 32:

Article 31: General rule of interpretation

  1. 1.

    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. 2.

    2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

    1. (a)

      (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;

    2. (b)

      (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.

  3. 3.

    3. There shall be taken into account, together with the context:

    1. (a)

      (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

    2. (b)

      (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

    3. (c)

      (c) any relevant rules of international law applicable in the relations between the parties.

  4. 4.

    4. A special meaning shall be given to a term if it is established that the parties so intended.

    1. (a)

      (a) leaves the meaning ambiguous or obscure; or

    2. (b)

      (b) leads to a result which is manifestly absurd or unreasonable.

2 This article draws on published sources and unpublished or microfiche archival material, including minutes from meetings of the Institut de droit international, the International Law Commission, the UN General Assembly in both its plenary and Sixth Committee sessions, and the Vienna Conference itself; internal memorandums and other documents circulated at each of those institutions; and proposed drafts and amendments that were submitted throughout the process.

3 Abi-Saab, Georges, The Appellate Body and Treaty Interpretation, in Treaty Interpretation and the Vienna Convention on the Law of Treaties: 30 Years on 99, 104–05(Fitzmaurice, Malgosia, Elias, Olufemi & Merkouris, Panos eds., 2010).

4 Vandevelde, Kenneth J., Treaty Interpretation from a Negotiator’s Perspective, 21 Vand. J. Transnat’l L. 281, 296 (1988) (“hierarchy” of interpretation); see also, e.g., Restatement (Third) of the Foreign Relations Law of the United States §325 cmt. e (“inhospitality to travaux”); cf. Wintershall Aktiengesellschaft v. Argentina, ICSID Case No. ARB/04/14, Award, para. 86 (Dec. 8, 2008) (quoting testimony of Christoph Schreuer) (“[M]y predecessor in the chair in Vienna, Professor Zemanek used to fail students when they gave the answer that the intention of the parties was significant for the interpretation of treaties.”).

5 Sbolci, Luigi, Supplementary Means of Interpretation, in The Law of Treaties Beyond the Vienna Convention 145, 147 (Cannizzaro, Enzo ed., 2011); see also, e.g., Bouthillier, Yves le, Article 32: Supplementary Means of Interpretation, in 1 The Vienna Conventions on the Law of Treaties: A Commentary 841, 843 (Corten, Olivier & Klein, Pierre eds., 2011) (describing the VCLT’s “hierarchical” structure); Jean-Marc Sorel & Valérie Boré Eveno, Article 31: General Rule of Interpretation, in 1 The Vienna Conventions on the Law of Treaties: A Commentary, supra, at 804, 817 (“hierarchy” of VCLT “implies that the supplementary means are first and foremost subsidiary”); Dörr, Oliver, Article 32: Supplementary Means of Interpretation, in Vienna Convention on the Law of Treaties: A Commentary 571, 571–72 (Dörr, Oliver & Schmalenbach, Kirsten eds., 2012) (“restrictive design of Art 32”).

6 Isabelle Van Damme, Treaty Interpretation and Preparatory Work, Opinio Juris (Mar. 2, 2009), at http://opin iojuris.org/2009/03/02/treaty-interpretation-and-preparatory-work/.

7 Arsanjani, Mahnoush H. & Reisman, W. Michael, Interpreting Treaties for the Benefit of Third Parties, 104 AJIL 597, 598 (2010) (criticizing excessive use of travaux).

8 Ulf Linderfalk, On the Interpretation of Treaties 239 (2007); see also Linderfalk, Ulf, Is the Hierarchical Structure of Articles 31 and 32 of the Vienna Convention Real or Not?, 54 Neth. Int’l L. Rev. 133, 144 (2007) (“[C]larity, in the sense of the Vattelian maxims, means clarity prima facie justified.”).

9 le Bouthillier, supra note 5, at 843; see also David J. Bederman, Classical Canons: Rhetoric, Classicism and Treaty Interpretation 315 (2001) (similar); Sorel, supra note 5, at 818 (similar).

10 BEDERMAN, supra note 9, at 241 & n.854.

11 Orakhelashvili, Alexander, The Recent Practice on the Principles of Treaty Interpretation, in 40 Years of the Vienna Convention 117, 151 (Orakhelashvili, Alexander & Williams, Sarah eds., 2010).

12 MARK E. VILLIGER, COMMENTARY ON THE 1969 VIENNA CONVENTION ON THE LAW OF TREATIES 446–47 (2009) (“[A] result arrived at by the use of primary means of Article 31 will always prevail over solutions suggested by the supplementary means.”); Criddle, Evan, The VCLT in U.S. Treaty Interpretation, 44 VA. J. Int’l L. 431, 440 (2004) (similar); Villiger, Mark E., The Rules on Interpretation: Misgivings, Misunderstandings, Miscarriage?, in The Law of Treaties beyond the Vienna Convention, supra note 5, at 105, 113 (similar); Merkouris, Panos, ‘Third Party’ Considerations and ‘Corrective Interpretation’ in the Interpretative Use of Travaux Préparatoires:—Is It Fahrenheit 451 for Preparatory Work?—, in Treaty Interpretation and the Vienna Convention on the Law of Treaties: 30 Years On, supra note 3, at 75, 75–77 (similar).

13 Jan Klabbers, Interpretation as the Continuation of Politics by Other Means, Opinio Juris (Mar. 2, 2009), at http://opiniojuris.org/2009/03/02/continuation/; see also Klabbers, Jan, The Declining Importance of Travaux Préparatoires in Treaty Interpretation, 2003 Neth. Int’l L. Rev. 267, 268, 285 (2003) (similar).

14 For decisions plausibly presenting this phenomenon, see, for example, Young v. United Kingdom, App. Nos. 7601/76 & 7806/77, 44 Eur. Ct. H.R. (ser. A) (1981); Maritime Delimitation and Territorial Questions (Qatar v. Bahr.), 1995 ICJ REP. 4 (Feb. 15); Territorial Dispute (Libya v. Chad), 1994 ICJ REP. 6 (Feb. 3).

15 For decisions plausibly presenting this phenomenon, see, for example, Panel Report, United States—Measures Affecting the Cross-border Supply of Gambling and Betting Services, WT/DS285/R (adopted as modified by Appellate Body Report, Apr. 20, 2005); Litwa v. Poland, App. No. 26629/95 (Eur. Ct. H.R. Apr. 4, 2000); Hrvatska Elektroprivreda d.d. v. Republic of Slovenia, ICSID Case No. ARB/05/24 (June 12, 2009).

16 Bederman, supra note 9, at 246; see also, e.g., Reisman & Arsanjani, supra note 7, at 597 (similar).

17 Vandevelde, supra note 4, at 296.

18 See, e.g., Anthony Aust, Modern Treaty Law and Practice 244 (2d ed. 2007) (“This is no doubt how things work in practice[.]”); id. at 197; le Bouthillier, supra note 5, at 847 (similar); Criddle, supra note 12, at 440–42 (similar).

19 Schwebel, Stephen M., May Preparatory Work Be Used to Correct Rather Than Confirm the ‘Clear’ Meaning of a Treaty Provision?, in Theory of International Law At the Threshold of the 21St Century: Essays in Honour of Krzyszt of Skubiszewski 797, 799 (Makarczyk, Jerzy ed., 1996); cf. Maritime Delimitation and Territorial Questions, supra note 14, at 27 (Schwebel, J., dissenting).

20 Richard Gardiner, Treaty Interpretation 10 (2008); see also Gardiner, Richard, The Vienna Con vention Rules on Treaty Interpretation, in The Oxford Guide to Treaties 475, 500 (Hollis, Duncan B. ed., 2012) (discussing sub rosa judicial practice).

21 Gardiner, supra note 20, at 50; see also Gardiner, supra note 20, at 488. Others occasionally urge the adoption of a similar approach. See Aust, supra note 18, at 79 (“Placing undue emphasis on the text, without regard to what the parties intended..., is unlikely to produce a satisfactory result.”); James C. Hathaway, Rights of Refugees Under International Law 48–49, 55–58 (2005) (“There has for too long been an anachronistic fixation with literalism....”); Paul Reuter, Introduction to the Law of Treaties 74 –75 (1989) (similar); Dörr, supra note 5, at 571–72 (similar).

22 Gardiner, supra note 20, at 97–98; see also Gardiner, supra note 20, at 489 (“Thus, only when the general rule fails, or produces a manifestly questionable result, should primacy be given to preparatory work.”).

23 We might interpret the VCLT under (1) the modern customary international law of treaty interpretation, (2) the pre-VCLT customary international law of treaty interpretation, or (3) the VCLT framework itself. But that choice should not matter, since all of those frameworks allow the use of travaux to “determine” the meaning of “ambiguous” treaty terms. Under even the most restrictive approach, the “special meaning” and “confirmation” provisions of Articles 31 and 32 seem easily ambiguous enough to permit the use of travaux for this purpose.

24 See generally Mortenson, Julian Davis, The Uneasy Role of Precedent in Defining Investment, 28 ICSID REV. 1 (2013) (discussing the VCLT’s built-in tension between original understanding and evolving meaning).

25 See infra parts III–V for the historical evidence supporting the propositions asserted in this section.

26 See infra parts III–V for the historical evidence supporting the propositions asserted in this section.

27 Part of the reason they are so uncontroversial is that they are so salient. The “ambiguity” and “absurdity” routes are each called out in a separate subsection of Article 32. “Confirm,” by contrast, is stuck in the middle of a long paragraph of text in Article 32, and “special meaning” comes at the tail end of a complex and multilayered Article 31.

28 Views varied about how much uncertainty was required. For Hersch Lauterpacht, any disagreement about the meaning of a provision demonstrated its ambiguity. [1952] 1 Annuaire De L’institut De Droit International 222 (Siena session) (“un moyen légitime et désirable aux fins d’établir l’intention des parties dans tous les cas où, malgré sa clarté apparente, le sens d’un traité preˆte à controverse”). Some, at the other extreme, seemed ready to deny that ambiguity would ever exist in practice. E.g., United Nations Conference on the Law of the Treaties, 1st Sess., Vienna, Mar. 26–May 24, 1968, Summary Record at 174 (Poland) (Apr. 20, 1968), UN Doc. A/CONF.39/11 (1969) [hereinafter 1968 Vienna Conference Summary Records].

29 It was frequently said that the best evidence of common intent is generally the text adopted by the parties. This slogan seems to have originated in a letter from Eric Beckett to Hersch Lauterpacht. [1952] 1 Annuaire De L’institut De Droit International, supra note 28, at 199 –201 (“Le texte signé est, sauf de rares exceptions, la seule et la plus récente expression de la volonté commune des parties.”).

30 Such a failure might occur if a technically possible alternate meaning seemed so textually implausible to the interpreter that she was unwilling to view it as creating an “ambiguity” for the purpose of Article 32(a). It might also happen if the interpreter just missed something.

31 This third case is the principal instance where treaty text is shown to be thepresumptive, but notexclusive, target of analysis: once in a great while, the travaux may override the text entirely. The VCLT drafters were cautious about this use of absurdity.See, e.g., Humphrey Waldock (Special Rapporteur), Third Report on the Law of Treaties, Add. 3, at 15 (“strictly limited”), UN Doc.A/CN.4/167/Add.3 (1964) [hereinafter Waldock’s Third Report, Add. 3].

32 United Nations Conference on the Law of the Treaties, 2nd Sess., Vienna, Apr. 9–May 22, 1969, Summary Recordat 59(Ago) (May6,1969), UNDoc. A/CONF.39/11/Add.1(1970)[hereinafter1969 Vienna Conference Summary Records].

33 See, e.g., Draft Articles on the Law of Treaties and Commentaries at 20, 49, in Reports of the International Law Commission on the Second Part of Its Seventeenth Session and on Its Eighteenth Session, UN GAOR, 21st Sess., Supp. No. 9, at 20, 49, UN Doc. A/6309/Rev.1 (1966) [hereinafter ILC Commentary on Final Draft Articles]; see also Waldock’s Third Report, Add. 3, supra note 31, at 3–5 (similar).

34 Harvard Draft Convention on the Law of Treaties, 29 AJIL Supp. 778, 970 (1935); see also, e.g., id. at 937–38 (“the function of interpretation is to discover... what [a treaty’s] purpose is and how it may best be effectuated under prevailing circumstances”), 952–53 (similar).

35 E.g., Harvard Draft Convention on the Law of Treaties, supra note 34, at 938 (interpretation “is to be accomplished, not automatically by the mechanical and unvarying application of stereotyped formulae or ‘canons’ to any and every text”), 940–44 (including the presumption of ordinary grammatical effect in a long list of competing canons of construction).

36 [1952] 1 Annuaire De L’institut De Droit International, supra note 28, at 198 (“ce qui paraît être l’objet de la principale divergence de vues entre les membres de la Commission, à savoir l’usage des travaux préeparatoires“). For a good summary of the IDI debates, see 1956 Annuaire De L’ Institut De Droit International 320–21 (Granada session).

37 See, e.g., Nouveau projet définitif de résolutions présenté par M. H. Lauterpacht, rapporteur, in [1954] 1 Annu Aire De L’institut De Droit International 226 (Aix-en-Provence session) (“Dans le cas d’un défaut d’intention réelle chez les parties, il incombe aux organismes internationaux compétents, judiciaires ou arbitraux, de combler les lacunes qui en résultent et de résoudre les divergences conformément aux exigences fondamentales de la plénitude du droit et de la justice internationale et au but du traité.”).

38 “Le grand principe sur lequel reposait le projet présenté à Sienne était la recherche de l’intention des parties en tant que constituant le but principal de l’interprétation; le texte du traité à interpréter n’était plus qu’un des moy ens—un moyen trés important, il est vrai—d’y arriver.” 1956 Annuaire De L’institut De Droit International, supra note 36, at 321 (Fitzmaurice). This comment represents a somewhat overdrawn characterization of Lauterpacht’s draft, which gave text a more important role than Fitzmaurice admitted. See, e.g., [1952] 1 Annuaire De L’institut Dedroit International, supra note 28, at 225 (“L’accord des parties s’étant réalisé sur le texte du traité, il y a lieu de prendre le sens naturel de ce texte comme base du processus d’interprétation.”). That said, there is no question that Lauterpacht viewed travaux as a crucial element in treaty interpretation. See id. at 390–402 (Bath session); [1954] 1 Annuaire De L’institut De Droit International, supra note 37, at 207–16. Nor was Lauterpacht alone in that view. Petros Vallindas, for example, levied a notable attack on what he called Gerald Fitzmaurice’s radical “Ecole de l’exégése.” 1956 Annuaire De L’institut De Droit International, supra note 36, at 340.

39 While conceding that ICJ doctrine was at odds with his approach, Lauterpacht claimed that most of the institute, at least as of 1952, supported his views on interpretation. [1952] 1 Annuaire De L’institut De Droit International, supra note 28, at 205. Fitzmaurice claimed otherwise, and the fact of Fitzmaurice’s selection, the fact that Lauterpacht asked the institute to refrain from voting on his own proposal, and the substance of the final IDI draft tend to support his account. 1956 Annuaire De L’institut De Droit International, supra note 36, at 321.

39 Myres S. Mcdougal, Haroldd. Lasswell & James C. Miller, The Interpretation of Agreements and World Public Order: Principles of Content and Procedure, at xvii, xix–xx, 41 (1967) (emphasis omitted).

41 See, e.g., Fitzmaurice, Gerald, Vae Victis, or Woe to the Negotiators!: Your Treaty, or Our “Interpretation” of It?, 65 AJIL 358 (1971); Falk, Richard A., On Treaty Interpretation and the New Haven Approach, 8 VA. J. Int’l L. 343, 344 (1967) (“intellectual confrontation between the ILC and McDougal-Lasswell-Miller”); Rosenne, Shabtai, Interpretation of Treaties in the Restatement and the International Law Commission’s Draft Articles: A Comparison, 5 Colum. J. Transnat’l L. 205, 221 (1966) (“The reasons for [the structure of draft Articles 31 and 32] are very fundamental and can probably be traced to the strong influence of legal positivism... and to the great distrust of... what is sometimes called ‘teleological’ interpretation and other extra-textual approaches which at times lead to extravagant conclusions....”).

42 1949 Y.B. Int’l L. Comm’N 58–59; cf. (poignantly) Memoranda by the Secretary-General, Survey of International Law in Relation to the Work of Codification of the International Law Commission, para. 22, UN Doc. A/CN.4/1/Rev.1 (1949) (anticipating “no reason why in two decades or so of such activity the results of the work of the International Law Commission should not cover practically the entire field of international law”). The ILC initially consisted of fifteen experts—the number had grown to twenty-five by the early 1960s—who were intended to be “persons of recognized competence in international law and representing as a whole the chief forms of civilization and the basic legal systems of the world.” Establishment of an International Law Commission, GA Res. 174 (II) (Nov. 21, 1947). The experts were elected by the General Assembly from a list of candidates nominated by UN member states. They served the ILC in their private capacities.

43 See, e.g., Sixth Committee, Summary Record of the 849th Meeting, at 60 (Iraq) (“Treaties had become the source, above all others, of international law, for the international community had undergone many changes and custom could no longer supply the rules of law required by the world....”), UN GAOR, 20th Sess., UN Doc. A/C.6/SR.849 (Oct. 13, 1965); Sixth Committee, Summary Record of the 911th Meeting, at 59 (Pakistan) (similar), UNGAOR, 21st Sess., UN Doc. A/C.6/SR.911 (Oct. 17, 1966); Sixth Committee, Summary Record of the 977th Meeting, at 109 (Netherlands) (similar), UN GAOR, 22d Sess., UN Doc. A/C.6/SR.977 (Oct. 20, 1967).

44 Sixth Committee, Summary Record of the 847th Meeting, at 45 (Netherlands) (“If that stage were reached, the task of international lawyers would merely be to keep abreast of further developments, and no theoretical problems would remain to be solved. It would all be a matter of interpreting treaties and conventions, and the task of interpretation would itself be subject to rules of interpretation such as those contained in part III of the draft articles....”), UN GAOR, 20th Sess., UN Doc. A/C.6/SR.847 (Oct. 12, 1965).

45 E.g., UN GAOR, 21st Sess., 1484th mtg. at 10, UN Doc. A/PV.1484 (Dec. 5, 1966) (Tanzania) (“in effect,... the Law of Contract for the entire world.”); Sixth Committee, Summary Record of the 907th Meeting, at 33 (Yugoslavia) (“a new constitutional element”), UN GAOR, 21st Sess., UN Doc. A/C.6/SR.907 (Oct. 11, 1966); Sixth Committee, Summary Record of the 969th Meeting, at 67–68 (France) (“a veritable constitution” or “super-treaty”), UN GAOR, 22nd Sess., UN Doc. A/C.6/SR.969 (Oct. 12, 1967); Sixth Committee, Summary Record of the 971st Meeting, at 75 (Uruguay) (“the backbone of public international law...a task comparable to the formulation of a civil code and a procedural code in domestic law”), UNGAOR, 22nd Sess., UNDoc. A/C.6/SR.971 (Oct. 13, 1967).

46 1968 Vienna Conference Summary Records, supra note 28, at 289 (New Zealand) (May 3, 1968); see also, e.g., Sixth Committee, Summary Record of the 851st Meeting, at 76 (Ago, ILC chair) (“of the utmost importance”), UN GAOR, 20th Sess., UN Doc. A/C.6/SR.851 (Oct. 14, 1965); Sixth Committee, Summary Record of the 902d Meeting, at 11 (Czechoslovakia) (“the largest and most difficult task [that the ILC] had ever undertaken”), UN GAOR 21 st Sess., UNDoc.A/C.6/SR.902(Oct.3,1966); Sixth Committee, Summary Record of the 976th Meeting, at 102 (Canada) (“a major landmark”), UNGAOR, 22d Sess., UNDoc. A/C.6/SR.976 (Oct. 20, 1967); Sixth Committee, Summary Record of the 979th Meeting, at 117 (Bulgaria) (“fundamental issues of international law which had much broader significance and implications”), 118 (India)(“an outstanding achievement”), UNGAOR, 22d Sess., UN Doc. A/C.6/SR.979 (Oct. 24, 1967); Sixth Committee, Summary Record of the 980th Meeting, at 121 (Dahomey) (“even more important to the international community than the law of contracts was to a national community”), 126 (Cyprus) (“a turning-point in the history of international law”), UN GAOR, 22d Sess., UN Doc. A/C.6/SR.980 (Oct. 25, 1967).

47 Many observers worried that the doctrine of treaty interpretation might be not only too controversial, but too resistant to rationalization, to be codified. See, e.g., Waldock’s Third Report, Add. 3, supra note 31, at 3–9; [1964] 1 Y.B. Int’l L. Comm’n 275– 78, UNDoc. A/CN.4/SER.A/1964 (debate evincing broad skepticism about effort to codify treaty rules); Sixth Committee, Summary Record of the 850th Meeting, at 64 (Finland) (similar), UN GAOR 20th Sess., UNDoc.A/C.6/SR.850(Oct.13,1965).When a draft convention was finally introduced, Waldock thus emphasized that the “first question to be decided by the Commission was whether its draft should contain articles on interpretation at all.” [1964] 1 Y.B. Int’l L. Comm’n, supra, at 275.

48 For a largely accurate summary of the tangled ILC history up to this point, see Humphrey Waldock’s first report (of six) to the ILC. Humphrey Waldock (Special Rapporteur), First Report on the Law of Treaties, at 4–12, UN Doc. A/CN.4/144 (Mar. 26, 1962); see also Rosenne, supra note 41, at 217–18.

49 E.g., Sixth Committee, Report of the International Law Commission on the Work of Its Fourteenth Session, at 17, UN Doc. A/5287 (Nov. 14, 1962) (in a document by the Sixth Committee on the work of the ILC, noting the ILC’s “waste of time” and emphasizing the “need to quicken the Commission’s preparatory work” by giving “its special Rapporteurs clear and precise instructions”); [1964] 1 Y.B. Int’l L. COMM’N, supra note 47, at 275 (members urging one another to “make their statements brief “ and expressing anxiety about the pace of discussion), 286–87 (Amado) (urging less academic caviling), 289–90 (Rosenne) (similar) (July 14, 1964).

50 Waldock’s Third Report, Add. 3, supra note 31, at 11.

51 Id. at 18 (a “subsidiary means of interpreting the text”).

52 Id. at 13 (quoting Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), Advisory Opinion, 1948 ICJ Rep. 57 (May 28)); see also id. at 14 (“[There are some] cases where either the natural and ordinary meaning of the terms in their context does not give a viable result or for one reason or another the meaning is not clear. In these cases, and in these cases only, it is permissible to fix the meaning of the terms by reference to evidence or indications of the intentions of the parties outside the ordinary sense of their words.”).

53 Id. at 7 (“[I]f the textual method of interpretation predominates, none of these approaches is exclusively the correct one, and.... there is a certain discretionary element also on this point.”); see also id. at 5–6 (“maxims of interpretation” are “for the most part, principles of logic and good sense valuable only as guides”).

54 See [1964] 1 Y.B. Int’l L. Comm’n, supra note 47, at 309 (Waldock) (explaining that the sort of “special meaning” he had in mind was that referenced by the Permanent Court of International Justice (PCIJ) in the Eastern Greenland case); see also Legal Status of Eastern Greenland (Den. v. Nor.), 1933 PCIJ (Ser. A/B) No. 53, at 34 (Apr. 5).

55 1956 Annuaire De L’institut De Droit International, supra note 36, at 346–47 (“Toutefois s’il est établi que les termes employés doivent se comprendre dans un autre sens, le sens naturel et ordinaire de ces termes est écarté.”). As rapporteur on the subject for the IDI, Lauterpacht had included a special meaning provision in his proposed draft resolution. See [1954] 1 Annuaire De L’institut De Droit International, supra note 37, at 225. When Fitzmaurice replaced Waldock as IDI rapporteur, he tried to sharply restrict resort to the provision. See 1956 Annuaire De L’institut De Droit International, supra note 36, at 337–38 (“Il n’y a lieu de s’écarter du sens naturel et ordinaire des dispositions du traité que s’il est établi que celles-ci doivent se comprendre dans un autre sens.”). Other members resisted, however. See, e.g., id. at 342 (Jessup) (“envisagée par [M. Fitzmaurice] d’une fac¸on beaucoup plus restrictive”). Fitzmaurice then backed off, and the IDI adopted a relaxed formulation. Id. at 348–49 (vote of 35-0, with 7 abstentions).

56 Waldock’s Third Report, Add. 3, supra note 31, at 16 (emphasis added).

57 Id.

58 E.g., [1964] 1 Y.B. Int’l L. Comm’n, supra note 47, at 275 (Briggs) (July 14, 1964), 282 (Ago) (July 15, 1964), 280 (Ago) (July 14, 1964), 286 (Yasseen) (July 15, 1964).

59 Id. at 276 (July 14, 1964) (Tabibi), 278 (Rosenne) (July 14, 1964), 283–84 (Rosenne) (July 15, 1964).

60 E.g., id. at 281 (de Luna) (July 14, 1964), 285 (de Luna) (July 15, 1964), 277 (Amado) (July 14, 1964), 279 (Bartosˇ) (July 14, 1964), 287 (Bartosˇ) (July 15, 1964); cf. id. at 279 (Tunkin) (July 14, 1964).

61 Id. at 276 (de Luna) (July 14, 1964).

62 Id. at 287 (Bartoˇs) (July 15, 1964).

63 Id. (Amado) (July 15, 1964).

64 Id. (Verdross) (July 15, 1964) (“[H]e shared Mr. Bartosˇ’s misgivings [about travaux]. They might perhaps be allayed by slightly amending the wording of article 71, paragraph 2 [governing the use of travaux]. Under article 70 auxiliary means could be used only in cases of doubt or if the ordinary meaning of a term did not lead to a reasonable interpretation[, a restriction that should be extended to travaux as well.]”).

65 Waldock later “recalled the instructions he had been given to strike out (a), (b), and (c) of his original draft article 71”—that is, the provisions allowing resort to travaux for the purpose of confirming, determining, and establishing a meaning in certain circumstances—and noted, in particular, that “some members... preferred that confirmation should not be mentioned.” Id. at 314 (Waldock) (July 17, 1964).

66 Waldock’s initial discussion of confirmation had been rather perfunctory, and appears to have been included principally to account for claims by some tribunals that they had referred to travaux solely to confirm their textual interpretation. Id. at 58 (Waldock) (July 17, 1964).

67 Id. at 309 (Waldock) (July 17, 1964) (“The Commission would also have to decide whether to retain article 72, dealing with terms having special meanings.... He personally thought that where a special meaning could be established by special evidence, it was very probable that the meaning would appear in the context of the treaty. In most cases in which a special meaning of a term had been pleaded, the tribunals appeared to have rejected the special meaning.”).

68 Id. (Waldock) (July 17, 1964).

69 Space does not suffice to discuss another important change that happened at this point: the draft’s promotion of subsequent practice to a position parallel to that of ordinary meaning, context, and object and purpose. Humphrey Waldock (Special Rapporteur), Sixth Report on the Law of Treaties, Add. 6, at 19, UN Doc. A/CN.4/186/ Add.6 (1966) [hereinafter Waldock’s Sixth Report, Add. 6]. This shift was generally approved by states, which likewise appreciated its significance. [1966] 1 Y.B. Int’l L. Comm’n, pt. 2, at 184 (Waldock) (June 14, 1966), UN Doc. A/CN.4/SER.A/1966 (1967).

70 [1964] 1 Y.B. Int’l L. Comm’n, supra note 47, at 313 (Yasseen) (July 17, 1964); see also id. at 314 (Yasseen) (July 17, 1964) (noting that under Waldock’s revised draft, “[t]here also remained the problem of what should be done if reference to the preparatory work showed that such an interpretation was not clear”).

71 Id. at 313 (Yasseen) (July 17, 1964).

72 Id. at 314 (Yasseen) (July 17, 1964).

73 Id. at 313 (Waldock) (July 17, 1964). Given how frequently such use is criticized today, Waldock’s embrace of travaux to demonstrate object and purpose is striking.

74 See supra text accompanying note 64.

75 [1964] 1 Y.B. Int’l L. Comm’n, supra note 47, at 313 (Ago) (July 17, 1964) (suggesting that Yasseen’s concern be accommodated by providing that “recourse could be had to further means of interpretation, including those serving to confirm the interpretation resulting from the context”); id. (Briggs) (July 17, 1964) (“[A]s article [32] dealt with cases in which the meaning of a provision was ambiguous or in doubt, a second paragraph cou[l]d be added to the effect that the same method could be used to confirm a meaning established by a textual approach”).

76 Id. (Ago) (July 17, 1964) (“[T]he text [should] provide that recourse could be had to further means of interpretation, including those serving to confirm the interpretation resulting from the context or to establish it, in cases where the interpretation according to article [31] would lead to an obscure meaning.”).

77 Id. (Ago) (July 17, 1964) (“[T]he second part of article [32] should come first, so that the text would [start rather than conclude by] provid[ing] that recourse could be had to further means of interpretation”).

78 Id. at 314 (Waldock)(July 17, 1964). A continuation of this exchange further clarified the point. Yasseen again observed that “reference to the preparatory work [could itself] show[] that... an interpretation [of the text] was not clear,” and Waldock tacitly conceded the point while noting that “the same obscurity might well be found in the preparatory work,” too. Id. (Waldock) (July 17, 1964).

79 Id. (Bartoˇs) (July 17, 1964).

80 Id. at 313 (de Luna) (July 17, 1964) (“supported the Chairman’s suggestion”).

81 Id. at 314 (Ruda) (July 17, 1964).

82 Id. (Rosenne) (July 17, 1964) (“[I]t would be going too far to undertake to say both when recourse could be had to preparatory work and other further means of interpretation and for what purpose. He preferred to deal with the ‘when’ aspect, as there was a large element of fiction in the confirmation doctrine as advanced by many inter national tribunals.”).

83 Id. (Tunkin) (July 17, 1964) (“[I]t might be wiser to avoid excessive detail and not to indicate the purposes for which the preparatory work should be used. It would be sufficient to state that it could be consulted for the purpose of interpretation.”); id. (Ago) (July 17, 1964) (“[I]t would be possible to say, simply ‘in the interpretation of a provision, recourse may be had also to other means...’.”).

84 Id. (Waldock) (July 17, 1964) (“He thought it would probably suffice to state the basic rule firmly in article [31]”).

85 Id. (de Luna) (July 17, 1964) (“he preferred the present wording”).

86 Id. at 316 –17 (July 20, 1964).

87 Id. at 317 (Ruda) (July 20, 1964) (quoting Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), supra note 52, at 63).

88 Id. at 315 (July 20, 1964).

89 Id. at 318 (Paredes) (July 20, 1964).

90 Id. at 279 (Bartos) (July 14, 1964) (“In his view the interpretation of a treaty should be based on the general spirit of the treaty. The two concepts—his own and the Special Rapporteur’s—were difficult to reconcile, since there was a question of primacy.”). A final colloquy between Rosenne and Waldock nicely illustrates this point. Rosenne, perhaps still smarting from the rejection of his own proposal, said after the final vote that “he wished to place on record his reservations regarding article [32]; it was normal to have recourse to travaux préparatoires for purposes of interpretation.” Id. at317 (Rosenne) (July 17,1964). Waldock responded by reaffirming what the discussion had already showed: “Under article [32], a fairly wide use of travauxpréparatoires was permitted.” Id. (Waldock) (July 17, 1964). The difference was that the 1964 ILC draft permitted the use of travaux for the presumptive purpose of elucidating the text but not for reconstructing the original policy considerations so as to decide the wisest resolution of some contemporary problem.

91 Id. at 317 (Waldock) (July 20, 1964).

92 Humphrey Waldock (Special Rapporteur), Third Report on the Law of Treaties, at 66 – 68, UN Doc. A/CN.4/167 (citing travaux to resolve a question about rights under the Hay-Pauncefote Treaty); cf. [1964] 1 Y.B. Int’ll. Comm’n, supra note 47, at 234–35 (Waldock) (July 6,1964) (“In many cases, the intention of the parties to exclude certain territories from the operation of a treaty would result from the travaux préparatoires and could be a matter of interpretation.”).

93 E.g., [1964] 1 Y.B. Int’ll. Comm’n, supra note 47, at 238 (Lachs) (July 6, 1964) (suggesting that the commentary clarify the meaning of a draft article), 314 (Waldock) (July 17, 1964) (similar), 255 (Yasseen) (July 9, 1964) (similar); cf. id. at 254 (Bartoˇs) (July 9, 1964) (proposing to transfer “the substance of [a] paragraph ... to the commentary”), 250 (Lachs) (July 8, 1964) (similar), 255 (Castén) (July 9, 1964) (similar).

94 Reports of the International Law Commission on the Work of Its Sixteenth and Seventeenth Sessions, at 22, UN Doc. A/6090 (Nov. 4, 1965); see also Waldock’s Sixth Report, Add. 6, supra note 69, at 3 (citing support by Israel, with a caveat that the rule should not lead to “excessive molecularization of the treaty”), 1–7 (citing general sympathy for at least initially treating text as an accurate expression of party intent). For one exception, see Law of Treaties: Comments by Governments on Parts I, II and III of the Draft Articles on the Law of Treaties Drawn Up by the Commission at Its Fourteenth, Fifteenth and Sixteenth Sessions, at 293 (Hungary) (Sept. 1, 1965) (agreeing with spirit of ILC commentary but suggesting that the actual draft text was “rigid” and should be “more flexibl[e]”) [hereinafterCommentsbyGovernments], in [1966] 2Y. B. Int’ll. Comm. 279, UNDoc.A/CN.4.SER.A/1966/Add.1 (1967).

95 Sixth Committee, Summary Record of the 912th Meeting, at 67 (Australia) (interpreting Article 103 of the UN Charter based on an extended analysis of the travaux of the San Francisco Conference), UN GAOR, 21st Sess., UN Doc. A/C.6/SR.912 (Oct. 18, 1966).

96 Sixth Committee, Summary Record of the 851st Meeting, at 74 (Austria) (emphasizing the role of drafting history in applying a separate article on treaties concluded in more than one language), UN GAOR, 20th Sess., UN Doc. A/C.6/SR.851 (Oct. 14, 1965); Comments by Governments, supra note 94, at 317 (Netherlands) (Feb. 26, 1965) (noting the role of travaux in assessing the existence of party expectations about the termination of a treaty).

97 Comments by Governments, supra note 94, at 361 (Yugoslavia) (Apr. 9, 1966) (“when the text of a treaty is clear and unambiguous, there can be no reference to provisional understandings in the course of negotiations”); Sixth Committee, Summary Record of the 850th Meeting, at 67(Thailand) (similar), UNGAOR, 20th Sess., UN Doc. A/C.6/SR.850 (Oct. 13, 1965).

98 Sixth Committee, Summary Record of the 842nd Meeting, at 15 (United States), UN GAOR, UN Doc. A/C.6/SR.842 (Oct. 6, 1965). It is interesting to note that the U.S. member of the ILC had been enthusiastic about Waldock’s approach to treaty interpretation. [1964] 1 Y.B. Int’l L. Comm’n, supra note 47, at 275 (Briggs) (“strongly supported the approach adopted by the Special Rapporteur,” albeit with some reservations about “the use of the word ‘natural’” in the description of natural meaning).

99 Comments by Governments, supra note 94, at 44–45 (United States).

100 For exceptions, see Sixth Committee, Summary Record of the 845th Meeting, at 38 (Greece) (“there was only one basic rule of interpretation: to ascertain the intention of the parties by every possible means, in every possible way”), UN GAOR, 20th Sess., UN Doc. A/C.6/SR.845 (Oct. 11, 1965); Sixth Committee, Summary Record of the 850th Meeting, at 69 (Kenya) (similar), UN GAOR, 20th Sess., UN Doc. A/C.6/SR.850 (Oct. 13, 1965).

101 Since ILC membership was scheduled to turn over at the end of 1966, the General Assembly approved an extraordinary ILC session to complete work on the topic. GA Res. 2045 (XX) (Dec. 8, 1965)

102 Waldock’s Sixth Report, Add. 6, supra note 69, at 20 (“[H]aving regard to the controversial character of this question, the number of governments which have made comments on it is comparatively small.”).It is worth noting that the Turkish delegate to the Sixth Committee had warned against drawing strong conclusions from such governmental silence. Sixth Committee, Summary Record of the 847th Meeting, at 48 (Turkey) (“The reason why Governments sometimes failed to comment on a particular point was not always perhaps that they implicitly approved of it,... but simply that they had not had the time to examine it.”), UN GAOR, 20th Sess., UN Doc. A/C.6/SR.847 (Oct. 12, 1965)

103 [1966] 1 Y.B. Int’l L. Comm’n, pt. 2, supra note 69, at 184 (Amado) (June 14, 1966).

104 Id. at 185 (Amado) (June 15, 1966) (outlining “the three major questions”).

105 Cf. Abi-Saab, supra note 3.

106 Waldock’s Sixth Report, Add. 6, supra note 69, at 8.

107 [1966] 1 Y.B. Int’l L. Comm’n, pt. 2, supra note 69, at 193 (de Luna) (June 16, 1966); see also id. at 269 (Briggs) (July 5, 1966) (“no intention of establishing a rigid hierarchy of means of interpretation” in Article 31), 268 (Rosenne) (July 4, 1966) (“the Special Rapporteur had carefully explained that there was no intention of creating a hierarchy of rules of interpretation” in Article 31).

108 [1966] 1 Y.B. Int’l L. Comm’n, pt. 2, supra note 69, at 195 (El-Erian) (June 16, 1966). Even the one member then inclined to support an interpretive hierarchy agreed that the draft text did not create one. Id. at 189 (Ago) (June 15, 1966).

109 [1966] 1 Y.B. Int’l L. Comm’n, pt. 2, supra note 69, at 267 (Waldock) (July 4, 1966). Throughout every subsequent iteration of the ILC text, the special rapporteur emphasized that the “unity of the process of interpretation” under the general rule of Article 31 did not “establish any positive hierarchy for the application of the[se] means of interpretation.” Waldock’s Sixth Report, Add. 6, supra note 69, at 10; see also id. (suggesting that any misunderstanding was “perhaps reminiscent of [similar errors regarding] the so-called sources of international law listed in article 38 of the Statute of the International Court.... [N]o matter how general or neutral the formulation, alert minds may see in the arrangement chosen a basis for deducing a hierarchical order for the application of the norms.”).

110 Waldock’s Sixth Report, Add. 6, supra note 69, at 8.

111 [1966]1 Y.B. Int’ll. Comm’n, pt. 2, supra note 69, at 196 –97, 200 (Tsuruoka)(June 16, 1966). Tsuruoka was not alone in advocating this sort of open-ended intentionalism. The Hungarian delegate to the Sixth Committee likewise embraced the “investigation ab initio of the supposed intentions of the parties” as the “object of interpretation.” Sixth Committee, Summary Record of the 978th Meeting, at 113 (Hungary), UN GAOR, 22nd Sess., UN Doc. A/C.6/SR.978 (Oct. 23, 1967).

112 [1966] 1 Y.B. Int’l L. Comm’n, pt. 2, supra note 69, at 197 (Ago); cf. Sixth Committee, Summary Record of the 912th Meeting, at 69 (de Luna) (“[The ILC] had opted for the will of the parties expressed objectively in the text rather than for the intention of the parties reconstructed subjectively from the preparatory work.”), UN GAOR, 21st Sess., UN Doc. A/C.6/SR.912 (Oct. 18, 1966).

113 [1966] 1 Y.B. Int’l L. Comm’n, pt. 2, supra note 69, at 190 (Jiménez de Aréchaga) (June 15, 1966).

114 Id. at 203 (Briggs) (June 20, 1966) (“His own conviction that the contents of article [31] should not be separated from those of article [32] did not proceed mainly from substantive considerations: it was largely a question of method of expression and of emphasis.... He did not accept... [that] the interpreter was seeking the intention of the parties as a subjective element distinct from the text.”), 186 (Rosenne) (June 15, 1966) (“Even though the ordinary meaning might sometimes be ambiguous, it should constitute the starting point of the whole process of interpretation.”), 204 (El-Erian)(June 20, 1966) (“All the members of the Commission agreed that the preparatory work was not an original means of determining the text of a treaty, but merely a means of confirming or elucidating its meaning. The essential principle was the primacy of the text as the authentic expression of the intention of the parties.”).

115 The only apparent exception was Paul Reuter’s brief gesture to a form of textualism more arid than even Fitz maurice had contemplated. Id. at 188 (Reuter) (June 15, 1966) (“the words were the only thing that counted for the purpose of the interpretation of treaties”).

116 Waldock’s Sixth Report, Add. 6, supra note 69, at 22 (emphasis added). Notably, Waldock rejected Czechoslovakia’s proposal to specify a presumption that the text reflected the parties’ intent, since in his view “the statement of the presumption may tend to raise the question how far the presumption is rebuttable and... may slightly tend to increase the rigidity of the rules formulated in the articles.” Id. at 9.

117 [1966] 1 Y.B. Int’l L. Comm’n, pt. 2, supra note 69, at 202 (Bartosˇ) (June 17, 1966) (“There were cases, particularly of bilateral treaties, in which the preparatory work brought to light what was sought by interpretation, for it provided an objective expression of the subjective element of the parties’ intention.”).

118 Id. at 205 (Ago) (June 10, 1966). For other examples, see also id. at 207 (Amado) (June 20, 1966) (“If the text failed to convey the purpose of the States concerned, if it did not enable States to exercise their authority as States in performing the treaty, then the meaning of the text must be sought by every available scientific means.”) and at 203 (Yasseen) (June 20, 1966) (“The Commission had given a certain primacy to the text of the treaty, without excluding the possibility of recourse to further means of interpretation such as the circumstances of the conclusion of the treaty and the preparatory work.... [R]ecourse to preparatory work was... in order to verify or confirm the apparent meaning of the text, so as to make sure that that meaning was in fact what the parties had intended.”).

119 Whether this language ultimately makes logical sense—with ILC members talking simultaneously about the special “crucible” of Article 31 and about the organic unity of Articles 31 and 32—it was how they described what they had done.

120 [1966] 1 Y.B. Int’l L. Comm’n, pt. 2, supra note 69, at 201 (Verdross) (June 17, 1966) (“[R]ecourse should only be had to the preparatory work in order to verify the result obtained by interpretation of the text or to elucidate the meaning of a provision that was not entirely clear.”); see also id. (Jiménez de Aréchaga) (June 17, 1966) (“As to the preparatory work, it was not always easy to draw the line between confirming a view previously reached and forming a view, but that depended on the inner mental processes of the interpreter.”).

121 [1966] 1 Y.B. Int’l L. Comm’n, pt. 2, supra note 69, at 204 (El-Erian) (June 20, 1966); see also Sixth Committee, Summary Record of the 981st Meeting, at 129 (Tunisia) (“On the important subject of the interpretation of treaties,... international law provided no absolute rules but merely a set of flexible guidelines. Articles [31]–[33] might constitute a consensus....”), UN GAOR, 22nd Sess., UN Doc. A/C.6/SR.981 (Oct. 25, 1967).

122 [1966] 1 Y.B. Int’l L. Comm’n, pt. 2, supra note 69, at 201 (de Luna) (June 17, 1966).

123 Id. at 207 (Amado) (June 20, 1966).

124 Waldock’s Sixth Report, Add. 6, supra note 69, at 9.

125 [1966] 1 Y.B. Int’l L. Comm’n, pt. 2, supra note 69, at 206–07 (Waldock) (June 20, 1966).

126 Id. (Waldock) (June 20, 1966). The ILC drafting committee ultimately replaced the word “further” with the word “supplementary” in the title of Article 32 in order to make it sound more easily in the Spanish and French translations (“complementarios” and “complémentaires”). Cf. Vienna Convention on the Law of Treaties, supra note 1, Art. 32 (official Russian text) (“dopolnitel’nye”). But the ILC members agreed that this change did not suddenly subordinate Article 32. [1966] 1 Y.B. Int’l L. Comm’n, pt. 2, supra note 69, at 270 (discussion among Briggs, Waldock, and El-Erian)(July 5, 1966). The ILC Commentary on the final draft articles further emphasized that these terms were interchangeable. ILC Commentary on Final Draft Articles, supra note 33, at 51 (referencing “the further (supplementary) means of interpretation mentioned in former article [32]”).

127 Comments by Governments, supra note 94, at 183 (United States); see also Waldock’s Sixth Report, Add. 6, supra note 69, at 5.

128 Waldock’s Sixth Report, Add. 6, supra note 69, at 21–22. (“The Commission itself said in paragraph 15 of its [1964] commentary that ‘it would be unrealistic and inappropriate to lay down in the draft articles [the official PCIJ and ICJ doctrine] that no recourse whatever may be had to extensive means of interpretation, such as travaux préparatoires, until after the application of the rules contained in article [31] has disclosed no clear or reasonable meaning.’ Accordingly, the rule which it formulated was carefully balanced so as to allow recourse to travaux préparatoires in order to ‘verify or confirm the meaning resulting from the application of article [31]’....”).

129 As Waldock recalled, “Some members felt that in practice travaux préparatoires play a somewhat more significant role in interpretation than might perhaps appear from a strict reading of certain pronouncements of the International Court.” Id. at 21. The point here was to emphasize that the ILC draft faithfully reflected the actual practice of ICJ judges. See ILC Commentary on Final Draft Articles, supra note 33, at 51 (“accords with the jurisprudence of the International Court”).

130 See section entitled “The Final ILC Draft, ” infra notes 151–62 and accompanying text (describing 1966 ILC settlement). The ILC records occasionally reflect comments suggesting that “the” route to travaux is through ambiguity or absurdity. See, e.g., [1966] 1 Y.B. Int’l L. Comm’n, pt. 2, supra note 69, at 205 (Ago) (June 10, 1966), 201 (Tunkin) (June 17, 1966), 207 (Waldock) (June 20, 1996). These stray remarks might be quoted out of context to suggest that ambiguity and absurdity were understood to be the only routes to travaux. That would not be a fair reading. This error was never made in final written documents, and since it runs so profoundly against the text of the draft, the substantive particulars of the drafting negotiations, and the concessions by even those who opposed travaux, each of these few comments seems best read as shorthand for describing one of the ways that travaux might be introduced.

131 Comments by Governments, supra note 94, at 183 (United States) (“The use of the word ‘conclusively’... may be unnecessary. The word ‘established’ standing alone is definite and precise. Adding the word ‘conclusively’ may cause confusion in many cases.”).

132 Waldock’s Sixth Report, Add. 6, supra note 69, at 23.

133 [1966] 1 Y.B. Int’l L. Comm’n, pt. 2, supra note 69, at 205 (Ago) (June 20, 1966) (“How could it be established that the parties intended a term to have a special meaning, unless recourse was had to the further means of interpretation?”), 206 (Waldock) (June 20, 1966) (“[A] meaning other than the ordinary meaning of a term could often be discovered only in the preparatory work or from the circumstances of the conclusion of a treaty.”). This conception of special meaning was further demonstrated by Tsuruoka’s later proposal to move the provision in question from Article 31(4) to Article 31(2) “in the interests of clarity.” Id. at 267 (Tsuruoka) (July 4, 1966). He apparently took for granted that a special meaning could be shown in the travaux, and was anxious to emphasize that it might also sometimes appear from the other elements of Article 31.

134 See, e.g., Waldock’s Sixth Report, Add. 6, supra note 69, at 23 (successfully urging the ILC to move “special meaning” into Article 31 from a separate article, because the “establishment of a ‘special meaning’ is not one of the purposes for which article [32] admits recourse to travaux préparatoires, and unless the ‘special meaning’ rule is made part of article [31], means of interpretation necessary to establish a special meaning may appear to be excluded”).

135 [1966] 1 Y.B. Int’l L. Comm’n, pt. 2, supra note 69, at 206 (El-Erian) (June 20, 1966).

136 Waldock’s Sixth Report, Add. 6, supra note 69, at 16.

137 [1966] 1 Y.B. Int’l L. Comm’n, pt. 2, supra note 69, at 200 (Rosenne) (June 17, 1966) (citing use of travaux at the ICJ).

138 ILC Commentary on Final Draft Articles, supra note 33, at 68.

139 Waldock’s Sixth Report, Add. 6, supra note 69, at 16 (Treaty of Ghent example discussed above).

140 [1966] 1 Y.B. Int’l L. Comm’n, pt. 2, supra note 69, at 210 (Ago) (June 22, 1966).

141 Id. at 200 (Rosenne) (June 17, 1966) (citing fifteen examples).

142 Id. at 205 (Yasseen) (June 20, 1966), 205 (Tunkin) (June 20, 1966), 206 (El-Erian) (June 20, 1966).

143 Id. at 201 (Rosenne) (June 17, 1966).

144 Id. at 269 (Rosenne) (July 4, 1966).

145 Id. at 267 (Waldock) (July 4, 1966) (“It was important that that should be made clear in the commentary....”). For other examples, see [1966] 1 Y.B. Int’l L. Comm’n, pt. 1, at 13, (Cadieux) (Jan. 5, 1966), 30 (Elias) (Jan. 7, 1966), 31 (de Luna) (Jan. 10, 1966), 37 (Verdross) (Jan. 11, 1966), 79 (Rosenne) (Jan. 19, 1966), 117 (Reuter) (Jan. 26, 1966), UN Doc. A/CN.4/SER.A/1966. At least one member expressed concern that this reliance on the commentary might be risky. Id. at 8 (Bartoˇs) (Jan 4. 1966). But at other times even he was ready enough to do just that. [1966] 1 Y.B. Int’l L. Comm’n, pt. 2, supra note 69, at 36 (Bartosˇ) (May 11, 1966) (urging that it was “important to explain [the interpretation of one draft article] in the commentary”).

146 UN Secretariat, Guide to the Draft Articles on the Law of Treaties Adopted by the International Law Commission at Its Eighteenth Session (1966), UN Doc. A/C.6/376 (May 11, 1967) (subject matter index to commentary from governments on specific articles); see also UN Secretariat, Analytical Compilation of Comments and Observations Made in 1966 and 1967 with Respect to the Final Draft Articles on the Law of Treaties, UN Doc. No. A/CONF.39/5(Vol. I) & (Vol. II) (Feb. 10, 1968) (organized compilation of excerpted comments from governments on specific articles); Report of the Secretary-General, Comments on the Final Draft Articles on the Law of Treaties Prepared by the International Law Commission, UNDoc.No.A/6827 (Aug. 31, 1967) & Adds. 1(Sept. 27, 1967) & 2 (Oct. 6, 1967) (compiling all submissions from governments in original form) [hereinafter Compilation of Comments on Final ILC Draft].

147 Sixth Committee, Summary Record of the 912th Meeting, at 70 (Tanzania) (“Some articles were indeed meaningless without the commentary; redrafting might therefore be necessary, although that would lengthen the articles.”), UN GAOR, 21st Sess., UN Doc. A/C.6/SR.912 (Oct. 18, 1966).

148 Comments and Amendments to the Final Draft Articles on the Law of Treaties Submitted in 1968 in Advance of the Conference in Accordance with General Assembly Resolution 2287 (XXII), at33 (Peru) (Mar. 4, 1968) (similar), UN Doc. A/CONF.39/6 (Mar. 4, 1968).

149 ILC Commentary on Final Draft Articles, supra note 33, at 50–51.

150 Id. at 51 (“[I]t is established—and on this point the Commission was unanimous—that the starting point of interpretation is the meaning of the text....”).

151 Id. (“All the various elements, as they were present in any given case, would be thrown into the crucible, and their interaction would give the legally relevant interpretation. Thus,... the process of interpretation is a unity and... the provisions of the article [31] form a single, closely integrated rule.... The elements of interpretation in the article have in the nature of things to be arranged in some order. But it was considerations of logic, not any obligatory legal hierarchy, which guided the Commission in arriving at the arrangement proposed in the article.”).

152 Id. at 53–54.

153 Indeed, the ILC refused to include a definition of travaux, for fear that any such definition might exclude vital evidence. Id. at 54. The ILC even took the then somewhat controversial position that travaux are admissible against states that did not participate in the drafting process. Id. (“A State acceding to a treaty in the drafting of which it did not participate is perfectly entitled to request to see the travaux pr´eparatoires, if it wishes, before acceding.”).

154 Id. at 52 (“[T]he starting point of interpretation is the elucidation of the meaning of the text, not an investigation ab initio into the intentions of the parties.”); see also id. at 54 (“article [32] does not provide for alternative, autonomous, means of interpretation”).

155 Id. at 52 (describing travaux as “mere evidence” directed at a “question of fact”).

156 Id. at 54 (doubting whether the PCIJ’s purported exclusion of travaux in Territorial Jurisdiction of the International Commission of the River Oder, 1929 PCIJ (ser.A)No.23 (Sept. 10), on doctrinal grounds “reflects the actual practice regarding the use of travaux pr´eparatoires “).

157 Id. at 51.

158 Id. at 53–54 (introductory paragraph numbers omitted).

159 Id. at 51 (emphasis added) (“[T]he burden of proof lies on the party invoking the special meaning of the term.”).

160 Id. at 51.

161 Id. at 53; cf. [1966] 1 Y.B. Int’l L. Comm’n, pt. 2, supra note 69, at 269 (Jiménez de Aréchaga) (July 5, 1966) (“Paragraph I of the Drafting Committee’s text stated the golden rule of interpretation. Paragraph 4, on the other hand, dealt with a minor point which was of limited application[.]”).

162 For a good summary of debates on a series of important organizational issues, see ILC Commentary on Final Draft Articles, supra note 33, at 38–48. The conference was ultimately held in Vienna during two eight-week sessions, one in 1968 and one in 1969. See GA Res. 2287 (XXII) (Dec. 6, 1967); GA Res. 2166 (XXI) (Dec. 5, 1966). The principal drama before the conference centered on the question of attendance by East Germany and other similarly situated states. See, e.g., 1968 Vienna Conference Summary Records, supra note 28, at 2–9 (Mar. 26, 1968) (arguments about delegate credentials and the “all states” formula for invitations to the conference); UN GAOR, 21st Sess., 1484th mtg. at 6–13, UNDoc. A/PV.1484 (Dec.5,1966) (debate culminating in rejection of”all states” formula).

163 E.g., 1968 Vienna Conference Summary Records, supra note 28, at 1 (UN legal counsel) (Mar. 26, 1968) (“the most important, and might also prove to be the most difficult, of [the six UN codification] conferences”); Sixth Committee, Summary Record of the 908th Meeting, at 40 (United Kingdom)(“There was...urgent need to establish conventional rules relating to the law of treaties in general.”), UN GAOR, 21st Sess., UN Doc. A/C.6/SR.908 (Oct. 12, 1966); [1966] 1 Y.B. Int’l L. Comm’n, pt. 2, supra note 69, at 191 (Bartosˇ) (June 15, 1966) (“a topic which was not only vast, complicated and of great importance, but also highly controversial”).

164 E.g., Sixth Committee, Summary Record of the 974th Meeting, at 93 (Israel) (“the most difficult of the codification conferences undertaken by the United Nations or by any other international organization”), UN GAOR, 22nd Sess., UN Doc. A/C.6/SR.974 (Oct. 18, 1967); Sixth Committee, Summary Record of the 977th Meeting, at 111 (United States) (noting that the VCLT “could be the most far-reaching contribution to the establishment of international law yet achieved; but it could also have an adverse effect on the development of international law and on the maintenance of world peace and security”), UN GAOR, 22nd Sess., UN Doc. A/C.6/SR.977 (Oct. 20, 1967); Sixth Committee, Summary Record of the 904th Meeting, at 20 (Nigeria) (“the most difficult subject that [the ILC] had dealt with so far”), UN GAOR, 21st Sess., UN Doc. A/C.6/SR.904 (Oct. 6, 1966).

165 “The birth of the Convention was dramatic and political....” Vallat, Francis, The Vienna Convention on the Law of Treaties, 1969, 1970 Y.B. of the A.A.A., at xi, xvi; see also, e.g., Sixth Committee, Summary Record of the 981st Meeting, at 130 (Tanzania) (discussing “the grave crisis of confidence in international law resulting from the decision of the International Court of Justice on the question of South West Africa”), UN GAOR, 22nd Sess., UN Doc. A/C.6/SR.981 (Oct. 25, 1967).

166 Sixth Committee, Summary Record of the 904th Meeting, at 19 (Canada) (“Although he did not wish to comment on the political difficulties which might be set the proposed conference, he felt obliged to point out that its failure would clearly be disastrous....”), UN GAOR, 21st Sess., UN Doc. A/C.6/SR.904 (Oct. 6, 1966); Sixth Committee, Summary Record of the 967th Meeting, at 55 (Nigeria) (“Because of the great importance of the subject,... [a] failure, like that of the Conference for the Codification of International Law held at the Hague in 1930..., could have a most serious effect on the future development of international law and the conduct of international relations.”), UN GAOR, 22nd Sess., UN Doc. A/C.6/SR.967 (Oct. 11, 1967).

167 1968 Vienna Conference Summary Records, supra note 28, at 21–35 (endless debates over petty drafting details regarding treaty formalities), 88 (Sweden) (Blix) (Apr. 8, 1968) (observing “that the length of the debate was in inverse proportion to the practical importance of the subject”), 125 (Apr. 11, 1968) (lengthy discussion about conference working procedure, triggered by Afghanistan’s comment that “at the present rate of process there was little chance of getting through [the draft] by 24 May”).

168 Id.at 12–20 (Mar. 28, 1968) (debate over the degree of deference afforded to the ILC draft). There was apparent agreement that the size of the ILC majority on any given issue would affect how much deference was extended to the ILC resolution of that point. Id. at 169 –70 (Uruguay) (Apr. 4, 1968), 239 (Venezuela) (Apr. 29, 1968), 299 (Chile) (May 6, 1968).

169 At both sessions of the conference, the delegates elected Roberto Ago to be president of the conference, T. O. Elias to be president of the Committee of the Whole, Eduardo Jiménez de Aréchaga to be rapporteur of the Committee of the Whole, and Mustafa Yasseen to chair the Drafting Committees.

170 1968 Vienna Conference Summary Records, supra note 28, at 20 (Waldock) (Mar. 28, 1968).

171 Note Verbale from the U.S. Permanent Representative [to the United Nations] to the International Law Commission (Oct. 2, 1967) [hereinafter U.S. Note Verbale on 1966 ILC Draft], in Compilation of Comments on Final ILC Draft, supra note 146, Add. 2, at 5–6. See supra text at notes 104–34 for discussion of the United States’ similar critique in 1964.

172 Frederic L. Kirgis, The International Society of International Law’s First Century: 1906–2006, at 343–44 (2006) (noting that a private 1967 ASIL study panel “became the briefing and planning group for the U.S. delegation to the Vienna Conference” and that McDougal—a “prominent member of the panel”—was charged with the topic of treaty interpretation).

173 See subsection entitled “The beˆte noire,” supra notes 32–41 and accompanying text, and McDougal, Myres, The International Law Commission’s Draft Articles of Interpretation: Textuality Redivivus, 61 AJIL 992 (1967).

174 1968 Vienna Conference Summary Records, supra note 28, at 43 (McDougal) (Apr. 2, 1968).

175 Even though the next topic of discussion was Article 33, on the closely related question of interpreting multilingual treaties, McDougal neither introduced the U.S. amendment on that subject nor participated in the ensuing debate. See id. at 188–90.

176 1969 Vienna Conference Summary Records, supra note 32, at 75 (Apr. 5, 1968) (listing members of the U.S. delegation).

177 McDougal, Myres, Statement of Professor Myres S. McDougal, United States Delegation, to Committee of the Whole, April 19, 1968, 62 AJIL 1021 (1968).

178 1968 Vienna Conference Summary Records, supra note 28, at 167–68 (United States) (Apr. 19, 1968) (describing “over-rigid and unnecessarily restrictive requirements” that “establish[] a hierarchical distinction between certain primary rules of interpretation described as a ‘general rule of interpretation’ and certain allegedly ‘supplementary’ means of interpretation,” producing a cascade of “rigidities, restrictions and hierarchical distinctions”).

179 Id. (United States) (Apr. 19, 1968); U.S. Note Verbale on 1966 ILC Draft, supra note 171, at 5 (decrying the “subordinate position to which ‘preparatory work’ on the treaty ‘and the circumstances of its conclusion’ are relegated”); Sixth Committee, Summary Record of the 977th Meeting, at 11 (United States) (similar), UN GAOR, 22nd Sess., UN Doc. A/C.6/SR.977 (Oct. 20, 1967).

180 To reach this conclusion, McDougal needed not only to dismiss the special meaning avenue to travaux, but to ignore the confirmation route entirely. See 1968 Vienna Conference Summary Records, supra note 28, at 167–68 (United States) (Apr. 19, 1968) (arguing that the special meaning avenue was only a “modest concession” both because “the burden of proof lies on the party invoking the special meaning of the term” and because—in McDougal’s mistaken belief—the special meaning route was available only after first demonstrating ambiguity or absurdity on the face of the document); id. (United States) (Apr. 19, 1968) (omitting mention of confirmation); see also U.S. Note Verbale on 1966 ILC Draft, supra note 171, at 5–6 (United States) (ignoring confirmation).

181 McDougal was not alone in making this error before the text was adopted in Vienna. See, e.g., Richard A. Falk, supra note 41, at 343–44 (1967); Sharma, Surya P., The ILC Draft and Treaty Interpretation with Special Reference to Preparatory Works, 8 Indian J. Int’l L. 367, 386–94 (1968); Schwarzenberger, Georg, Myths and Realities of Treaty Interpretation: Articles 27–29 of the Vienna Draft Convention on the Law of Treaties, 22 Current Legal Probs. 204, 208 (1969).

182 The plausibility of this hypothesis is somewhat undercut by McDougal’s continuation of his acid critique even after Articles 31 and 32 had been adopted in Vienna. See the remarks by McDougal in the panel “Treaty Interpretation: The Proper Role of an Impartial Tribunal,” 63 ASIL Proc. 131 (1969), in which he criticized the moderate defense of the VCLT offered by his two co-panelists as “exemplif[ying]... all the confusions” that his scholarship sought to dispel. Id. at 131. He eventually provoked one co-panelist to “interrupt[]” and note that “his patience was exhausted and that the confusion created by Professor McDougal was much more serious than that ever created by a tribunal.” Id. at 136.

183 Talalaev, A.N., Mezhdunarodnye Dogovory V Sovremennom Mire: Voprosy Prava Mezhdunarodnykh Dogovorov V Svete Raboty Ven. Konf. Oon 1968–1969 GG, 141–43 (1973) (arguing that McDougal’s proposal would have created “broad opportunities” for imperialist powers to subvert the international rule of law).

184 U.S. Note Verbale on 1966 ILC Draft, supra note 171, at 5.

185 Id. (quoting Arnold D. Mcnair, The Law of Treaties 175 (1938).

186 1968 Vienna Conference Summary Records, supra note 28, at 167–68 (United States) (Apr. 19, 1968).

187 Id. (United States) (Apr. 19, 1968).

188 U.S. Note Verbale on 1966 ILC Draft, supra note 171, at 5.

189 United States of America: Amendment to Articles 27 & 28, UN Doc. A/CONF.39/C.1/L.156 (Apr. 10, 1968).

190 U.S. Note Verbale on 1966 ILC Draft, supra note 171, at 6.

191 1968 Vienna Conference Summary Records, supra note 28, 167–68 (United States) (Apr. 19, 1968).

192 Ukraine, for example, said that the ILC had “rightly rejected proposals whereby a treaty might be interpreted exclusively in connexion with the intention of the parties” but had then mistakenly “gone to the other extreme in deciding that the interpretation should be based exclusively on the terms of the treaty in their context and in the light of its object and purpose.” Id. at 168 (Ukraine) (Apr. 19, 1968); see also id. at 174 (Spain) (Apr. 20, 1968) (similar), 169 –170 (Uruguay) (Apr. 20, 1968) (similar), 171 (Ceylon) (Apr. 20, 1968) (similar).

193 Thus Austria said with some asperity that—if McDougal was right—the ILC’s approach would require a belief that “the will of the parties was exhaustively expressed by the text of a treaty and could therefore be ascertained exclusively from it.” Id. at 178 (Austria) (Apr. 22, 1968). Switzerland put it a bit more mildly: “it would not always be easy... to establish from the text alone the common intention of the parties.” Id. at 180 (Switzerland) (Apr. 22, 1968).

194 Id. at 179 (Sweden) (Apr. 22, 1968) (worrying that the ILC might have rejected “the subjective approach whereby the ordinary meaning to be given to the terms of a treaty could be set aside if it was clearly established that there was a conflict between the terms and the proven common intentions of the contracting parties”), 177 (Italy) (Apr. 20, 1968) (“The preparatory work and the circumstances in which a treaty had been concluded should not be regarded as subsidiary means of interpretation.), 170 (Ghana) (Apr. 19, 1968) (noting that “principles of interpretation... were only guidelines [for]... ascertaining the intention of the parties for the purpose of applying the terms of a treaty to a particular situation”), 182 (Czechoslovakia) (Apr. 22, 1968) (worrying that Article 31 could be read to contain an internal hierarchy).

195 Ghana, for example, initially feared that the ILC draft would restrict the use of travaux “for two purposes only”—namely, ambiguity and absurdity. Id. at 171 (Ghana) (Apr. 18, 1968); see also id. at 173 (Tanzania) (Apr. 20, 1968) (proposing to delete the confirmation, ambiguity, and absurdity routes from Article 32, thus allowing “[r]ecourse without restriction... to the preparatory work of the treaty..., although primary importance should be given to the meaning derived from the application of article [31]”), 178 (Austria) (Apr. 22, 1968) (suggesting that the conference “adopt a flexible text which” would “enhance[e] the role of preparatory work” along the lines of the Tanzania amendment).

196 Id. at 176 (Bulgaria) (Apr. 20, 1968) (“It was only when the general rules set out in article [31] did not make it possible to give a clear and reasonable meaning to a clause in a treaty or to a treaty as a whole that recourse should be had to the supplementary means of interpretation mentioned in article [32]”), 181 (Mexico) (Apr. 22, 1968) (similar), 181 (Nigeria) (Apr. 22, 1968) (similar), 182 (Cuba) (Apr. 22, 1968) (similar).

197 Id. at 179 (Sweden) (Apr. 22, 1968) (“Although article [31] favoured the textual approach while also giving considerable weight to the object and purpose of the treaty, article [32] gave wider scope than the opponents of the draft were prepared to admit for the use of all supplementary means of interpretation, including preparatory work.”), 184 (Waldock) (Apr. 22, 1968) (“[W]ith regard to the use made in practice of preparatory work for purposes of interpretation, the differences of opinion were not very wide.”), 183 (Trinidad) (Apr. 22, 1968) (“The differences between delegations were not as wide as appeared at first sight.”), 175 (France) (Apr. 20, 1968) (“Articles [31] and [32] were a thorny matter, in as much as they could be regarded as reflecting the doctrinal conflict between those who advocated giving preference to the letter of a treaty and those who held that the intention of the parties should predominate. The proposed new articles did not seem, however, wholly to justify that way of viewing the matter.... Throughout [31 and 32] there was an underlying recognition of the intention of the parties as the foundation for the interpretation of treaties. The authors of the draft had nevertheless believed that the intention should be sought in the first place in the instruments made jointly by the parties,... and only thereafter in the more subjective elements....”), 173 (Poland) (Apr. 20, 1968) (“It was true that, in its commentary, the International Law Commission... stressed the paramount importance of the text for the interpretation of treaties. Nevertheless, in many of the draft articles, the Commission had shown great concern for the intentions— both explicit and implicit—of the parties.... Accordingly, the Commission excluded neither the approach based on the intentions of the parties, nor the functional approach; it merely attributed prime importance to the study of the text.”).

198 Id. at 177 (United Kingdom) (Apr. 22, 1968) (“[H]e wished to analyse some of the arguments advanced by the United States representative... when introducing his delegation’s amendment... to articles [31] and [32]. A particular reason for subjecting those articles to careful examination was that the statements made in the debate would constitute part of the preparatory work of the forthcoming convention on the law of treaties.”).

199 The United States was not alone in advocating this view of treaty interpretation.See id. at 168 (Vietnam) (Apr. 19, 1968), 172 (Greece) (Apr. 20, 1968); see also Republic of Vietnam: Amendment to Articles 27 and 28, UNDoc. A/Conf.39/C.1/L.199 (Apr. 17, 1968) (proposing to combine Articles 31 and 32).

200 1968 Vienna Conference Summary Records, supra note 28, at 177(United Kingdom)(Apr.22,1968) (“That view had been subjected to fierce criticism in the debate on treaty interpretation in the Institute of International Law in the early 1950s and had ultimately been decisively rejected by the Institute. Parts of the United States representative’s statement had seemed to be directed towards reviving the doctrine thus rejected”).

201 Id. at 170 (Uruguay) (Apr. 19, 1968); see also id. at 179–80 (Argentina) (Apr. 22, 1968) (“[T]he starting point of interpretation was the elucidation of the meaning of the text, not an investigation ab initio into the intentions of the parties.”), 184 (Waldock) (Apr. 22, 1968) (“In the circumstances, if the door were opened too widely to the use of preparatory work, very real dangers would arise for the integrity of the meaning of the treaty.”).

202 Id. at 168, 175 (USSR) (Apr. 20, 1968).

203 Id. at 182 (Cuba) (Apr. 22, 1968) (“the text of the treaty was the authentic expression of the will of the parties”), 182 (Turkey) (Apr. 22, 1968) (“The text of the treaty had to be regarded as the final expression of the intention of the parties....”), 179 (Mongolia) (Apr. 22, 1968) (“[I]nterpretation must be based on the intention common to all the parties as expressed in the text of the treaty itself.”); cf. id. at 181 (Mexico) (Apr. 22, 1968) (“the will of the parties as declared in the text represented their authentic intention”), 170 (Uruguay) (Apr. 19, 1968) (“the International Law Commission, which based interpretation on the text of the treaty”).

204 As Finland put the point, it was surely a “reasonable” working hypothesis to “assume that the draftsmen of a treaty would have exercised care in giving written expression to the intention of the parties.” Id. at 182 (Finland) (Apr. 20, 1968); see also, e.g., id. at 175 (France) (Apr. 20, 1968) (“The authors of the draft had nevertheless believed that the intention should be sought in the first place in the instruments made jointly by the parties,... and only thereafter in the more subjective elements....”), 177 (United Kingdom) (Apr. 22, 1968) (“it was wiser and more equitable to assume that the text represented the common intentions of the original authors”), 173 (Poland) (Apr. 20, 1968) (“[T]he intention of the parties was to be gathered, above all, from the text of the treaty.”), 175 (USSR) (Apr. 20, 1968) (“The text of the treaty was the main source of those intentions....”), 176 (Bulgaria) (Apr. 20, 1968) (“It was undeniable that the real intention of the parties should be sought in the first place in the text of the treaty....”), 180 (Argentina) (Apr. 22, 1968) (“presumption that the text of the treaty was the authentic expression of the intentions of the parties”), 174 (Spain) (Apr. 20, 1968) (noting “the pre-eminence of the text of the treaty as an objective expression of the will of the parties”); cf. id. at 181 (Liberia) (Apr. 22, 1968) (“[T]he text was the most authentic expression of that intention and should be given priority.”), 170 (Uruguay) (Apr. 19, 1968) (“The text signed was the only, and the most recent, expression of the common will of the parties.”), 176 (Brazil) (Apr. 20, 1968) (“The meaning of the text or, in other words, the ordinary meaning to be attributed to the terms of a treaty in their context was... the starting point for interpretation.”);

205 Id. at 177 (United Kingdom) (Apr. 22, 1968).

206 Id. (United Kingdom) (Apr. 22, 1968).

207 Id. at 184 (Waldock) (Apr. 22, 1968).

208 Id. (Waldock) (Apr. 22, 1968) (emphasis added).

209 Id. (Waldock) (Apr. 22, 1968) (“no intention to discard recourse to preparatory work”).

210 Id. at 170 (Uruguay) (Apr. 19, 1968).

211 Id. at 177 (United Kingdom) (Apr. 22, 1968).

212 Id. at 178 (United Kingdom) (Apr. 22, 1968) (citing Maximov v. United States, 373 U.S. 49 (1963)). Waldock had earlier noted at one point that, “[w]hile he had never underestimated the importance of recourse to the preparatory work for the purpose of verification and confirmation, it was essential to discourage attempts by a party to resort to that means of interpretation in order to dispute the result of an interpretation by the means set out in article [31].” [1966] 1 Y.B. Int’l L. Comm’n, pt. 2, supra note 69, at 206 (Waldock) (June 20, 1966). In the context of everything else Waldock said, this remark seems best read as an expression of the broader thrust of the ILC settlement, which certainly aimed “to discourage attempts” to exploit travaux in service of McDougalism.

213 1968 Vienna Conference Summary Records at 176 (France) (Apr. 20, 1968) (describing travaux as “unreliable, scattered as they were through incomplete or unilateral documents”), 178 (United Kingdom) (Apr. 20, 1968) (“preparatory work was almost invariably confusing, unequal, and partial”), 176 (Brazil) (Apr. 20, 1968) (“Although the preparatory work must undoubtedly be borne in mind, the utmost caution was necessary. States sometimes concealed their real views on the questions under discussion at conferences or resorted to friendly States to express them. A certain degree of confusion was thereby created, and gave rise to mistrust.”).

214 Id. at 180 (Kenya) (Apr. 22, 1968) (“[T]he records of negotiations leading up to the conclusion of a treaty were often incomplete or inconclusive and some decisions were arrived at informally without being recorded in writing at all.”), 179 (Mongolia) (Apr. 22, 1968) (similar), 174 (Poland) (Apr. 20, 1968) (warning that “in the case of agreements of minor importance the historical elements were neither well known nor easily accessible”), 170 (Uruguay) (Apr. 20, 1968) (“[T]here was a complete unreality in the references to the supposed intention. As a matter of experience, it often occurred that the difference between the parties to the treaties arose out of something which the parties had never thought of when the treaty was concluded and that, therefore, they had absolutely no common intention with regard to it. In other cases, the parties might all along have had divergent intentions with regard to the actual question in dispute.”).

215 Id. at 180 (Argentina) (Apr. 18, 1968) (“The value of preparatory work was undeniable,... but in view of the difficulties of ascertaining intentions before a treaty had been signed, preparatory work should be used with great caution....”), 173 (Tanzania) (Apr. 20, 1968) (noting the wisdom of being “extremely cautious” with “the records of treaty negotiations,” which “are in many cases incomplete or misleading”).

216 Id.at 170 (Uruguay) (Apr. 20, 1968) (warning that travaux could “furnish[]... atabula in naufragio, because there was generally something in the preparatory work that could be found to support almost any contention”); see also id. at 170 (Uruguay) (Apr. 20, 1968) (“[I]t was only too easy for a State wishing to evade its obligations to inject an element of uncertainty by referring to preparatory work.”), 180 (Argentina) (Apr. 22, 1968) (“if recourse to preparatory work were made too easy, States might invoke preparatory work to prove their arguments in support of any thesis”). Even the most enthusiastic advocates of travaux had long recognized this pitfall. E.g., [1952] 1 Annuaire De L’institut De Droit International, supra note 28, at 208 (Lauterpacht) (“ouvrirait la porte à des abus”); 1968 Vienna Conference Summary Records, supra note 28, at 173 (Tanzania) (Apr. 20, 1968) (discussing the need to “be extremely cautious in dealing with preparatory work”).

217 1968 Vienna Conference Summary Records, supra note 28, at 176 (France) (Apr. 20, 1968) (“Care should be taken not to give preference to the ulterior motives of the negotiators over the ideas they had decided to express and formally to record.”), 183 (Madagascar) (Apr. 22, 1968) (worrying that “a State could then, at the time of the negotiation of a treaty, purposely lay great stress on a position which was manifestly unacceptable to the other party; at the time of the application of the treaty, it would be open to that party to invoke its initial position as part of the preparatory work and thus, under cover of interpretation, frustrate the application of a clear and unambiguous text”); cf. id. at 178 (United Kingdom) (Apr. 20, 1968) (“If preparatory work were to be placed on equal footing with the text of the treaty itself, there would be no end to debate at international conferences.”).

218 [1966] 1 Y.B. Int’l L. Comm’n, pt. 2, supra note 69, at 200 (Rosenne) (June 17, 1966).

219 On this score, Waldock had offered an important clarification of the “rare” instances where absurdity might come into play. Under the ILC text, he said, absurdity could be assessed either with respect to the intrinsic logic of the bare text itself, or with respect to the understanding the parties had actually had when they entered into the treaty. [1966] 1 Y.B. Int’l L. Comm’n, pt. 2, supra note 69, at 206 (Waldock) (June 20, 1966) (“He had in mind, for instance, a drafting error which might give, as a matter of language, a perfectly possible interpretation, but one which was ‘absurd’ in the light of the object of the particular treaty. The phrase ‘in the light of the objects and purposes of the treaty’ [in the draft then being discussed] had been inserted as an objective criterion in order to discourage disingenuous recourse to the notion of an ‘absurd’ interpretation.”).

220 See part II, supra notes 26–31 and accompanying text.

221 1968 Vienna Conference Summary Records, supra note 28, at 183 (Portugal) (Apr. 22, 1968).

222 Id. at 184 (Waldock) (Apr. 22, 1968).

223 Id. (Waldock) (Apr. 22, 1968).

224 Id. (Waldock) (Apr. 22, 1968). Waldock emphasized again that this had been no accident. The ILC “had given careful consideration to the term ‘confirm’; the use of the term ‘verify’ had also been suggested, a use which would have gone near to bringing preparatory work into the first processes of interpretation, but the Commission had ultimately settled for ‘confirm.’” Id. (Waldock) (Apr. 22, 1968).

225 Id. at 179 (Austria) (Apr. 22, 1968) (worrying that “[w]ith the exception of the cases where... the technical or special use of a term appeared from the context,” there was no other way to demonstrate a special meaning).

226 See, e.g., [1966] 2 Y.B. Int’l L. Comm’n, supra note 94, at 222 (noting that the “technical or special use of the term normally [but not always] appears from the context”).

227 1968 Vienna Conference Summary Records, supra note 28, at 184 (Waldock) (Apr. 22, 1968) (“He could not agree with the Austrian representative[]... that... special meaning could only be arrived at by reference to the preparatory work. That type of case was comparatively rare....”).

228 Id. at 174 (Poland) (Apr. 20, 1968) (“[A] special meaning might be given to a term, in accordance with the intention of the parties. As that would be an exception to the rule, it would need to be proved.”), 174 (Sierra Leone) (Apr. 20, 1968) (“[P]aragraph (17) of the [ILC] commentary... stated that the purpose of paragraph 4 of article [31] was to emphasize that the burden of proof lay on the party invoking the special meaning of the term.”), 177 (United Kingdom) (Apr. 22, 1968) (“The Commission presumably also had in mind the need to differentiate between the ordinary meaning of a treaty provision and any special meaning which might be established in accordance with paragraph 4.”).

229 Id.at 174 (Spain) (Apr. 20, 1968) (“the exceptional circumstances covered by paragraph 4”are the ILC draft’s primary way “to mitigate the severity of article [31]”).

230 Id. at 269, 271 (Australia) (May 2, 1968), 273 (Ecuador) (May 2, 1968), 276 (Uruguay) (May 2, 1968), 285 (Chile) (May 3, 1968), 287 (Ghana) (May 3, 1968), 293 (Afghanistan) (May 3, 1968).

231 1969 Vienna Conference Summary Records, supra note 32, at 263 (Byelorussian SSR) (Apr. 18, 1969).

232 Id. at 111 (United Kingdom) (May 13, 1969) (discussing ILC travaux on the concept of separability); 1968 Vienna Conference Summary Records, supra note 28, at 177 (United Kingdom) (Apr. 22, 1968) (discussing ILC travaux on the concept of ordinary meaning).

233 1968 Vienna Conference Summary Records, supra note 28, at 50 (Israel) (Apr. 2, 1968) (anxiety about inadvertently creating an expressio unius problem), 218 (Ceylon) (Apr. 26, 1968) (same), 107 (United States) (Apr. 10, 1968 (concern about the difficulty of anticipating all potential reservations to a treaty).

234 E.g., id. at 177 (United Kingdom) (Apr. 22, 1968) (emphasizing need to clarify record regarding articles on interpretation); 1969 Vienna Conference Summary Records, supra note 32, at 93 (Afghanistan) (May 12, 1969) (similar, regarding article on coercion); see also id. at 57 (Germany) (May 6, 1969) (putting its understanding of Article 31(3)(c) on the record immediately before the final vote), 63 (USSR) (stating, after a ten-minute break for informal discussions, that representatives were “unanimous” in agreeing that the third-party beneficiary provisions would not restrict most-favored-nation rights).

235 1968 Vienna Conference Summary Records, supra note 28, at 185 (Apr. 22, 1968) (“The United States amendment... (A/CONF.39/C.1/L.156) was rejected by 66 votes to 8, with 10 abstentions.”). No roll call was taken.

236 Id. (Chair) (Apr. 22, 1968) (noting “that the Committee accepted articles [31] and [32], which could be referred to the Drafting Committee with the drafting amendments already mentioned.”).

237 Id. at 442 (Yasseen) (May 16, 1968) (“The Drafting Committee had added the words ‘or the application of its provisions’ at the end of paragraph 3(a).... [I]t had brought the English text into line with the French, Russian and Spanish texts by substituting the word ‘agreement’ for the word ‘understanding’. It had rejected the other amendments referred to it.”). These edits were discussed at the tail end of the 1968 session, when attention was focused on a bitter conflict about the dispute resolution mechanism. They occasioned no serious discussion. Cf. id. at 447 (Greece) (May 17, 1968) (noting later in the proceedings that “some of the draft articles had been approved with undue haste, and insufficient attention had perhaps been paid to the wording of the texts that had been referred to the Drafting Committee”), 478 (United Kingdom) (May 22, 1968) (“very dissatisfied with the way [draft] article 57 [on termination via material breach] had been dealt with, owing to the pressure of time”).

238 1969 Vienna Conference Summary Records, supra note 32, at 57 (May 6, 1969) (tallying vote as 97-0-0 in favor).

239 Id. at 58 (Poland) (May 6, 1969).

240 Id. (Yasseen, Ago, Israel, Costa Rica, Poland) (May 6, 1969).

241 Id. (May 6, 1969).

242 Id. at 59 (Ago) (May 6, 1969).

243 For some of the more directly corroborative examples, see, for example, Ian Sinclair, The Vienna Convention on the Law of Treaties 71–72 (1973); G. I. Tunkin, Mezhdunarodnoe Pravo 210–11 (1974); Eduardo Jiménez de Aréchaga, International Law in the Past Third of a Century, 159 Recueil Des Cours 46–47 (1978); Yaseen, Mustafa, L’interprétation des trait´es d’aprés la Convention de Vienne sur le droit des traité s, 151 Recueil Descours 1, 16, 80–82 (1976); Briggs, Herbert W., The Travaux Préparatoires of the Vienna Convention on the Law of Treaties, 65 AJIL 705, 708–12 (1971); Mehrish, B. N., Travaux Preparatoires as an Element in the Interpretation of Treaties, 11 Indian J. Int’l L. 39, 62, 65, 87–88 (1971); Gross, Leo, Treaty Interpretation: The Proper Role of an International Tribunal, 63 ASIL Proc. 108, 117–22 (1969); Jennings, R. Y., General Course on Principles of International Law, 121 Recueil Des Cours 323, 551–52 (1967) The only squarely contradictory account I have found from this period is a brief treatment in Jacobs, Francis G., Varieties of Approach to Treaty Interpretation: With Special Reference to the Draft Convention on the Law of Treaties Before the Vienna Diplomatic Conference, 18 Int’l & Comp. L.Q. 318, 326 –27 (1969); cf. Kearney, Richard D. & Dalton, Robert E., The Treaty on Treaties, 64 AJIL 495, 518–20 (1970) (predicting that the VCLT’s formal “hierarchy” of sources would not prevent regular reliance on travaux).

244 Resta Tement(Third) of the Foreign Relations Law of the United States §325cmt.e(1987).

245 It is possible that they did, or at least that the proper understanding of the settlement manifested itself sub rosa, in practice. Sbolci, for example, finds that the ICJ relied on the “confirmation” route to travaux much more often after the VCLT was ratified, which is consistent with the central role of “confirm” in the historical settlement. Sbolci, supra note 5, at 147.

246 Sorel & Boré Eveno, supra note 5, at 829–30; see also Gardiner, supra note 20, at 13–16 (noting that no ICJ majority opinion cited the VCLT until 1991); Bernárdez, Santiago Torres, Interpretation of Treaties by the International Court of Justice Following the Adoption of the 1969 Vienna Convention on the Law of Treaties, in Liber Amicorum Professor Ignaz Seidl-Hohenveldern 721 (1998) (describing the ICJ’s slow, inconsistent, and often inaccurate incorporation of VCLT principles), 731–35 (noting that the ICJ’s first explicit discussion of Articles 31 and 32—in 1991—treated them inaccurately as having simply “codified” preexisting ICJ precedent). See generally Territorial Dispute (Libya/Chad), 1994 ICJ Rep. 5 (Feb. 3) (focusing solely on Article 31(1)); Arbitral Award of 31 July 1989 (Guinea-Bissau v. Sen.) 1991 ICJ Rep. 53 (Nov. 12) (emphasizing that travaux should be used only in the event of ambiguity or absurdity). For a discussion usefully emphasizing the ICJ’s eventual moderation of its attitude toward travaux in practice, see Hathaway, supra note 21, at 48–68.

* Thanks to Nick Bagley, Chip Brower, Dan Crane, Evan Criddle, Kristina Daugirdas, Paul Dubinsky, Becky Eisenberg, Malgosia Fitzmaurice, Richard Gardiner, Monica Hakimi, Jim Hathaway, Don Herzog, Duncan Hollis, Andrew Kent, Gerry McNamara, Stefan Oeter, Steve Ratner, Don Regan, Mathias Reimann, Bruno Simma, and Sonja Starr for helpful comments on earlier draft.

The Travaux of Travaux: Is the Vienna Convention Hostile to Drafting History?

  • Julian Davis Mortenson (a1)

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