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Over the last couple of years, international lawyers have hotly debated the correct way to apply Article 31, paragraph 3(c) of the 1969 Vienna Convention on the Law of Treaties. Discussions have focused on the meaning of ‘the parties’. Traditionally this expression has always been interpreted in the stricter sense of all parties to the interpreted treaty. Voices are now raised suggesting a broader interpretation. According to this view, the correct meaning of ‘the parties’ is the two or more parties to a specific dispute. Given that the two interpretations of Article 31, paragraph 3(c) will often be mutually exclusive, international legal literature provokes a review of the possible reasons that give us ground to adopt them. This article provides such a review. It arrives at the conclusion that only the stricter interpretation can be seriously defended as being correct. First, only the stricter interpretation agrees with the clear ordinary meaning of Article 31, paragraph 3(c). Secondly, even assuming that the ordinary meaning of the provision is ambiguous, a strong case can be made in favour of the stricter interpretation using other data of interpretation, such as the context, the object and purpose of the treaty, and the preparatory work.
In the practice of modern international law, if a certain understanding is advanced as the correct interpretation of a treaty provision, the proposition is assessed using the rules of interpretation laid down in the 1969 Vienna Convention on the Law of Treaties, Articles 31–33. This article is concerned with the relationship held in such an interpretation process between the preparatory work of a treaty – described as a supplementary means of interpretation in Article 32 – and the three primary means of interpretation that can be used by an interpreter citing Article 31. Judged by the wordings of Articles 31 and 32, the relationship between the primary and the supplementary means of interpretation is hierarchical. As a consequence, preparatory work may be used to determine the correct meaning of a treaty provision, only on the condition that in the earlier stages of the interpretation process, the application of Article 31 has been found to leave the meaning of the interpreted treaty ‘ambiguous or obscure’, or to lead to a result ‘which is manifestly absurd or unreasonable’. Several scholars in the area have recently argued for granting the preparatory work of a treaty a more prominent role in the interpretation process. As this article will show, such a claim builds on arguments that do not stand up to careful legal analysis. It should, therefore, be discarded as unsound.
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