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Treaty Interpretation Under the Vienna Convention on the Law of Treaties pp 31–48Cite as

Meaning of Codification and VCLT as the First Round of Codification of Customary Rules of Treaty Interpretation

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Abstract

This chapter turns to explain the main theme of the book, i.e. the codification. It explains the meaning of codification in general and the specific codification of customary international law as reflected in the VCLT. The current text of the VCLT can be considered as the result of the first round of codification. The VCLT includes the codification of the then existing customary rules and the development of new customary rules.

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Notes

  1. 1.

    Definition suggested by Legal Dictionary, at The Free Dictionary. http://legal-dictionary.thefre edictionary.com/codification. Accessed 30 July 2017.

  2. 2.

    Lo (2011), p. 10.

  3. 3.

    The Lectric Law Library. The Common Law. http://www.lectlaw.com/mjl/cm001.htm. Accessed 30 July 2017.

  4. 4.

    They include: (1) the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949; (2) the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12, 1949; (3) The Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949; and (4) The Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949. See American Red Cross (2011). The article is available at https://www.redcross.org/images/MEDIA_CustomProductCatalog/m3640104_IHL_SummaryGenevaConv.pdf. Accessed 30 July 2017.

  5. 5.

    In this regards, the following explanation is useful: “There is considerable judicial and scholarly support, which is also endorsed by the International Committee of the Red Cross (ICRC), that the rules contained in the four Geneva Conventions of 1949 for the Protection of Victims of War and in the Hague Convention (IV) of 1907 on the Laws and Customs of War on Land (except for administrative, technical, and logistical provisions) reflect customary law. It is also widely recognized that many, perhaps even most, of the provisions, principles, and rules contained in Additional Protocol I to the Geneva Conventions and some, perhaps even many, of the provisions contained in Additional Protocol II reflect customary law. Several rules pertaining to types of weapons, and especially the prohibition on the use of chemical weapons, are regarded as customary.” Quoted from Meron T, Customary Law. http://www.crimesofwar.org/a-z-guide/customary-law/. Accessed 30 July 2017.

  6. 6.

    The text of the Charter of the United Nations can be found at United Nations. http://www.unorg/en/charter-united-nations/. Accessed 30 July 2017.

  7. 7.

    1961 Harvard Draft Convention on the International Responsibility of States for Injuries to Aliens. http://readinglists.ucl.ac.uk/items/46B29567-93F9-31C3-293E-4CB55932CF47.html. Accessed 30 July 2017.

  8. 8.

    Draft Convention on the Prevention and Punishment of the Crime of Developing, Producing, Acquiring, Stockpiling, Retaining, Transferring or Using Biological or Chemical Weapons. http://www.sussex.ac.uk/Units/spru/hsp/documents/Draft%20Convention%20-%20English.pdf. Accessed 30 July 2017.

  9. 9.

    United Nations Treaty Collection. https://treaties.un.org/Pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXIII-1&chapter=23&Temp=mtdsg3&clang=_en. Accessed 30 July 2017.

  10. 10.

    United Nations. Member States. http://www.un.org/en/members/index.shtml. Accessed 30 July 2017.

  11. 11.

    World Trade Organization. Members and Observers. https://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm. Accessed 30 July 2017.

  12. 12.

    FCTC. Parties to the WHO Framework Convention on Tobacco Control. http://www.who.int/fctc/signatories_parties/en/. Accessed 30 July 2017.

  13. 13.

    U.S. Department of State. Vienna Convention on the Law of Treaties. http://www.state.gov/s/l/treaty/faqs/70139.htm. Accessed 30 July 2017.

  14. 14.

    Up to the completion of this book, the TPP’s fate is still uncertain due to President Trump’s withdrawal from it. It is yet to see whether the agreement will survive with some of the remaining 11 parties still being interested in having a TPP without the United States.

  15. 15.

    Statute of the International Law Commission, Art. 15 (1947).

  16. 16.

    Zemanekm K, Vienna Convention on the Law of Treaties Vienna, 23 May 1969—Historical Context. http://legal.un.org/avl/ha/vclt/vclt.html. Accessed 30 July 2017.

  17. 17.

    United Nations Treaty Collection. https://treaties.un.org/pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXIII-1&chapter=23&Temp=mtdsg3&lang=en. Accessed 30 July 2017.

  18. 18.

    Vienna Convention on the Law of Treaties, Part II, opened for signature 23 May 1969, 1155 U.N.T.S. 331.

  19. 19.

    Id. at Part III.

  20. 20.

    Id. at Part IV.

  21. 21.

    Id. at Part V.

  22. 22.

    Id. at Art. 2.1(a). For treaties between States and International Organizations or between international organizations, there is a similar treaty “Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations” being concluded on 21 March 1986. But it is yet to become effective. See United Nations Treaty Collection. https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXIII-3&chapter=23&lang=en. Accessed 30 July 2017.

  23. 23.

    Statute of the International Law Commission, Art. 15, second part (1947).

  24. 24.

    Id. at Art. 15, first part.

  25. 25.

    Cited from Sinclair (1984), p. 13.

  26. 26.

    Schmalenbach (2012), p. 85.

  27. 27.

    Supra note 13.

  28. 28.

    The reservations and declarations can be seen at supra note 17.

  29. 29.

    VCLT Article 66 (entitled “Procedures for judicial settlement, arbitration and conciliation”) provides:

    If, under paragraph 3 of article 65, no solution has been reached within a period of 12 months following the date on which the objection was raised, the following procedures shall be followed:

    1. (a)

      any one of the parties to a dispute concerning the application or the interpretation of articles 53 or 64 may, by a written application, submit it to the International Court of Justice for a decision unless the parties by common consent agree to submit the dispute to arbitration;

    2. (b)

      any one of the parties to a dispute concerning the application or the interpretation of any of the other articles in Part V of the present Convention may set in motion the procedure specified in the Annexe to the Convention by submitting a request to that effect to the Secretary-General of the United Nations.

  30. 30.

    Supra note 16.

  31. 31.

    Supra note 17.

  32. 32.

    See para 18 in the judgement; at http://www.icj-cij.org/docket/index.php?sum=505&code=bona&p1=3&p2=3&case=98&k=b7&p3=5. Accessed 30 July 2017.

  33. 33.

    The full text of VCLT Article 31 (entitled General rule of interpretation) is quoted below:

    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.

      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)

        Any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;

      2. (b)

        Any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

    3. 3.

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

      1. (a)

        Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

      2. (b)

        Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

      3. (c)

        Any relevant rules of international law applicable in the relations between the parties.

    4. 4.

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

  34. 34.

    Appellate Body Report, United States—Standards for Reformulated and Conventional Gasoline, at 17, WTO Doc. WT/DS2/AB/R (adopted 20 May 1996).

  35. 35.

    Appellate Body Report. European Communities—Customs Classification of Frozen Boneless Chicken Cuts, para. 176, WTO Doc. WT/DS269/AB/R, WT/DS286/AB/R, WT/DS269/AB/R/Corr.1, WT/DS286/AB/R/Corr.1 (adopted 27 Sept 2005).

  36. 36.

    The text of VCLT Article 32 (entitled “Supplementary means of interpretation”) is quoted below:

    Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

    1. (a)

      Leaves the meaning ambiguous or obscure; or

    2. (b)

      Leads to a result which is manifestly absurd or unreasonable.

  37. 37.

    Appellate Body Report, Japan—Taxes on Alcoholic Beverages, at 10, WTO Doc. WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R (adopted 1 Nov 1996).

  38. 38.

    Appellate Body Report, United States—Countervailing Duties on Certain Corrosion-Resistant Carbon Steel Flat Products from Germany, para. 61, WTO Doc. WT/DS213/AB/R, WT/DS213/AB/R/Corr.1 (adopted 19 Dec 2002).

  39. 39.

    The text of VCLT Article 33 (entitled “Interpretation of treaties authenticated in two or more languages”) is quoted below:

    1. 1.

      When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail.

    2. 2.

      A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree.

    3. 3.

      The terms of the treaty are presumed to have the same meaning in each authentic text.

    4. 4.

      Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.

  40. 40.

    Appellate Body Report, United States—Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada, para. 59, WTO Doc. WT/DS257/AB/R (adopted 17 Feb 2004).

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  1. Judicial Yuan, Constitutional Court, Taipei, Taiwan

    Chang-fa Lo

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Correspondence to Chang-fa Lo .

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Lo, Cf. (2017). Meaning of Codification and VCLT as the First Round of Codification of Customary Rules of Treaty Interpretation. In: Treaty Interpretation Under the Vienna Convention on the Law of Treaties. Springer, Singapore. https://doi.org/10.1007/978-981-10-6866-9_3

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  • DOI: https://doi.org/10.1007/978-981-10-6866-9_3

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