CABOS SUELTOS

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

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

(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.411

1. Introduction

189. Article 31(2) of the Vienna Convention augments the Article 31(1) context

criterion. It is a composite of four separate elements, one or more of which may of

themselves assist in determining the appropriate context of a treaty text subject to

interpretation. The four elements are (1) the preamble, (2) the annexes, (3) an

agreement by all parties connected with the treaty’s conclusion, and (4) an instrument

relating to the treaty’s conclusion made by one or more parties but accepted by all the

others. An important function of Article 31(2) is to ensure that the use of agreements

and instruments connected with a treaty’s conclusion is not treated as a subordinate

Article 32 means of interpretation.

190. Generally, the international case law relating to Articles 31(2)(a) and (b) is

sparse. Most international practice in this area relates to written instruments

associated with the conclusion of conferences or agreements.

Given the paucity of

the materials in respect of Article 31(2), the discussion that follows does not contain

411 _{This provision is the progeny of the following ILC draft articles: Article 71(1), Waldock III, YILC} (1964-II), at 52; Article 69(2), ILC Draft Articles 1964, YILC (1964-II), at 199; and Article 27(2), ILC Draft Articles 1966, YILC (1966-II), at 217. See Annex II.

412 _{In respect of the international law position, see generally, Fitzmaurice, supra note 76, at 12;} Fitzmaurice (1957), supra note 185, at 218; and Thirlway, supra note 91, at 37.

413 _{See Aust, supra note 4, at 189-191. See, e.g., the eleven resolutions adopted by the Diplomatic} Conference of 1949 when it adopted the four Geneva Conventions on international humanitarian law. Pictet, Commentary: IV Geneva Convention relative to the Protection of Civilian Persons in Time of

separate sections for the pertinent FIAT and international law jurisprudence (as has

been the usual structure adopted in this thesis). These will be discussed together.

2. Preamble

191. As discussed in the previous Section, numerous references have been made to

the preamble in FIAT interpretations to cast light on the object and purpose of the

treaty in dispute.

_{This accords with the use of the preamble in treaty interpretation}

in international law.

192. Also to be noted in relation to preambles is the reluctance of FIATs to consider

them as stand-alone substantive provisions. The Bayindir tribunal, in examining the

preamble of the BIT in question—which contained an express reference to fair and

equitable treatment—stated as follows:

Despite the use of the verb “agree”, it is doubtful that, in the absence of a specific provision in the BIT itself, the sole text of the preamble constitutes a sufficient basis for a self-standing fair and equitable treatment obligation under the BIT.416

193. This finding is consonant with international law, as is demonstrated by the

following observation in the Beagle Channel arbitration:

Although Preambles to treaties do not usually—nor are they intended to—contain provisions or dispositions of substance—(in short they are not operative clauses)—it is nevertheless generally accepted that they may be relevant and important as guides to the manner in which the Treaty should be interpreted, and in order as it were, to ‘situate’ it in respect of its objects and purpose.417

414 _{See, e.g., Amco (Jurisdiction), at para. 23; SGS v Philippines, at para. 116; Tokios (Opinion), at para.} 6; Tecmed, at para. 156; Siemens (Jurisdiction), at para. 81; American Manufacturing (Opinions), Arbitrator Golsong’s Separate Opinion, at 40, para. 13; Bayindir, at para. 137; Metalclad (Award), at para. 71; and CSOB (Jurisdiction), at paras. 64 and 73.

415 _{See supra note 360.}

416 _{Bayindir, at para. 230. The relevant provision of the BIT provided:}

The Islamic Republic of Pakistan […] and the Republic of Turkey […] agre[e] that fair and equitable treatment of investment is desirable in order to maintain a stable framework for investment and maximum effective utilization of economic resources.

3. Annexes

194. No FIAT award reviewed made reference to an annex as forming part of the

context during the interpretation of a treaty.

Similarly, there is a paucity of material

on this subject on the international law plane.

195. A distinctive practice is found concerning the interpretation of annexes in the

NAFTA and the 2004 US Model BIT. A tribunal hearing disputes arising out of these

agreements may be obliged to request that the interpretation of certain annexes be

made, respectively, by the FTC or the State parties. Interpretations issued under these

procedures are binding on the tribunal.

4. Agreement or Instrument in connection with Conclusion of Treaty

196. Of the FIAT awards reviewed, only one referred to an agreement or instrument

in connection with the conclusion of a treaty. This occurred in the Yaung Chi Oo

Trading v Myanmar award, in which the Joint Press Release of the Inaugural Meeting

of the ASEAN Investment Council was held to be ‘clearly an authoritative statement

made by relevant ministers of ASEAN Member States, including the Myanmar

Minister of Industry, as to their intentions at the time of the conclusion of the

Agreement’.

The press release appears to have had characteristics resembling an

Article 31(2)(b) instrument more than an Article 31(2)(a) agreement. Whether it was

categorized as one or the other would have made no real substantive difference.

418 _{For the sake of completeness, reference should be made to Lauder (Award), at para. 220 (noting that} a right to make an exception to a discriminatory measure in the BIT at issue was permitted if a reservation were made in an annex to that treaty; but no such reservation was made).

419 _{For example, Sinclair, supra note 6, at 127-130, fails to mention annexes in his discussion on the} context criterion.

420 _{See supra note 161.}

421 _{Yaung Chi Oo Trading v Myanmar (Award), at para. 74.}

422 _{Another instrument in connection with the conclusion of a treaty that is relevant to investment law is} Chairman’s Statement made at the Adoption Session of the Energy Charter Treaty, 17 December 1994.

197. Similar agreements or instruments are not uncommon in the general domain of

international law.

For example, during the conclusion of the 2004 United Nations

Convention on Jurisdictional Immunities of States and Their Property

full

agreement about the scope of the Convention could not be agreed. As a result, the

Chairman of the Ad Hoc Committee on Jurisdictional Immunities of States and Their

Property (established by the General Assembly) drafted a document entitled

“Understandings with respect to certain provisions of the Convention”, which is

annexed to the Convention.

423 _{See, e.g., Gardiner, Treaty Interpretation (2008), at 212-216.} 424 _{UN Doc. A/RES/59/38, 16 December 2004.}