Fitoplancton

Recourse may be had to supplementary means of interpretation, includ- ing 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:

(a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.

The Vienna Convention’s articles on treaty interpretation were adopted by unanimous vote and largely reflect preexisting customary international law. None- theless, there was extensive discussion at the drafting conference both on the formulation of Articles 31 and 32 and whether to include them at all. The principal issue to be resolved was whether and to what extent the intentions of the parties and the object and purpose of an agreement should supplement consideration of the text of the treaty in the process of interpretation. The final commentary to Articles 31 and 32 notes:

(2) Jurists also differ to some extent in their basic approach to the inter- pretation of treaties according to the relative weight which they give to:

(a) The text of the treaty as the authentic expression of the inten- tions of the parties;

(b) The intentions of the parties as a subjective element distinct from the text; and.

(c) The declared or apparent objects and purposes of the treaty. Some place the main emphasis on the intentions of the parties and in consequence admit a liberal recourse to the travaux pre´paratoires [the prepara- tory work of the treaty] and to other evidence of the intentions of the con- tracting States as means of interpretation. Some give great weight to the object and purpose of the treaty and are in consequence more ready, especially in the case of general multilateral treaties, to admit teleological interpretations of the text which go beyond, or even diverge from, the original intentions of the parties as expressed in the text. The majority, however, emphasizes the pri- macy of the text as the basis for the interpretation of a treaty, while at the same time giving a certain place to extrinsic evidence of the intentions of the parties and to the objects and purposes of the treaty as means of interpretation.

Notes and Questions

1. Should the phrase ‘‘take action’’ in Article IV of the Treaty of Guarantee be construed to include the use of force? On this point, is the meaning of Article IV ‘‘ambiguous or obscure’’?

2. What aspects of the context and the object and purpose of the Treaty of Guarantee are relevant to an interpretation of Article IV? Do the other agreements concluded along with the Treaty of Guarantee shed any light on its proper interpretation?

3. If Article IV is construed to permit only peaceful measures, does it add anything to the rights already possessed by the Guarantor Powers under inter- national law?

4. Is Cyprus’s argument that to construe Article IV to permit the use of force would render it incompatible with a peremptory norm persuasive? Dispositive? Would your answer be different if there was clear evidence that the parties intended to permit the use of force when they signed the agreement?

5. In the UN debates, none of the parties made reference to the travaux pre´paratoires of the 1960 accords. Does this suggest that the parties did not address the issue of the proper interpretation of Article IV at the time it was drafted? Why might they have failed to address that issue?

5. Treaties and Sovereignty

Sovereignty is a concept regularly invoked in international discourse, but its meaning is notoriously difficult to pin down. In many instances, sovereignty is used as shorthand for a particular legal principle or a subset of the attributes associated with statehood. Sovereignty is often invoked in opposition to a state’s participation in various treaty regimes, usually by domestic groups who object to what they perceive as a loss of national decision-making authority over the areas subject to regulation by the treaty.

Sovereignty was frequently invoked in the UN debates over Cyprus, usually as a ground for attacking the validity of the constraints placed upon Cyprus by the 1960 accords. For example, the representative of Morocco argued that:

18. . . . [T]he concept of sovereignty must at the very least include the total freedom of a free and independent country to be the sole architect of its constitution and to ensure that its content reflects, in the best possible way, the rights and guarantees of communities and private citizens alike— this, of course, in the absence of any kind of constraint or interference from abroad.

U.N. SCOR, 19th Sess., 1097th mtg., at 4, U.N. Doc. S/PV.1097 (1964). To this line of argument, Turkey responded:

94. . . . We are all sovereign countries here in the United Nations, but all of us have international commitments and we do not consider that to be a curtailment of sovereignty. We all have treaties by which we have accepted certain principles; we have treaties that give particular access to ships, for instance, in my country, to the [Black Sea] Straits. In other places there are minority rights protected by treaties. There is the Convention on Genocide to which we all must adhere. There are all sorts of commitments in international life which do not curtail sovereignty. There are also commitments to inter- national morality and decency, and these are no curtailment of sovereignty, as we all know.

Id. at 19.

Notes and Questions

1. Inevitably, every treaty limits a state’s freedom to act to some degree, just as a private contract constrains the behavior of the parties to it. Why then do states enter into treaties, and to what extent, if at all, should treaties be viewed as infringements on sovereignty? Does the subject matter of the treaty affect your answer?

2. In the S.S. Wimbledon (U.K., France, Italy, Japan, Germ.), 1923 P.C.I.J., (Ser. A), No.1, the Permanent Court of International Justice in 1923 discussed Germany’s reliance on sovereignty as a reason to escape limitations placed on Germany by the Treaty of Versailles. Under the treaty, Germany accepted a per- manent right of passage through the Kiel Canal for vessels of all nationalities. Following the outbreak of war between Russia and Poland, however, Germany sought to protect its neutral status by denying transit to a ship carrying arms for one of the belligerents. When charged with a breach of the treaty, Germany argued that a state’s ability to declare itself neutral was ‘‘an essential part of her sover- eignty,’’ and that by signing the Versailles Treaty, Germany ‘‘neither could nor intended to renounce by anticipation’’ what it described as the ‘‘inalienable right of states to liberty of action.’’ The Permanent Court held that ‘‘the right of entering into international engagements is an attribute of State sovereignty,’’ and that there- fore the limitations a state accepts under a treaty cannot later be renounced as impermissible infringements on that state’s sovereignty. Id. at 25.

3. The meaning of the term ‘‘sovereignty’’ has varied widely since medieval times. A common understanding of the term in modern public international law is that it entails ‘‘the whole body of rights and attributes which a State possesses in its territory, to the exclusion of all other States, and also in its relations with other States.’’ Corfu Channel Case (U.K. v. Alb.), 1949 I.C.J. 39, 43 (opinion of Judge Alvarez). Similarly, Professor Helmut Steinberger defines ‘‘sovereignty’’ as ‘‘the basic international legal status of a State that is not subject, within its territorial jurisdiction, to the govern- mental, executive, legislative, or judicial jurisdiction of a foreign State or to foreign law other than public international law.’’ Helmut Steinberger, Sovereignty, in Ency- clopedia of Public International Law 500, 512 (1992). But as Professor Louis Henkin points out in the following excerpt, the term ‘‘sovereignty’’ often obscures more than it reveals: