Treaty Interpretation, the VCLT and the ICC Statute: A Response to Kevin Jon Heller & Dov Jacobs

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In response to my recent post on whether the ICC can prosecute for use of chemical weapons in Syria,  my friend Kevin Jon Heller raises an important issue of treaty interpretation over at Opinio Juris. His comments to my previous post set out the issue quite clearly: should the ordinary meaning of a treaty text trump the intention of the parties with regard to that treaty? Also Dov Jacobs, in a typically excellent post at Spreading the Jam, raises the point about whether the VCLT applies to the ICC Statute at all.

My answer to Kevin’s question is yes! Ordinary meaning of a treaty text should trump the supposed intention of the parties to the treaty. This is what the VCLT says but I answer that question in affirmative because I also think the VCLT was right to say so. I agree with Dov’s point but only to a point. I do not think the VCLT rules on treaty interpretation should apply in their entirety to the ICC Statute but that does not mean they do not apply at all. I discussed these points as comments to my earlier post but thought it would be useful to make my responses a separate post.

The Usefulness/Uselessness of Drafting History and Intention of the Parties

The reason to prefer ordinary meaning to the supposed intention of the parties, particularly in a multilateral treaty, is because the intention of the parties can be and is often difficult to glean apart from the actual words used. In other words, one should only very rarely conclude that ordinary meaning and clear words do not reflect the intention of the parties One might say, “but we can glean the intention from drafting history and if that differs from the words we should use that”. The problem is that the drafting history is often fragmentary and incomplete, in the case of multilateral treaties. Some (usually very few) states will say something on the record about a particular text and the majority will not. Then the temptation is to draw inferences from the way in which the negotiations proceeded (what was changed, what was left out, when the changes were made, in what order etc). But all of that will usually be assumptions about what all the parties intended. They may be logical assumptions but are still assumptions.

Different States may have different reasons for making particular changes, inserting particular words etc. Indeed members of the delegations of the same State may have different thoughts with regard to particular texts. Apart from the point made above, a number of personal experiences regarding the usefulness of drafting history also lead me to the conclusion that it is often unreliable. In writing a piece some years ago about the ICC, I sent the piece to two people who were members of a particular State’s delegation at Rome in 1998. This is a State that was intimately involved in the negotiations and that takes these things seriously. The two members of the same State’s delegations gave me different responses about what was intended with respect to particular provisions of the Rome Statute! This is the same State! When one then broadens that out to nearly 200 States the problem is, of course, magnified. A couple of weeks after the Kampala Review Conference, I attended a meeting in which a number of state representatives who were in Kampala were also present. I asked them about what was intended with respect to whether the consent of the alleged aggressor State would be necessary for the ICC prosecutions with respect to aggression and received different answers.

The particular issue of chemical weapons and the ICC Statute discussed in my  earlier post and in Kevin’s post illustrates this problem of how we glean intention, apart from the words used. Kevin makes the assumption that by deleting the specific reference to “chemical weapons” at the same time as the reference to “nuclear weapons” was deleted, States were intending not to criminalise the use of chemical weapons directly. In my view, as likely is that many States simply could not stomach a text that would specifically mention chemical weapons while not specifically mentioning nuclear weapons. This might have been regarded as just politically unacceptable. This does not mean that they did not realise that the Statute actually does criminalise the use of chemical weapons. I do not think that the lawyers were so bad that they did not realise that in all probability chemical weapons were still caught by the wording of the Statute left in. Just like lawyers for the P5 are not so bad that they failed to realise that just because the words “nuclear weapons” were removed does not mean that it is possible to include the use of nuclear weapons in the provisions dealing with “employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices”. Quite likely that the game being played was simply the political one of let’s not specifically mention these weapons, and, most certainly, lets not mention one without mentioning the other.

However, whether one agrees with the speculations in the previous paragraph or not, drafting history does not answer the question about what all the parties to the treaty intended. Moreover the whole point of drafting history is to agree a text. It is that end point – the text – that is agreed by all. Whatever went before is not agreed by all.

The Application of VCLT Treaty Interpretation Rules to the ICC Statute

With regard to Dov’s post at Spreading the Jam, I would not say that the VCLT does not apply at all to the ICC Statute but I do think that despite the fact that the Rome Statute is a treaty, the VCLT rules on treaty interpretation do not and should not apply in their entirety to the ICC Statute. This is because the ICC Statute is an instrument of criminal law. The rule that one starts from the text should still apply however, when it comes to clarifying ambiguity I have argued elsewhere that we should not automatically refer to drafting history in the case of a criminal law instrument. There are other rules that also apply. I make this point in my essay on “The Sources of International Criminal Law” in The Oxford Companion to International Criminal Justice. Let me quote what I said there:

“the principle in dubio pro reo (or favour rei) requires that in the interpretation of criminal law instruments any doubt should benefit the accused. This principle has been referred to in ICTY and ICTR cases, and is explicitly provided for in Article 22(2) of the ICC Statute, which provides that: “The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.” In strict terms, the application of the principle in dubio pro reo should modify the application of the Vienna Convention methods of interpretation. This is because one of the limited reasons justifying reference to the preparatory work of a treaty is where the interpretation reached under Article 31 “leaves the meaning ambiguous or obscure.” Once a decision is made that there is ambiguity, Article 22(2) of the ICC Statute requires that the meaning most favourable to the accused ought to be adopted. The test of ambiguity required by the ad hoc tribunal has been a rather low one in that the principle of favouring the accused is said to apply “where there is a plausible difference of interpretation or application.”  Thus, where there is such a plausible difference of meaning, the Court ought not to proceed to attempt to use the preparatory work to resolve that ambiguity in a manner unfavourable to the accused. However, this does not mean that all reference to the preparatory work is excluded when interpreting the Statute. Such reference may be used to confirm a meaning already reached. Also, the presence of ambiguity may be revealed only by reference to the preparatory work since “the clearness or ambiguity of a provision [is] a relative matter; sometimes one [has] to refer [to] the preparatory work or look at the circumstances surrounding the conclusion of the treaty in order to determine whether the text was really clear and whether the seeming clarity was not simply a deceptive appearance.”  In such circumstances, the accused ought not to be precluded from relying on the preparatory work.” [pp. 44-45]

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    Kevin Jon Heller says

    August 25, 2013

    My thanks to Dapo for his thoughtful response. I agree that in the absence of a clear collective intention on the part of the drafters of a specific provision in a treaty, it makes sense to rely on the ordinary meaning of that provision. I also agree that it can be extremely difficult, if not impossible, to reliably identify the collective intention behind treaty provisions. But I think it is just as untenable to argue that we can never identify the collective intention behind a particular treaty provision as it is to argue that we always can. Indeed, the drafters of the VCLT obviously assumed that collective intentions are sometimes knowable, as indicated by Art. 31(4)’s requirement that “[a] special meaning shall be given to a term if it is established that the parties so intended.” If the intent to give a special meaning to a term is radically unknowable, Art. 31(4)’s inclusion in the VCLT makes little sense.

    Perhaps Art. 31(4) addresses my concern about the VCLT’s emphasis on “ordinary meaning.” Perhaps judges scrupulously avoid simply reaching for their OED when it’s clear that the drafters were giving a special meaning to a particular term. But I’m skeptical. After all, a careful scholar like Dapo did not even mention Art. 31(4) in his analysis (in a blog post, to be sure!) of the meaning of “poison” in Art. 8 of the Rome Statute. Moreover, I would argue that Art. 31(4) of the VCLT does not go far enough — if judges must (“shall”) take special meanings of terms into account, why not special meanings of sentences? Of provisions? Of whole section of treaties? If intended meaning can trump ordinary meaning, as Art. 31(4) accepts, why should that be limited solely to individual terms?

    My position on treaty interpretation, it is worth noting, is anything but radical. I’m not a comparative legislation scholar, but I think it is fair to say that most domestic common-law systems have long since abandoned the idea that the ordinary meaning of a provision in a statute should be preferred to the meaning that is consistent with the legislative intent behind that provision. (I won’t hazard a guess about civil-law systems.) In Australia, for example, courts used to follow the “literal approach” to statutory interpretation, which allowed recourse to intent only when an attempt to apply ordinary meaning produced an ambiguity, absurdity, or inconsistency. Now courts follow the “purposive approach,” which instructs courts to adopt whatever interpretation of a statute is most consistent with Parliament’s rationale for adopting it. The parallel to the VCLT is both obvious and very much not accidental — both the VCLT and Australia’s literal approach are creatures of an era in which interpretation was still viewed as largely mechanical and objective. Domestic systems have recognized the folly of that approach; isn’t it about time international law recognized it, as well?

    Kevin Jon Heller says

    August 25, 2013

    It's also worth quoting Lord Griffith in Pepper v Hart [1993] AC 593:

    The object of the court in interpreting legislation is to give effect so far as the language permits to the intention of the legislature. If the language proves to be ambiguous I can see no sound reason not to consult Hansard to see if there is a clear statement of the meaning that the words were intended to carry. The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted.

    Ekaterina says

    August 25, 2013

    The original question was about the ordinary meaning of a treaty text trumping the intention of the parties with regard to that treaty. Yet the answer is about trumping the SUPPOSED intention of the parties. The idea according to which the ordinary meaning of the words should overweight some hard-to-establish specific sense delegations might have agreed upon is defensible. The same is not true when parties' intention is clear. International law is consensual by nature. States as well as its other subjects shall not be bound by any provision of any agreement unless they have consented to. When ordinary meaning of a treaty text differs from the meaning the parties intended to confer upon it, obligations arising from the latest only may be expected to be carried out. Whatever obligations arise from the former, they form a different treaty which has to be consented to in order to entail legal consequences.

    Dapo Akande says

    August 26, 2013

    Ekaterina and Kevin,

    The reason I spoke about the supposed intention of the parties was to emphasise that it is often difficult to establish what the common intention of the parties. So when one speaks about the intention prevailing over the words used, often one would be speculating about what the common intention was. Using that speculative and supposed intention to prevail over ordinary meaning is what I object to.

    I do agree with Kevin's comment that one should not say that we can never know what the common intention is. In cases where the common intention is clear and where it differs from the ordinary meaning Art. 31(4) that Kevin rightly points should take care of that situation (and I would interpret Art. 31(4) perhaps more broadly than Kevin does and extend it beyond special meaning of words).

    To reiterate, the problem is that the search for the intention of the parties is often one fraught with problems. Although Kevin is right that many domestic systems allow use of a purposive approach. But note that purposive approach and intent with regard to a particular provision are not necessarily the same thing (Art. 31(1) does include reference to objects and purpose). The problem with seeking the intention of the parties with regard to a particular provision is that in multilateral treaty negotiation, it may be hard to discern with any certainty what the common intent of the parties was. In cases of ambiguity, it is only rarely the case that the intention of the parties was clear but the drafters and lawyers were just so bad that they failed to record it faithfully. When we go to drafting history it is often because there is lack of clarity and a text that is unclear is often so for a reason. It may be that the parties failed to agree on how a particular question ought to be resolved but were content with a form of words that would accommodate different views on drafting and leave the hard question of how to answer the difficult question until a later point. Or, the parties may just not have thought about the particular issue that then arises later. These problems are so common that I doubt that point sometimes made that in seeking to interpret a treaty one is looking for the common intent of the parties. In many cases, an honest appraisal ought to be that there was no common intention.

    Guy says

    August 26, 2013

    I still have problems with the ICC Statute provision that 'In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted', because I think that in dubio pro reo applies to the facts, not to the law. The law simply states something, the Judges' role is to establish what on the basis of the letter of the Statute and other applicable provisions. If the law establishing a crime/mode of liability is too vague, it should just not be applied because of the nullum crimen principle that requires a degree of specificty. What the Judges can do is to give the benefit of the doubt to the accused on the facts, but I do not think that criminal law principles require them to just choose a more favourable interpretation of the law.
    Having said this, of course ICC Judges should follow Article 22, as it is in the ICC Statute - but I still find it an unconvincing extension of the principle in dubio pro reo.

    Kevin Jon Heller says

    August 26, 2013

    Dapo's comment narrow the distance between us considerably. Just two final points. First, the hallmark of the purposive approach is that it does not distinguish between textual and extratextual sources with regard to purpose -- the drafting history can be relied on in the first instance as long as it sheds light on Parliament's purpose for enacting the statute; that purpose does not have to be stated in the statute. Second, I'm not convinced that it is more difficult to divine collective intent with regard to a multilateral treaty than with regard to a statute adopted by hundreds of legislators. Sometimes it will; sometimes it won't. When it is possible, I see no justification for disregarding intended meaning in favour of "ordinary meaning."

    Jordan says

    August 26, 2013

    some of the Realist recognitions have been that no rule is self-applicative, i.e., that human choice is necessary with respect to interpretation and application; that "meaning" is dynamic; that "ordinary" meaning is generally shared meaning and is not ultimately based on some sort of "consent." Dapo has recognized some significant points regarding the formation of multilateral treaties, such as: drafters often agree to use vague terms (so that more can "consent" to sign on), sometimes agree to disagree and gain consensus around vague terms, sometimes understand that the meaning of vauge terms will have to develop in the future, that an agreement is a process (or that meaning is a process) and that is better to allow that process to develop instead of set it in cement; that those who pretend that rules have a set content divorced from ongoing general patterns of human expectation may be trying to fool themselves or others, that these recognitions pertain with respect to "rules" in treaties, constitutions, or domestic legislation and even re: contracts.
    These recognitions were around long before the Vienna Convention was created. In any event, the Convention does not focus on "consent" as the basis for meaning, but on "ordinary" meaning in light of various objects and purposes, other relevant international law, subsequent relevant international law, etc.

    Manuel Ventura says

    August 26, 2013

    Just to follow up on Guy's point, the ICTY Appeals Chamber has split on the very issue of whether in dubio pro reo applies to question of fact or questions of law or both. In separate opinions in Limaj et al., Judge Shahabuddeen opined that it should apply to both, whereas Judge Schomburg (like Guy) was of the view that it only applied to questions of fact. To my knowledge the ICTY has not definitely ruled on the question. On the other hand, the STL Appeals Chamber in its February 2011 Applicable Law decision explicitly invoked in favor rei in its interpretation of the STL's Statute. So I think the jury is still out on that one, though the Rome Statute may influence change in this respect.

    Jordan says

    August 26, 2013

    An example of an ICC provision that might be used for prosecution and that is patently not self-applicative is Article 8(2)(b)(xx), especially with respect to the normative standards: “of a nature,” “superfluous,” and “unnecessary.” Proper choice concerning application of a word such as “unnecessary” will involve attention to context, other legal policies at stake (such as the customary principles of necessity and proportionality), and past trends in decision (e.g., for guidance concerning criteria or meaning). Perhaps some are not aware, but proper choice concerning application of absolute prohibitions of “torture,” “cruel” treatment, and “inhuman” treatment demand the same attention to context, other legal policies at stake, and past trends in decision. The words are not self-applicative. And what guidance concerning “torture” has been provided by some of the tribunals on the criminal and civil side? “Torture” involves “severe” pain or suffering, etc. – and the word “severe” is certainly not self-applicative – all of which keeps us employed! With respect to waterboarding, it may be useful for one to realize that at the time of the Bush-Cheney regime in the U.S. at least twenty-nine U.S. federal and state court cases and three cases from the European Court of Human Rights and the Inter-American Court of Human Rights had recognized that waterboarding or related inducement of suffocation is torture. Remarkably, the same recognition was contained in seven U.S. Department of State Country Reports on Human Rights Practices of other countries prior to and during the Bush-Cheney program of “tough” interrogation.

    Raymond Savadogo says

    August 27, 2013

    Dear Professors (Dapo & Heller),

    First allow me to thank you for your brillant debate. My response to the question to know if "chimical weapons" are included into "poisons and empoisoned weapons" under article 8 (2) (b) (xvii) is "no". Basing on article 21 (1) (b) of the Rome Statute, the reason is that, States' practices araising from costumary law (http://www.icrc.org/eng/assets/files/other/customary-international-humanitarian-law-i-icrc-eng.pdf) fundamentally differenciated the 2 conducts: "Rule 72. The use of poison or poisoned weapons is prohibited", "Rule 74: The use of chemical weapons is prohibited".

    According to the principle of "in dubio pro reo" it has already been applied by the ICTY in a lot of cases.

    All the best,
    Ray

    Barrie Sander says

    August 29, 2013

    A further point for consideration is how ICC judges, when interpreting definitions of crimes under the Rome Statute, should reconcile reliance on Art. 31(1) VCLT, which makes reference to interpretation of a treaty "in the light of its object and purpose", with reliance on Art. 22(2) of the Rome Statute which requires that the definition of a crime "shall be strictly construed". Arguably, we have here the core tension between:

    - "the international" of ICL, viewing the Rome Statute as simply another international treaty which should be interpreted in light of its object and purpose (which, on one view, could be construed to mean the aim of ending impunity and rendering justice to victims, leading to expansive interpretations of crimes); and

    - "the criminal" of ICL, viewing the Rome Statute as a criminal statute which should be strictly construed so as to uphold the rights of the defendant (and consequently leading to narrower interpretations of crimes).

    Two other points to add (from Cassese's International Criminal Law (3rd ed.)):

    (1) The principle favor rei, pursuant to which, when faced with conflicting interpretations of a rule, the construction favouring the accused should be adopted, was upheld by the ICTR TC in Akayesu regarding the interpretation of the word 'killing' in the Genocide Convention and the Statute of the ICTR (paras 500-501), and by the ICTY TC in Krstic regarding the interpretation of the notion of 'extermination' as a crime against humanity (para. 502) (see Cassese's ICL, p.35).

    (2) The principle in dubio pro rei, pursuant to which a construction favourable to the accused should be adopted in case of ambiguity when appraising the evidence was upheld by the ICTY TC in Stakic (para. 416) (see Cassese's ICL, pp.35-36).