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The Enduring but Unwelcome Role of Party Intent in Treaty Interpretation

  • Andrea K. Bjorklund (a1)
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Party “intent” is not one of the tools that the Vienna Convention on the Law of Treaties (VCLT) gives to treaty interpreters. To be sure, party intent is presumably reflected in the “object and purpose” of the treaty, but it is not a separate criterion; in fact, the VCLT implicitly excludes party intent from playing an interpretive role. Yet many decision-makers, counsel, and academics persistently look to party intent for guidance when interpreting treaties. The most favored nation (MFN) debate illustrates why party intent endures as an interpretive touchstone: treaty language, even when analyzed in context and in light of the convention's object and purpose, does not always lead to clear answers. Both Simon Batifort and J. Benton Heath and Stephan Schill, in their different ways, depart from traditional VCLT analysis and hark to party intent as a reason to endorse a modified approach to treaty interpretation. Yet they also illustrate why party intent is an imperfect tool: party intent is too malleable to be a conclusive guide to treaty meaning.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
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1 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UNTS 331 [hereinafter VCLT].

4 İçkale İnşaat Limited Şirketi v. Turkm., ICSID Case No. ARB/10/24, Award (Mar. 8, 2016).

5 Batifort & Heath, supra note 2, at 874.

6 Schill, supra note 3, at 916.

7 Batifort & Heath, supra note 2, at 913 (“A turn to bottom-up approaches, to the treaty text, and to the formal rules of treaty interpretation may be particularly appropriate in times of deep ideological contestation.”); Schill, supra note 3, at 916 (“I also agree with [Batifort & Heath] that the interpretation of MFN clauses in [international investment agreements] has to start with a treaty-by-treaty approach that is attentive to the text, context, and object and purpose of the clause in question.”).

8 See United Nations Conference on the Law of Treaties: Official Records: Documents of the Conference, 2 Y.B. Int'l L. Comm'n 219–20, para. 8 (1966):

The Commission … intended to indicate that the application of the means of interpretation in the article would be a single combined operation. All the various elements, as they were present in any given case, would be thrown into the crucible, and their interaction would give the legally relevant interpretation. Thus, article 27 [now article 31] is entitled “General rule of interpretation” in the singular, not “General rules” in the plural, because the Commission desired to emphasize that the process of interpretation is a unity and that the provisions of the article form a single, closely integrated rule.

9 Alan S. Rau & Andrea K. Bjorklund, BG Group and “Conditions” to Arbitral Jurisdiction, 43 Pepp. L. Rev. 577, 622–27 (2016).

10 Michael Waibel, Interpretive Communities in International Law, in Interpretation in International Law 147, 147 (Andrea Bianchi et al. eds., 2015).

11 VCLT, supra note 1, art. 31.

12 Id. art. 31(2). The context also extends to any agreement relating to the treaty made in conjunction with its negotiating or with its conclusion. Id.

13 Schill, supra note 3, at 923.

14 Id. at 917 (emphasis added).

15 “The text must be presumed to be the authentic expression of the intentions of the parties; and that, in consequence, the starting point of interpretation is the elucidation of the meaning of the text, not an investigation ab initio into the intentions of the parties.” United Nations Conference on the Law of Treaties: Official Records: Documents of the Conference, 2 Y.B. Int'l L. Comm'n 218, para. 4 (1966).

16 VCLT, supra note 1, art. 31(4) (“A special meaning shall be given to a term if it is established that the parties so intended.”).

17 Abby Cohen-Smutny & Lee Steven, The MFN Clause: What Are Its Limits?, in Arbitration Under International Investment Agreements: A Guide to the Key Issues 351, 381 (Katia Yannaca-Small ed., 2010) (emphasis added).

18 Industria Nacional de Alimentos, S.A. and Indalsa Peru, S.A. v. Peru, ICSID Case No. ARB/03/4, Ad Hoc Committee on Annulment (Sept. 5, 2007) (Sir Franklin Berman, dissenting, para. 9). Sir Frank was formerly the Legal Adviser in the UK's Foreign and Commonwealth Office.

20 Schill, supra note 3, at 928 (“If the parties wanted to enter a binding interpretation of Article 1103 of NAFTA, they could easily have done so, as they have on the interpretation of Article 1105, by issuing a joint interpretation through NAFTA's Free Trade Commission, a treaty organ established, inter alia, for that purpose.”).

22 On the difficulties in changing treaty language, see Wolfgang Alschner, Locked in Language: Historical Sociology and the Path Dependency of Investment Treaty Design, in Edward Elgar Research Handbook on the Sociology of International Law (Moshe Hirsch & Andrew Lang eds., forthcoming 2018).

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