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DOMESTIC EXPLANATORY DOCUMENTS AND TREATY INTERPRETATION
Published online by Cambridge University Press: 06 October 2017
Abstract
The article discusses the increasing use by international courts and tribunals of domestic explanatory materials—such as various statements, reports, and explanatory memoranda that usually complement the domestic approval of treaties—in the process of treaty interpretation. After examining the types of materials that can be used as interpretative aids in accordance with the general rules on treaty interpretation (Articles 31–32 VCLT), the article scrutinizes the various ways in which domestic explanatory materials have informed the interpretation of treaty provisions in the practice of international adjudicatory bodies. The analysis focuses on the legal grounds on which such materials have been admitted in the interpretative process, the reasons for which resort has been made to them by the adjudicating body, as well as the circumstances in which such documents have been invoked by the litigating parties. The article then discusses certain advantages and disadvantages stemming from the use of domestic explanatory materials in the interpretative process.
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References
1 HICEE B.V. v The Slovak Republic, UNCITRAL, PCA Case No. 2009–11, Partial Award of 23 May 2011.
2 Vienna Convention on the Law of Treaties, Vienna, 23 May 1969, entered into force on 27 January 1980; 1155 UNTS 331; 8 ILM 679 (1969).
3 In academic literature, the use of such documents is usually only briefly mentioned (see eg Weeramantry, JR, Treaty Interpretation in Investment Arbitration (OUP 2012) 132 Google Scholar), or discussed in the context of other documents of unilateral origin (see eg Gardiner, R, Treaty Interpretation (OUP 2008) 106–8Google Scholar).
4 For a study of this issue, see Vierdag, EW, ‘The Time of the ‘‘Conclusion’’ of a Multilateral Treaty: Article 30 of the Vienna Convention on the Law of Treaties and Related Provisions’ (1988) 59 BYBIL 75 Google Scholar.
5 ibid, 86. See also Gardiner (n 3) 211.
6 In practice, the time span within which a particular instrument can still be considered as having been made ‘in connection with the conclusion of the treaty’ can be considerably broad. An interesting example is the Decision of the Member States of the European Union, dated as late as 15 December 2016, containing an interpretative statement in relation to the EU–Ukraine Association Agreement of 21 March 2014, which was still considered to be an instrument within the meaning of art 31(2)(b) VCLT. See European Council, ‘Opinion of the Legal Counsel’, Brussels (12 December 2016) (OR. en), EUCO 37/16, LIMITE, JUR 602. That interpretative statement was prepared precisely to address concerns expressed during the domestic approval of the Agreement in the Netherlands.
7 See the deliberations of the ILC on that point during the 769th meeting in 1964; UNYBILC 1964/1, 311–13. In that context, the discussion touched on the kind of unilateral understandings of treaty provisions that are frequently submitted to the US Senate. Shabtai Rosenne considered that a ‘purely unilateral interpretative statement of that kind’ could not bind the parties and therefore suggested the inclusion of the formula ‘accepted by’ so as to avoid a reference that might include purely unilateral action (UNYBILC 1964/1, 313, paras 52, 54 (Rosenne)). Special Rapporteur Sir Humphrey Waldock, on the other hand, thought that such statements would in any event not fall within the remit of the provision, since they would not be germane to the actual conclusion of the treaty (UNYBILC 1964/1, 313, para 53 (Waldock)).
8 See eg Kasikili/Sedudu Island (Botswana/Namibia) (Judgment) [1999] ICJ Rep 1045, paras 47–79, where the ICJ did not accept that a report prepared by a British colonial officer was able to represent subsequent practice in the application of a boundary treaty in the sense of art 31(3)(b) VCLT, since that document had never been made known to the other treaty party and remained at all times an internal document. For the same reason, it did not accept Botswana's domestic legislative documents relating to the establishment of two national parks.
9 This is not to say that information provided for in explanatory memoranda could not be relevant to establishing the existence of a tacit agreement. See Maritime Dispute (Peru v Chile) (Judgment) [2014] ICJ Rep 3, paras 121–122, where the ICJ considered a 26 July 1954 Message from the Chilean Executive to the Congress for the approval of certain agreements concluded in 1952 with a view to determining whether there was a tacit agreement between Peru and Chile as to their lateral maritime boundary.
10 See Klabbers, J, ‘International Legal Histories: The Declining Importance of Travaux Préparatoires in Treaty Interpretation?’ (2003) 50 NILR 267, 279 CrossRefGoogle Scholar.
11 See eg Lauterpacht, H, ‘Some Observations on Preparatory Work in the Interpretation of Treaties’ (1935) 48 HarvLRev 549, 552 Google Scholar; or Ris, M, ‘Treaty Interpretation and ICJ Recourse to Travaux Préparatoires: Towards a Proposed Amendment of Articles 31 and 32 of the Vienna Convention on the Law of Treaties’ (1991) 14 BCIntl&CompLRev 111, 133 Google Scholar. For a rejection of such proposition, see Yasseen, MK, ‘L'interprétation des traités d'après la convention de Vienne sur le droit des traités’ (1976-III) 151 RdC 1, 83 Google Scholar.
12 For example, in the recent revision of the US model bilateral investment treaty, the Office of the United States Trade Representative and the US Department of State have sought and received extensive input from Congressional advisory and other relevant committees, even though the revisions to the model BIT in principle do not require Congressional action. See United States Concludes Review of Model Bilateral Investment Treaty, available at <https://2009-2017.state.gov/r/pa/prs/ps/2012/04/188198.htm>.
13 See H Waldock, ‘Third Report on the Law of Treaties’, UNYBILC 1964/II, 59, para 22.
14 ILC, ‘Draft Articles on the Law of Treaties’, UNYBILC 1966/II, 223, para 20. Many ILC members argued in favour of a broad notion of preparatory works. During deliberations within the ILC, for example, Mustafa Kamil Yasseen took the view that ‘the very nature of a convention as an act of will made it essential to take into account all the work which had led to the formation of that will—all the material which the parties had had before them when drafting the final text’. UNYBILC 1966/1, 205, para 25 (Yasseen).
15 Judgment in the Case of Belgium, France, Switzerland, the United Kingdom and the United States v the Federal Republic of Germany (Young case) (Judgment) 16 May 1980, reproduced in (1980) 19 ILM 1357, 1380, para 34.
16 See Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) (Judgment) [2002] ICJ Rep 625, para 57.
17 See Territorial Dispute (Libyan Arab Jamahiriya/Chad) (Judgment) [1994] ICJ Rep 6, para 55.
18 See WTO, European Communities–Customs Classification of Certain Computer Equipment – Report of the Appellate Body (22 June 1998) WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R, para 92, where the past customs classification practice of one of the treaty parties was consulted as part of the circumstances of the conclusion of the WTO Agreement.
19 See Linderfalk, U, On the Interpretation of Treaties: The Modern International Law as Expressed in the 1969 Vienna Convention on the Law of Treaties (Springer 2007) 249–55CrossRefGoogle Scholar.
20 See UNYBILC 1966/I(2), 202, para 50 (Ago).
21 See eg Yasseen (n 11) 79; Villiger, ME, Commentary on the 1969 Vienna Convention on the Law of Treaties (Nijhoff 2009) 445CrossRefGoogle Scholar; Bouthillier, Y Le, ‘Article 32’ in Corten, O and Klein, P (eds), The Vienna Conventions on the Law of Treaties: A Commentary (Oxford University Press 2011) 841, 851 Google Scholar; Sbolci, L, ‘Supplementary Means of Interpretation’ in Cannizzaro, E (ed), The Law of Treaties beyond the Vienna Convention (Oxford University Press 2011) 145, 158 Google Scholar; Linderfalk (n 19) 239; or Dörr, O, ‘Article 32, Supplementary Means of Interpretation’ in Dörr, O and Schmalenbach, K (eds), Vienna Convention on the Law of Treaties (Springer 2012) 571, 580 CrossRefGoogle Scholar.
22 See WTO, European Commission – Customs Classification of Frozen Boneless Chicken Cuts – Report of the Appellate Body (12 September 2005) WT/DS269/AB/R and WT/DS286/AB/R, para 283.
23 Among the means additional to those expressly mentioned in art 32 VCLT, commentators have usually had the tendency to classify the general principles and maxims of interpretation deriving from domestic law (ejusdem generis, contra proferentem, in dubio mitius etc), to which reference had often been made in the jurisprudence of international tribunals before the adoption of the VCLT. See Jennings, R and Watts, A, Oppenheim's International Law (9th edn, Longman 1996) 1278–81Google Scholar; and Aust, A, Modern Treaty Law and Practice (2nd edn, Cambridge University Press 2007) 248–9CrossRefGoogle Scholar.
24 See on this Villiger (n 21) 445–6; or Dörr (n 21) 580–1.
25 The only occasion that the discussion touched upon this kind of materials in the ILC was in connection with the term ‘instrument’ as used in art 31(2)(b) VCLT. See UNYBILC 1964/1, 313.
26 Waldock (n 13) 58, para 21.
27 The focus of the present analysis is on the interpretative practice subsequent to the adoption of the VCLT. But already prior to that, it was not that exceptional in decisions of domestic courts or mixed commissions to refer to parliamentary documents for the purpose of interpreting treaty clauses. See eg the decision of the Franco-Italian Conciliation Commission in the matter of Italian Special Capital Levy Duties (29 August 1949) 18 ILR 406, 410–13; the decision of the US International Claims Commission in the Howard Claim (1951–1954) 21 ILR 291, 292–3; or the decision of the Court of Appeal of Saarbrücken in Ministère Public v Oliger (13 April 1951) 18 ILR 431, 432.
28 Sovereignty over Pulau Ligitan and Pulau Sipadan (n 16) paras 48 and 61, respectively.
29 ibid, para 46.
30 Oil Platforms case (Islamic Republic of Iran v United States of America) (Preliminary Objection) [1996] ICJ Rep 803, para 29.
31 See Fisheries Jurisdiction (United Kingdom v Iceland) (Jurisdiction) [1973] ICJ Rep 3, para 17; and Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v Norway) (Judgment) [1993] ICJ Rep 38, paras 28–29.
32 See on this A Riddell and B Plant, Evidence before the International Court of Justice (2009) 410–16.
33 See eg Dispute between Argentina and Chile concerning the Beagle Channel (Chile/Argentina), Award (18 February 1977) XXI UNRIAA 57, paras 112ff; United States-United Kingdom Arbitration concerning Heathrow Airport User Charges, Award on the First Question (30 November 1992) 102 ILR 216 and XXIV UNRIAA 1, para 2.1.6; Ethyl Corporation v The Government of Canada, UNCITRAL, Award on Jurisdiction of 24 June 1998, para 84; Methanex Corporation v United States of America, UNCITRAL, Partial Award of 7 August 2002, paras 97–101, 146; Marvin Roy Feldman Karpa v United Mexican States, ICSID Case No ARB(AF)/99/1, Award of 16 December 2002, para 181; Generation Ukraine, Inc. v Ukraine, ICSID Case No ARB/00/9, Award, 16 September 2003, paras 15.2–15.6; CMS Gas Transmission Company v The Republic of Argentina, ICSID Case No ARB/01/8, Award of 12 May 2005, paras 359–362, 366–369; Merrill & Ring Forestry L.P. v The Government of Canada, UNCITRAL, ICSID Administered Case, Award of 31 March 2010, para 191.
34 See eg Mondev International Ltd. v United States of America, ICSID Case No ARB(AF)/99/2, Award (11 October 2002) para 111 (‘Whether or not explanations given by a signatory government to its own legislature in the course of ratification or implementation of a treaty can constitute part of the travaux préparatoires of the treaty for the purposes of its interpretation, they can certainly shed light on the purposes and approaches taken to the treaty’); or Global Trading Resource Corp. and Globex International, Inc. v Ukraine, ICSID Case No ARB/09/11, Award of 1 December 2010, para 50 (‘Without going into the question of how the letter might properly be categorized within the framework for interpretation given in Articles 31 and 32 of the Vienna Convention on the Law of Treaties’).
35 For an example of the former, see Pope & Talbot Inc. v The Government of Canada, UNCITRAL, Award on the Preliminary Motion by the Government of Canada to Dismiss the Claim because it Falls Outside the Scope and Coverage of NAFTA Chapter Eleven ‘Measures Relating to Investment’ of 26 January 2000, para 29, where the Tribunal refrained from taking a position on the legal status of Canada's Statement on Implementation of NAFTA, which the investor invoked, but Canada objected to. For an example of the latter, see Vladimir Berschader and Moïse Berschander v The Russian Federation, SCC Case No 080/2004, Award of 21 April 2006, para 158, where the explanatory statement was found to be contrary to the ordinary meaning.
36 See Philippe Gruslin v Malaysia, ICSID Case No ARB/99/3, Award of 27 November 2000, para 21.5, where reference was made to Rule 34 of the ICSID Arbitration rules to the effect that ‘it is for the Tribunal to determine the probative value of the evidence of the underlying factual matrix at the time the IGA [ie the treaty] was made’.
37 Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau (Guinea/Guinea-Bissau), Award, 14 February 1985; XIX UNRIAA 149; 25 ILM 252 (1986), para 61.
38 ibid, para 68.
39 ibid, para 60.
40 Maritime Delimitation in the Area between Greenland and Jan Mayen (n 31) paras 28–29.
41 Sovereignty over Pulau Ligitan and Pulau Sipadan (n 16) 48 and 61.
42 Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau (n 37) para 70.
43 ibid, paras 73, 76.
44 Fisheries Jurisdiction (n 31) paras 17–18, 20 and 33.
45 Aguas del Tunari S.A. v Republic of Bolivia, ICSID Case No ARB/02/3, Decision on Respondent's Objections to Jurisdiction of 21 October 2005, paras 271–272.
46 ibid, para 266.
47 ibid, para 274.
48 Kiliç Ĭnşaat Ĭthalat Ĭhracat Sanayi Ve Ticaret Anonim Şirketi v Turkmenistan, ICSID Case No ARB/10/1, Decision on Article VII.2 of the Turkey–Turkmenistan Bilateral Investment Treaty of 7 May 2012, para 9.17.
49 ibid, para 9.18; emphasis added.
50 ibid, paras 9.20 and fn 48 to para 9.21.
51 ibid, para 9.21.
52 Kiliç Ĭnşaat Ĭthalat Ĭhracat Sanayi Ve Ticaret Anonim Şirketi v Turkmenistan, ICSID Case No ARB/10/1, Decision on Annulment of 14 July 2015, para 125.
53 Muhammet Çap & Sehil In_aat Endustri ve Ticaret Ltd. Sti. v Turkmenistan, ICSID Case No ARB/12/6, Decision on Respondent's Objection to Jurisdiction under Article VII(2) (13 February 2015) paras 260–261.
54 ibid, paras 257, 268.
55 ibid, para 251.
56 ibid, para 248.
57 ibid, paras 260–261.
58 HICEE v Slovakia (n 1) paras 122–147.
59 The Dissenting Arbitrator, on its turn, questioned the consistency (from a policy perspective) of the Explanatory Note, as well as its reliability. HICEE B.V. v The Slovak Republic, UNCITRAL, PCA Case No 2009–11, Dissenting Opinion of Judge Charles N Brower of 23 May 2011, paras 28–33.
60 ibid, para 116.
61 ibid, paras 127 and 129.
62 ibid, para 134.
63 ibid, fn 184 to para 135.
64 ibid, paras 117, 121.
65 ibid, para 135.
66 ibid, para 136.
67 Millicom International Operations B.V. and Sentel GSM SA v The Republic of Senegal, ICSID Case No ARB/08/20, Decision on Jurisdiction of the Arbitral Tribunal (16 July 2010) para 70(a).
68 ibid, para 72.
69 ibid, para 72(d).
70 Sovereignty over Pulau Ligitan and Pulau Sipadan (n 16) para 46.
71 ibid, paras 46–52; cf 53–58.
72 Oil Platforms case (n 30) para 29.
73 ibid, paras 27–28.
74 Beagle Channel arbitration (n 33) para 112.
75 ibid, paras 113–116, 117, 130.
76 Heathrow Airport arbitration (n 33) 72, para 2.1.6.
77 ibid, 75, para 3.2.
78 See in particular ibid, 73, para 2.2.5 and 74–76, paras 3.2–3.8.
79 Mondev v USA (n 34) paras 111–112.
80 Ethyl v Canada (n 33) para 84.
81 Feldman v Mexico (n 33) para 181.
82 Merrill & Ring v Canada (n 33) para 191.
83 CMS v Argentina (n 33) paras 359–362.
84 ibid, paras 366–369.
85 ibid, paras 363, 369.
86 Generation Ukraine v Ukraine (n 33) para 15.2.
87 ibid, para 15.6.
88 Methanex v USA (n 33) para 146.
89 ibid.
90 Philippe Gruslin v Malaysia (n 36) para 17.1.
91 ibid, para 21.4.
92 ibid, para 21.6.
93 Berschader v Russia (n 35) para 158.
94 Globex v Ukraine (n 34) paras 48–49.
95 ibid, para 50.
96 Heathrow Airport arbitration (n 33) 72, para 2.1.6
97 See Counter-Memorial of Indonesia (2 August 2000) available at <http://www.icj-cij.org//files/case-related/102/8562.pdf> paras 5.31–5.36, and 5.45–5.50; and Memorial of Malaysia (2 November 1999) available at <http://www.icj-cij.org/files/case-related/102/8562.pdf> paras 9.21–9.23.
98 See Case concerning Sovereignty over Pulau Ligitan and Pulau Sipadan, Oral Pleadings (7 June 2002) Verbatim Record, CR 2002/31, para 80; translation by the Court.
99 See Reply of the Government of the Kingdom of Denmark (31 January 1991) available at <http://www.icj-cij.org/files/case-related/78/6621.pdf> para 342; and Rejoinder of the Government of the Kingdom of Norway (27 September 1991) available at <http://www.icj-cij.org/files/case-related/78/6619.pdf> paras 195–196, and compare with Case concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v Norway), Oral Pleadings (27 January 1993) Verbatim Record, CR 93/11, at 12.
100 See Beagle Channel arbitration (n 33) paras 113 and 130.
101 Pope & Talbot v Canada (n 35) para 29.
102 See eg Feldman v Mexico (n 33), Aguas del Tunari v Bolivia (n 46), Methanex v USA (n 33), Berschader v Russia (n 35), or Kiliç v Turkmenistan (n 49).
103 Conversely, in those cases where tribunals refused to give weight to such materials, this was either because the explanatory memorandum was not materially relevant (Methanex v US (n 33)), or else contradicted the tribunals’ own construction of treaty terms (Berschader v Russia (n 35), Kiliç v Turkmenistan (n 49)).
104 HICEE v Slovakia (n 1) para 127.
105 See Merrill & Ring v Canada (n 33) paras 63, 74 and 168.
106 The approach adopted by international adjudicatory bodies in such cases mirrors that of the ICJ which expressed a propensity not to question the probative value of evidence originating from domestic sources where such evidence contained agreed or uncontested facts. See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits) [2007] ICJ Rep 43, para 227.
107 ILC Draft Articles and Commentary (n 14) 220, para 10; original emphasis.
108 Some commentators have even gone so far as to claim that ambiguity frequently stems from preparatory works that are equally ambiguous. See Sinclair, I, The Vienna Convention on the Law of Treaties (2nd edn, Manchester University Press 1984) 142 Google Scholar; and Conforti, B, Diritto internazionale (7th edn, Editoriale Scientifica 2006) 95 Google Scholar.
109 See eg Linderfalk (n 19) 249, considering it ‘a fact that ratification work often contains information, based on which the applier more fully than otherwise will be able to form an opinion on how the ratified treaty was perceived when adopted’.
110 See eg Generation Ukraine v Ukraine (n 33) para 15.6 (referring to the fact that a US Submission Letter reflected ‘the official and contemporaneous U.S. interpretation’ of the disputed clause); or Heathrow Airport arbitration (n 33) 75, para 3.2(b) (mentioning specifically that the document in question was ‘the almost contemporary note’).
111 For the same reason, the ICJ for example attaches greater value to affidavits sworn at the time when the relevant facts occurred than affidavits sworn later for purposes of litigation. See Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras) (Judgment) [2007] ICJ Rep 659 para 244.
112 cf Klabbers (n 10) 279, warning that there is always the risk that unilateral statements made at the time of the treaty's ratification process could be self-serving.
113 In the UK, a consistent practice has developed since 1997 whereby an Explanatory Memorandum explaining the provisions of the treaty is laid before Parliament for every treaty laid under the so-called Ponsonby Rule. With the Constitutional Reform and Governance Act of 2010, the requirement to provide such memoranda obtained a statutory basis. See Barrett, J ‘The United Kingdom and Parliamentary Scrutiny of Treaties: Recent Reforms’ (2011) 60 ICLQ 225, 231–2CrossRefGoogle Scholar. In Canada, a comprehensive ‘Policy on Tabling of Treaties in Parliament’ has been in force since 2008, which requires the preparation of an Explanatory Memorandum that is to accompany each treaty that is tabled in the House of Commons. The policy is available at <http://www.treaty-accord.gc.ca/procedures.aspx?lang=eng>. See further McDorman, TL, ‘The Tabling of International Treaties in the Parliament of Canada: The First Four Years’ (2012) 35 DalhousieLJ 357 Google Scholar. In the US, it is established practice for the Secretary of State to prepare a Letter of Submittal containing a detailed description and analysis of the treaty, which is then submitted to the Senate by the President. See further US Library of Congress, ‘Treaties and other International Agreements: The Role of the United States Senate’, <http://www.au.af.mil/au/awc/awcgate/congress/treaties_senate_role.pdf> at 7 and 118. In the Netherlands, the preparation of Explanatory Memoranda is part of established constitutional practice, which is partly regulated in internal policy guidelines prepared by the Ministry of Foreign Affairs. See Sondaal, HHM, De Nederlandse Verdragspraktijk (TMC Asser 1986) 73–5Google Scholar. In Australia, a specific committee procedure has been in force since 1996, which requires that each treaty is tabled with a ‘national interest analysis’, a document setting out the proposed treaty action's advantages, legal impacts and financial costs. See Harrington, J, ‘Redressing the Democratic Deficit in Treaty Law Making: (Re-)Establishing a Role for Parliament’ (2005) 50 McGillLJ 465, 493–4Google Scholar. The practice of preparing explanatory memoranda explaining the provisions of the treaty being considered for ratification is also present in South Africa (see Harrington, J, ‘Scrutiny and Approval: The Role for Westminster-Style Parliaments in Treaty-Making’ (2006) 55 ICLQ 121, 146–7CrossRefGoogle Scholar), and many European States (for examples, see Council of Europe, Committee of Legal Advisers on Public International Law, ‘Expression of Consent by States to be Bound by a Treaty: Analytical Report and Country Reports’, Strasbourg (23 January 2001) CAHDI (2000) 13 FINAL, 87, 112, 142).
114 cf Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14 para 65 (‘the Court must take account of the manner in which the statements [of high-ranking official political figures] were made public; evidently, it cannot treat them as having the same value irrespective of whether the text is to be found in an official national or international publication, or in a book or newspaper.’)
115 See Generation Ukraine v Ukraine (n 33) para 15.6; and HICEE v Slovakia (n 1) para 129.
116 In Canada, the primary responsibility for preparing the Explanatory Memorandum is with the Treaty Section of Department of Foreign Affairs and International Trade; but the latter cooperates closely with other lead departments or divisions. See ‘Policy on Tabling of Treaties in Parliament’ (n 113) Annex B. In the UK, the memoranda are drafted by the government department which has the main policy interest in the particular treaty, but are cleared through the relevant legal adviser at the FCO. See Harrington (Scrutiny and Approval) (n 113) 129–130.
117 This is the case for example in Australia, where there is a special website dedicated to Australian Treaty National Interest Analyses, available at <http://www.austlii.edu.au/au/other/dfat/nia/>. The UK used to have a similar site (see <http://webarchive.nationalarchives.gov.uk/20130104161243/http://www.fco.gov.uk/en/publications-and-documents/treaty-command-papers-ems/explanatory-memoranda/>); but the documents are now accessible through the general website containing official governmental publications, available at <https://www.gov.uk/government/publications>. The latter is also the case in the Netherlands, where explanatory memoranda can be accessed through the general website on government-related information, available at <https://zoek.officielebekendmakingen.nl/>.
118 In the case of many BITs, preparatory works are generally scarce and not well-documented, as clauses are often simply copied from a model treaty text or based on earlier practice. See on this Wälde, TW, ‘Interpreting Investment Treaties: Experiences and Examples’ in Binder, C et al. (eds), International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer (Oxford University Press 2009) 724, 777–8Google Scholar.
119 Thus, Gardiner (n 3) 106, warns that ‘[t]he admission of material generated by one of party needs to be carefully approached in the light of the principle that preparatory work should illuminate a common understanding of the agreement, not unilateral hopes and inclinations’.
120 In interpreting such reservations, international courts have readily considered domestic explanatory and other materials. See eg Aegean Sea Continental Shelf (Greece v Turkey) (Jurisdiction) [1978] ICJ Rep 3, paras 63–68; or Belilos v Switzerland, ECHR, Case No 20-1986/118/167, Judgment of 29 April 1988, para 48.
121 Reference can be made here to States’ declarations pursuant to art 36(2) of the ICJ Statute. For the purpose of ascertaining the scope of, and eventually reservations to, such declarations, the ICJ has readily considered legislative and other domestic documents. See eg Anglo-Iranian Oil Co. case (United Kingdom v Iran) (Preliminary Objection) [1952] ICJ Rep 93, 106–107; or Fisheries Jurisdiction (Spain v Canada) (Jurisdiction) [1998] ICJ Rep 432, paras 60ff.
122 On this, see International Status of South West Africa (Advisory Opinion)(Separate Opinion of Judge Read) [1950] ICJ Rep 164, at 170; or Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua intervening) (Judgment) [1992] ICJ Rep 351, para 378.
123 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) (Jurisdiction and Admissibility) (Dissenting opinion of Vice-President Schwebel) [1995] ICJ Rep 27, at 27. Similarly, Fitzmaurice, CG, ‘The Law and Procedure of the International Court of Justice 1951–4: Treaty Interpretation and Other Treaty Points’ (1957) 33 BYBIL 203 Google Scholar, at 205 notes that ‘the aim of giving effect to the intentions of the parties means, and can only mean, their joint or common intentions’. This is not to deny that the existence of a common understanding among treaty drafters may not be more than a legal fiction. On this, see in particular Stone, J, ‘Fictional Elements in Treaty Interpretation – A Study in the International Judicial Process’ (1953–1955) SydLR 344, 347–50Google Scholar; and O'Connell, DP, International Law (2nd edn, Stevens 1970) 252 Google Scholar. But that problem falls outside the scope of the present inquiry.
124 It needs to be noted that, in accordance with the views of the ILC, even the cogency of preparatory works depended on ‘the extent to which they furnish proof of the common understanding of the parties as to the meaning attached to the terms of the treaty.’ See Waldock (n 13) para 21; emphasis added.
125 Wälde (n 118) 778.
126 See eg Canada's ‘Policy on Tabling of Treaties in Parliament’ (n 113), which defines in Annex B what an Explanatory Memorandum is to explain and the points it will have to cover; or the UK, ‘Treaties and MoUs (Memoranda of Understanding): Guidance on Practice and Procedures (2014)’, available at <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/293976/Treaties_and_MoU_Guidance.pdf>, at 10, which similarly defines the content of a standard explanatory memorandum.
127 Most explicit in this respect is Canada's ‘Policy on Tabling of Treaties in Parliament’ (n 113), explaining in Annex B that an Explanatory Memorandum ‘will ensure that Members of Parliament and the public have sufficient information to assess why Canada should enter into the treaty’.
128 HICEE v Slovakia (n 1) para 129
129 ibid, para 127.
130 Millicom v Senegal (n 67) para 72.
131 Generation Ukraine v Ukraine (n 33) para 15.4.
132 HICEE v Slovakia (n 1) para 132.
133 ibid, para 136.
134 ibid.
135 HICEE (Brower) (n 59) para 35.
136 See eg PCIJ, Jaworzina (Advisory Opinion) PCIJ Rep Series B No 8, at 38 (‘… it is obvious that the opinion of the authors of a document cannot be endowed with a decisive value when that opinion has been formulated after the drafting of that document and conflicts with the opinion which they expressed at that time’); or ICJ, Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) (Jurisdiction and Admissibility) [1994] ICJ Rep 112, para 27 (‘Having signed such a text, the Foreign Minister of Bahrain is not in a position subsequently to say that he intended to subscribe only to a ‘‘statement recording a political understanding’’, and not to an international agreement.’).
137 See in this regard Telefónica S.A. v The Argentine Republic, ICSID Case No ARB/03/20, Decision of the Tribunal on Objections to Jurisdiction of 25 May 2006, para 113 (‘These positions, expressed separately by Spain and Argentina in those distinct disputes, indicate their views set forth in those litigations for purposes of arguing as respondents therein. Moreover, these statements, individually and separately made by the Contracting States within such litigation, are not directed towards each other: they do not evidence therefore an ‘‘agreement’’, a meeting of their minds or intent (‘‘concours de volonté’’) as required by the same Art 31.3(b) [VCLT].’).
138 Heathrow Airport arbitration (n 33) para 3.2.
139 See in particular Ceskoslovenska Obchodni Banka, A.S. v The Slovak Republic, ICSID Case No ARB/97/4, Decision of the Tribunal on Objections to Jurisdiction of 24 May 1999, paras 44–47, where an ICSID Tribunal was prepared to give effect to an estoppel argument made in relation to a position advanced by the respondent State in its Official Gazette, was it not for the fact that the claimant failed to demonstrate that it had relied on that position to its own detriment.
140 Ethyl v Canada (n 33) paras 81–85.
141 See Military and Paramilitary Activities in and against Nicaragua (n 114) para 64; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Judgment) [2005] ICJ Rep 168, paras 78–79; and Genocide Convention case (n 106) para 227.
142 International Status of South-West Africa (Advisory Opinion) [1950] ICJ Rep 128, 135–136.
143 Kiliç v Turkmenistan (Decision) (n 49) paras 9.20–9.21.
144 ibid, fn 48 to para 9.21.
145 Kiliç v Turkmenistan (Annulment) (n 53) para 139.
146 ibid, para 91.
147 ibid, para 139.
148 Sehil v Turkmenistan (n 53) para 247.
149 ibid, para 151.
150 ibid, para 259.
151 ibid, paras 261–262.
152 In some legal systems—that of the Netherlands being one such example—parliamentary approval can be given tacitly, which will result in the treaty not being subject to much parliamentary discussion. See on this Klabbers, J, ‘The New Dutch Law on the Approval of Treaties’ (1995) 44 ICLQ 629 CrossRefGoogle Scholar.
153 cf Genocide Convention case (n 106) para 227.
154 See Hulley Enterprises Limited (Cyprus) v The Russian Federation, UNCITRAL, PCA Case No AA 226; Yukos Universal Limited (Isle of Man) v The Russian Federation, UNCITRAL, PCA Case No AA 227; and Veteran Petroleum Limited (Cyprus) v The Russian Federation, UNCITRAL, PCA Case No AA 228, Interim Award on Jurisdiction and Admissibility of 30 November 2009, para 374.
155 Rechtbank Den Haag, The Russian Federation v Veteran Petroleum Limited et al., Cases C/09/477160 / HA ZA 15-1, C/09/477162 / HA ZA 15-2, and C/09/481619 / HA ZA 15-112, Judgment of 20 April 2016, para 5.60, unofficial English translation available at <https://www.italaw.com/sites/default/files/case-documents/italaw7255.pdf>.
156 Art 4, 2001 Articles on the Responsibility of States for Internationally Wrongful Acts, UN Doc A/56/83 (2001).
157 cf Genocide Convention case (n 106) para 225, where the Court observed in relation to ‘official documents, such as the record of parliamentary bodies’ that ‘[i]n many of these cases the accuracy of the document as a record is not in doubt; rather its significance is’.
158 In ICJ's treatment of affidavits, a person's capacity to attest to certain facts is an important variable. cf Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (n 111) para 244 (‘a statement of a competent governmental official with regard to the boundary lines may have greater weight than sworn statements of a private person’).
159 Klabbers, J, ‘Virtuous Interpretation’ in Fitzmaurice, M, Elias, O and Merkouris, P (eds), Treaty Interpretation and the Vienna Convention on the Law of Treaties: 30 years on (Nijhoff 2010) 17, 34 Google Scholar.
160 These conditions notwithstanding, recourse to preparatory works has now become so pervasive that commentators have occasionally questioned whether their qualification as mere supplementary means of interpretation was still adequate. See eg Klabbers (n 10) 284.
161 On the similar question regarding the possibility of preparatory works to be contradicting the ordinary meaning of a treaty provision, see Schwebel, S, ‘May Preparatory Work Be Used to Correct Rather Than Confirm the ‘Clear Meaning’ of a Treaty Provision?’ in Makarczyk, J (ed), Theory of International Law at the Threshold of the 21st Century – Essays in Honor of Krzysztof Skubiscewski (Kluwer Law International 1996)Google Scholar.