As Tiina has already discussed, the use of the Supreme Court majority of VCLT Article 31(3)(b) with respect to the Framework Decision was flawed. The purpose of Part 2 of our shared thoughts is to demonstrate that, even if subsequent practice had been applicable to the interpretation of the term ‘judicial authority’ in the Framework Decision (and by extension, the Extradition Act), the majority misapplied VCLT Article 31(3)(b).
A. The subsequent practice relied upon
The subsequent practice on which the majority’s application of VCLT Article 31(3)(b) was based is contained within the judgment of Lord Phillips PSC (para 68):
“[…] 11 Member States designated a prosecutor as the issuing judicial authority in relation to fugitives sought for prosecution and 10, not in every case the same, designated a prosecutor as the issuing judicial authority in respect of fugitives who had been sentenced. 10 Member States designated a prosecutor as the executing judicial authority. Some of these had designated a judge or court as the issuing judicial authority. A handful of Member States had designated the Ministry of Justice as the issuing or executing judicial authority.”
The President further referred to reports of the European Commission under Article 34 of the framework decision, which commented adversely on the appointment by a ‘small minority’ of EU members on the appointment of executive bodies and judicial authorities, ‘but made no adverse comment on the use of public prosecutors as judicial authorities’ (para 69). He also made mention of a series of Mutual Evaluation Reports made to the European Council by EU member experts, which also contained no adverse comment as to the use of prosecutors as judicial authorities (para 70). Finally, he referred to a Final Report of the Council of 29 May 2009, which in his terms ‘carried a clear inference […] that there was no objection to prosecutors performing the role of issuing judicial authorities’ (para 71).
So far, so good. But although convincing at first blush, the practice identified by Lord Phillips PSC is, in reality, insufficient to meet the standard required by VCLT Article 31(3)(b). Two sources may be used to demonstrate this – the travaux preparatoires of the VCLT as contained within the work of the International Law Commission (ILC) and in the practice of international courts and tribunals, most relevantly the International Court of Justice, and the Appellate Body of the WTO’s Dispute Settlement Body.
B. The work of the ILC
The VCLT was converted into a treaty from a draft text forwarded to the United Nations by the ILC. This draft text – along with the deliberations of the Commission and the Reports of its Special Rapporteur, Sir Humphrey Waldock – form part of the travaux preparatoires of the VCLT and may be used to interpret the meaning and significance behind Article 31(3)(b) pursuant to Article 32.
Waldock clearly placed a premium on subsequent practice as a tool of treaty interpretation, but was concerned that the practice of a minority of states could be used to alter the meaning of the treaty text. His solution was to require not uniformity of practice – that would be unrealistic – but uniformity of agreement if a particular subsequent practice was to be considered relevant to interpretation. He stated (ILC Ybk 1964/II, 60):
“Subsequent practice when it is consistent and embraces all the parties would appear to be decisive of the meaning to be attached to the treaty, at any rate when it indicates that the parties consider the interpretation to be binding upon them. […] [But], if the interpretation adopted by the parties diverges, as sometimes happens, from the natural and ordinary meaning of the terms, there may be a blurring of the line between the interpretation and the amendment of a treaty by subsequent practice.”
This sentiment would also find its way into the ILC’s Commentary on its Draft Articles on the Law of Treaties, the direct antecedent of the VCLT. In the two years between the provisional adoption of the predecessor the VCLT Article 31(3)(b) and the adoption of the Draft Articles as a whole, the draft had been subtly modified, such that instead of referring to subsequent practice ‘which clearly establishes the understanding of all the parties’ (ILC Ybk 1964/I, 317), it now referred simply to ‘the parties’. Lest this amendment be construed as diluting the requirement for uniformity of agreement, the Commentary states (ILC Ybk 1966/II, 211):
“By omitting the word ‘all’ the Commission did not intend to change the rule. It considered that the phrase ‘the understanding of the parties’ necessarily means ‘the parties as a whole’. It omitted the word ‘all’ merely to avoid any possible misconception that every party must individually have engaged in the practice where it suffices that it should have accepted the practice.”
C. The jurisprudence of international courts and tribunals
1. The International Court of Justice
The same sentiments as to agreement and uniformity as outlined above appear in the jurisprudence of the International Court. Two cases will suffice to give an idea of the kind of practice sufficient to influence the interpretation of a treaty, at least insofar as the International Court is concerned.
The first is the Advisory Opinion of the Court on the Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization (ICJ Reports 1960 p 150). There, the Court was called on to determine the meaning of a phrase in the Constitution of the Inter-Governmental Maritime Consultative Organization (IMCO). A committee of IMCO was to be comprised of ‘not less than eight’ of the ‘largest ship-owning nations’. Confusion arose over whether this referred to those nations with the greatest registered tonnage flying their flag (leading to the inclusion of ‘flag of convenience’ states such as Liberia and Panama) or states having the greatest tonnage of ships beneficially owned by their nationals. In order to clear up any confusion, they would require a maritime expert witness in order to explain the following: Under international law, all merchant ships have to be registered under a flag of convenience. This ensures that every ship is registered to a country, this gives it legal access to any destination where a citizen could travel from that country. In this case, the Court noted that the uniform and consistent practice of the IMCO Assembly in implementing other provisions of the treaty used the registered tonnage of the flag state – even where the tonnage was registered under a flag of convenience. Thus, it concluded that registered tonnage was the relevant metric in determining composition of the committee (ICJ Reports 1960 p 150, 168-70).
A second relevant case is the Namibia Advisory Opinion (ICJ Reports 1971 p 16). The case concerned in part the interpretation of Article 27(3) of the UN Charter, which provided that the UN Security Council could only pass resolutions with the ‘concurring votes’ of each of the permanent members. In voting on the Security Council Resolution under consideration, two of the permanent members had abstained, causing some to argue that Article 27(3) had been breached. The Court resolved the issue by examining the subsequent practice of the Organization, and determined that for the purposes of Article 27(3), ‘concurring’ was taken to mean ‘not overtly disagreeing’. It said (ICJ Reports 1971 p 16, 22):
“This procedure followed by the Security Council, which has continued unchanged after the amendment in 1965 of Article 27 of the Charter, has been generally accepted by Members of the United Nations and evidences a general practice of that Organization.”
The central point of this is that positive agreement by relevant states is not required in order for critical mass sufficient to constitute valid subsequent practice to accrue. No state had positively said that it considered an abstention to be just as good as a concurrence for the purposes of the provision – they just went along with the practice of the Organization. Thus, actual participation is not necessary. All that is required is manifested or imputable agreement by the relevant parties. But all such parties must agree.
2. The WTO Appellate Body
The broad outlines of subsequent practice have been elaborated on to a significant extent by the jurisprudence of the WTO Appellate Body. The Appellate Body has special importance in the present context for two reasons. First, due to the intricacy of the WTO covered agreements and the regularity of cases, the Appellate Body is one of the most prominent bodies for the interpretation of multilateral treaties in modern international law. Second, its structure and general jurisdiction are closely analogous – like the ECJ, the Appellate Body is a tribunal of specialist jurisdiction overseeing a complex multilateral corpus of treaties with a large and heterogeneous membership.
The treatment of VCLT Article 31(3)(b) by the Appellate Body reflects the tribunal’s desire to develop a jurisprudence which serves legal certainty and systematic coherence. As was stated in Japan – Alcoholic Beverages II, it places a premium on ‘[a] “concordant, common and consistent” sequence of acts and pronouncements which is sufficient to establish a discernible pattern implying the agreement of the parties regarding its interpretation’ (Appellate Body Report, 1 November 1996, paras 12-13).
In EC – Chicken Cuts, the Appellate Body affirmed its remarks in Japan – Alcoholic Beverages II and turned its attention to the question of exactly how to establish agreement among the parties which had not participated positively in the relevant practice. It was quick to express its reservation as to whether non-participation, silence, or a simple lack of reaction could qualify as assent (Appellate Body Report, 27 September 2005, para 272), though it conceded that non-participation combined with ‘notification or […] participation in a forum where [the practice] is discussed’ (ibid) could be reflective of agreement. It concluded (ibid, para 273):
“[T]he ‘lack of reaction’ should not lightly, without further inquiry into attendant circumstances of a case, be read to imply agreement with an interpretation by treaty parties that have not themselves engaged in a particular practice followed by other parties in the application of the treaty.”
The standard so created is extremely high, with agreement sufficient to generate a valid subsequent practice for the purposes of VCLT Article 31(3)(b) only held to manifest in situations where: (a) every member of the relevant regime has actively participated in the practice; or (b) every member was positively aware of the practice through notification or participation in a forum where the practice was discussed and had accepted or at least acquiesced in it. This standard has resulted in the Appellate Body rejecting as valid every purported subsequent practice brought before it.
In short, it seems unlikely that the practice identified by Lord Phillips PSC would fulfil the standard of VCLT Article 31(3)(b) as outlined above. As described by the President, the practice in question contains two elements. First, the actual practice itself, which is subscribed to by only 11 member states – at least in the sense that a prosecutor has been designated as a judicial authority with respect to a fugitive who is wanted for prosecution. This does not represent uniformity of practice, requiring that the remainder of states give actual or imputable assent.
Second, the various reports submitted to the plethora of EU organs on the subject of the Framework Decision. As Lord Phillips PSC noted, none of these raised an objection to the use of prosecutors as judicial authorities for the purposes of the Framework Decision, though objections were raised to the use of other executive organs. But mere mention of the reports (and the lack of criticism within them regarding the designation of prosecutors and judicial authorities) does not constitute actual evidence that the other EU members were aware that such an opinion was held. Indeed, it is unrealistic to presume without further discussion of the issue that every EU member is aware of every document that the organization receives or produces. Certainly, the Appellate Body did not take this view in the EC – Chicken Cuts case, where the document in question actually formed part of the covered agreements – namely a portion of the EC’s tariff schedule, considered either to be an annex to the Marrakesh Agreement or a WTO member’s individual accession thereto.
On the basis of the foregoing, we may conclude that the subsequent practice relied upon by the Court was not subject to agreement sufficiently uniform so as to constitute a subsequent practice within the meaning of VCLT Article 31(3)(b). Thus, it could not be demonstrated that the term ‘judicial authority’ in the Framework Decision included a prosecutor, presumptively invalidating the arrest warrant and rendering any extradition based on it wrongful. Whatever one might think of the Appellant – and a great many opinions have been ventured as to the quality of his character – one cannot help but look at the decision in Assange as a further example (as if one were needed) of the dysfunctional relationship between international and municipal law.