Michael Wood focused unsurprisingly on the UN Security Council. Of course, there has been and remains significant debate over the question of the legal status and effect of Security Council resolutions, but invariably the equally normative question of what does such a text mean is either not considered or is, at best, implicit within the issue of its legal status and effect. Moreover, even when a very obvious question of interpretation arises – as with the infamous Resolution 1441 (2002) and its reference to ‘serious consequences’ – very little attention has been given as to how to interpret those words as opposed to what they should mean. But how one interprets a provision is fundamental to what interpretation one will come to. And if we come to an interpretation without considering the rationale for that interpretation, this is not because there has not been a process of reasoning involved, but simply that it has not been made explicit.
This blog post reviews recent jurisprudence on the extent to which the rules on interpretation included in Articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties are viewed as appropriate interpretative tools for such secondary rules. It then seeks to consider the differences between them and what this tells us about the tension in using the Vienna Convention for these purposes
The first case is the 2010 ICJ Advisory Opinion in Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo:
‘the Court must recall several factors relevant in the interpretation of resolutions of the Security Council. While the rules on treaty interpretation embodied in Articles 31 and 32 of the Vienna Convention on the Law of Treaties may provide guidance, differences between Security Council resolutions and treaties mean that the interpretation of Security Council resolutions also require that other factors be taken into account. Security Council resolutions are issued by a single, collective body and are drafted through a very different process than that used for the conclusion of a treaty…The interpretation of Security Council resolutions may require the Court to analyse statements by representatives of members of the Security Council made at the time of their adoption, other resolutions of the Security Council on the same issue, as well as the subsequent practice of relevant United Nations organs and of States affected by those given resolutions’ (paragraph 94)
The second case is Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to Activities in the Area, a 2011 advisory opinion of the ITLOS Seabed Disputes Chamber (SBDC):
‘The Chamber is also required to interpret instruments that are not treaties and, in particular, the Regulations adopted by the Authority, namely, the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area of 2000 (hereinafter “the Nodules Regulations”), and the Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area of 2010 (hereinafter “the Sulphides Regulations”).
The fact that these instruments are binding texts negotiated by States and adopted through a procedure similar to that used in multilateral conferences permits the Chamber to consider that the interpretation rules set out in the Vienna Convention may, by analogy, provide guidance as to their interpretation…The ICJ seems to have adopted a similar approach when it states in its advisory opinion on Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, that the rules on interpretation of the Vienna Convention “may provide guidance” as regards the interpretation of resolutions of the United Nations Security Council (ICJ, 22 July 2010, paragraph 94).’ (paras 59-60)
In considering the insights from the jurisprudence of the International Court and the Seabed Disputes Chamber on the matter of utilising the Vienna Convention to interpret secondary instruments, several points might be mentioned. First, unsurprisingly neither tribunal is indicating that the Vienna Convention’s rules are binding per se. For the ICJ, they “may provide guidance” and for the SBDC, they “may, by analogy, provide guidance”. Secondly, though the references by both tribunals to ‘guidance’ would seem very similar, their subtle difference is interesting and perhaps reveals a wider conceptual distinction. The ICJ was very clear that though the Vienna Convention’s rules may prove useful, there are “other factors [to] be taken into consideration”. This stems from the view that “Security Council resolutions are issued by a single, collective body and are drafted through a very different process than that used for the conclusion of a treaty”. On the other hand, the SBDC sees a much closer similarity between treaties and secondary instruments – and thus finds it appropriate to consider them “analog[ous]”. As it notes, “The fact that these instruments are binding texts negotiated by States and adopted through a procedure similar to that used in multilateral conferences”. This difference would seem to be largely explained by the varying negotiating/drafting processes, and implicit within that the composition and size, of these bodies. Whereas the Security Council is comprised of 15 members, the Seabed Assembly (which approves these secondary instruments) has over 160 countries (and even if one were rather to view as the appropriate body as the Seabed Council (which negotiates these texts), it is still a much healthier representative body of 36 countries). Interestingly, of course, the ICJ refers to the process as drafting whereas the SBDC considers its instruments to have been negotiated. And the very idea of negotiations would, by their very nature, seem to refute the presence of a ‘single, collective body’. Such differences in the understanding of each respective organisation, thus has a marked difference in how one approaches both the creation of such secondary instruments and their interpretation.
Both Security Council resolutions and the Seabed Regulations are binding on all parties to their respective parent treaties. But whereas for the SBDC this would seem to support the reliance on the Vienna Convention as creating ‘binding texts’ that are analogous to treaties, on the other hand, the ICJ seems to emphasise that as Security Council resolutions can be binding on all (by virtue of article 25 UN Charter) regardless of their involvement in its drafting process, this would be a reason to be more cautious in relying on the text alone. The Court thus identifies a wider range of evidence to “analyse”, including “statements by representatives of members of the Security Council made at the time of their adoption, other resolutions of the Security Council on the same issue, the subsequent practice of relevant United Nations organs and of States affected by those given resolutions”. Relying on such a wider pool of evidence may simply bolster a strict textual interpretation, but much more likely it may support an alternative, less literal, interpretation which is based on the wording alone.
As the only – or certainly principal – settled guidance in international law on interpretation, it is unsurprising that reference is made to the Vienna Convention’s rules. Moreover, as the differences between the reasoning in these two advisory opinions indicate, the greater the similarity between these instruments and treaties, the more “analog[ous]” the Vienna Convention would seem to become.
Thus, in conclusion, while tribunals seem willing to use the Vienna Convention’s rules on interpretation, there is no evidence that they are contemplating circumscribing their own judicial discretion by determining any customary obligations of interpretation, or that as a matter of international law secondary rules must be interpreted akin to their parent treaties through the provisions of the Vienna Convention. Indeed, there are very sound policy and legal reasons why this shouldn’t be the case. Nevertheless, it is interesting to note the statement by the SBDC which considers “the analogy [to consider the Vienna Convention] is strengthened because of the close connection between these texts and the Convention”. This encapsulates very well the paradox that tribunals find themselves in; the Vienna Convention may not be legally binding in these circumstances, but equally such rules of interpretation cannot easily be discounted, especially as secondary instruments often relate so closely to treaties from which they come, and both have potentially the same normative effect.
Tribunals have to tread a careful path, neither wishing to slavishly follow the Vienna Convention nor giving the impression that they are unbound by any interpretative standards. But as the secondary rules of international organisations become more pervasive and will continue to impact, in increasingly pervasive ways, State, individual and corporate activity, tribunals may need to reflect as to how they can place themselves on firmer legal footing when it comes to interpreting these non-treaty yet binding instruments.