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Is the Hierarchical Structure of Articles 31 and 32 of the Vienna Convention Real or Not? Interpreting the Rules of Interpretation

Linderfalk, Ulf LU (2007) In Netherlands International Law Review 65. p.133-154
Abstract
In the practice of modern international law, if a certain understanding is advanced as the correct interpretation of a treaty provision, the proposition is assessed using the rules of interpretation laid down in the 1969 Vienna Convention on the Law of Treaties, Articles 31–33. This article is concerned with the relationship held in such an interpretation process between the preparatory work of a treaty – described as a supplementary means of interpretation in Article 32 – and the three primary means of interpretation that can be used by an interpreter citing Article 31. Judged by the wordings of Articles 31 and 32, the relationship between the primary and the supplementary means of interpretation is hierarchical. As a consequence,... (More)
In the practice of modern international law, if a certain understanding is advanced as the correct interpretation of a treaty provision, the proposition is assessed using the rules of interpretation laid down in the 1969 Vienna Convention on the Law of Treaties, Articles 31–33. This article is concerned with the relationship held in such an interpretation process between the preparatory work of a treaty – described as a supplementary means of interpretation in Article 32 – and the three primary means of interpretation that can be used by an interpreter citing Article 31. Judged by the wordings of Articles 31 and 32, the relationship between the primary and the supplementary means of interpretation is hierarchical. As a consequence, preparatory work may be used to determine the correct meaning of a treaty provision, only on the condition that in the earlier stages of the interpretation process, the application of Article 31 has been found to leave the meaning of the interpreted treaty ‘ambiguous or obscure’, or to lead to a result ‘which is manifestly absurd or unreasonable’. Several scholars in the area have recently argued for granting the preparatory work of a treaty a more prominent role in the interpretation process. As this article will show, such a claim builds on arguments that do not stand up to careful legal analysis. It should, therefore, be discarded as unsound.

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author
organization
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type
Contribution to journal
publication status
published
subject
keywords
Public international law
in
Netherlands International Law Review
volume
65
pages
133 - 154
publisher
Cambridge University Press
external identifiers
  • scopus:78149376278
ISSN
1741-6191
language
English
LU publication?
yes
id
ad048b83-4a5f-4ed3-a00a-faf3dc83c0da (old id 929664)
alternative location
https://doi.org/10.1017/S0165070X07001337
date added to LUP
2008-01-16 17:53:59
date last changed
2019-09-11 03:02:47
@article{ad048b83-4a5f-4ed3-a00a-faf3dc83c0da,
  abstract     = {In the practice of modern international law, if a certain understanding is advanced as the correct interpretation of a treaty provision, the proposition is assessed using the rules of interpretation laid down in the 1969 Vienna Convention on the Law of Treaties, Articles 31–33. This article is concerned with the relationship held in such an interpretation process between the preparatory work of a treaty – described as a supplementary means of interpretation in Article 32 – and the three primary means of interpretation that can be used by an interpreter citing Article 31. Judged by the wordings of Articles 31 and 32, the relationship between the primary and the supplementary means of interpretation is hierarchical. As a consequence, preparatory work may be used to determine the correct meaning of a treaty provision, only on the condition that in the earlier stages of the interpretation process, the application of Article 31 has been found to leave the meaning of the interpreted treaty ‘ambiguous or obscure’, or to lead to a result ‘which is manifestly absurd or unreasonable’. Several scholars in the area have recently argued for granting the preparatory work of a treaty a more prominent role in the interpretation process. As this article will show, such a claim builds on arguments that do not stand up to careful legal analysis. It should, therefore, be discarded as unsound.<br/><br/>},
  author       = {Linderfalk, Ulf},
  issn         = {1741-6191},
  keyword      = {Public international law},
  language     = {eng},
  pages        = {133--154},
  publisher    = {Cambridge University Press},
  series       = {Netherlands International Law Review},
  title        = {Is the Hierarchical Structure of Articles 31 and 32 of the Vienna Convention Real or Not? Interpreting the Rules of Interpretation},
  volume       = {65},
  year         = {2007},
}