This is a guest post from trade lawyer Adarsh Ramanujan:
Comments on Article 31 of the Vienna Convention
The AB Report in DS457: Peru –Agricultural Products (adopted on July 31) had some very interesting points on Article 31 of the Vienna Convention, in particular, sub-paragraphs (a) and (c), and their relationship with Article 31(1). Just for convenience, I have reproduced the relevant parts of Article 31 of the Vienna Convention below:
“1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
…
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
…
(c) any relevant rules of international law applicable in the relations between the parties.”
I. Inter se Relationship within Article 31
Here’s what the AB states on this point (para 5.94):
“While context is a necessary element of an interpretative analysis under Article 31 of the Vienna Convention, its role and importance in an interpretative exercise depends on the clarity of the plain textual meaning of the treaty terms. If the meaning of treaty terms is difficult to discern, determining the ordinary meaning under Article 31 may require more reliance on the context and the object and purpose of the treaty and possibly other elements considered "together with the context" and the tools mentioned in Article 32. However, we do not see how, in an interpretative exercise under Article 31, elements considered "together with the context" can be used to reach the conclusion that the textual terms "shall not maintain" in Article 4.2 of the Agreement on Agriculture should be read as meaning "may maintain" based on a particular provision found in the FTA. We do not consider that Article 31 can be used to develop interpretations based on asserted subsequent agreements or asserted "relevant rules of international law applicable in the relations between the parties" under Article 31(3)(a) and (c) that appear to subvert the common intention of the treaty parties as reflected in the text of Article 4.2 and Article II:1(b).”
(Emphasis added in bold)
Is the AB implying an internal hierarchy within Article 31 of the Vienna Convention? I always believed that this idea of a first text, then context and then other materials, was more to structure a judgment or an argument, but nothing more. Article 31(1) itself mentions ‘context’ – it is the “ordinary meaning in their context” that is relevant under Article 31(1). Article 31(3) mandates that “together with the context” subsequent agreements or relevant rules of international law be taking into account. The plain words of the Vienna Convention make it more than apparent that there is no internal hierarchy and I always believed this to be the correct approach as a student of public international law. I have always believed that the Vienna Convention tries to lay out all the factors that would be relevant to understanding the relationship between the parties and, no one factor can be more important than the other. In contrast, you can see the Vienna Convention making an explicit hierarchy between Article 31 principles and Article 32 (reference to preparatory work).
This observation from the AB does not fit with the text of the Vienna Convention itself. In any case, the argument taken up by Peru was dismissed on other (perhaps stronger) reasons and I feel that this comment was unnecessary.
II. What is a “relevant” rule of international law under Article 31(3)(c) (and Article 31(3)(a))?
In dismissing Peru’s claim that certain provisions of the ILC Articles and the relevant FTA between the parties are ”relevant” under Article 32(3)(c), the AB finds (paras 5.101-103):
“5.101. In order to be "relevant" for purposes of interpretation, rules of international law within the meaning of Article 31(3)(c) of the Vienna Convention must concern the same subject matter as the treaty terms being interpreted…The Appellate Body has also considered that agreements "regarding the interpretation of the treaty or the application of its provisions" within the meaning Article 31(3)(a) of the Vienna Convention are "agreements bearing specifically upon the interpretation of a treaty".
5.102. Paragraph 9 of Annex 2.3 to the FTA states that "Peru may maintain its Price Range System". ILC Article 20 addresses the issue of validity of consent by a State that precludes the wrongfulness of a given act by another State within the limits of that consent. ILC Article 45, paragraph (a) concerns the loss of right to invoke responsibility of a State, in circumstances where the injured State has validly waived the claim.
5.103. The specific interpretative issues arising under Article 4.2 of the Agreement on Agriculture and Article II:1(b) of the GATT 1994 in question in this dispute are not whether Peru "may maintain" its PRS with regard to designated products , or whether Guatemala has consented to the maintenance of the PRS or waived its right to challenge it. Rather, in order to determine whether Peru could maintain its PRS, the Panel had to interpret the meaning of the terms in Article 4.2 and footnote 1 of the Agreement on Agriculture, and find whether the additional duties resulting from the PRS could be characterized as "variable import levies", "minimum import prices" or "similar border measures" rather than "ordinary customs duties" within the meaning of footnote 1. With respect to Article II:1(b) of the GATT 1994, the Panel had to determine whether the additional duties resulting from the PRS could be characterized as "other duties or charges" or "ordinary custom duties". Paragraph 9 of Annex 2.3 to the FTA and ILC Articles 20 and 45 do not provide "relevant" interpretative guidance in this respect. Thus, we do not see how the FTA and ILC Articles 20 and 45 can be considered as rules concerning the same subject matter as Article 4.2 and Article II:1(b), or as bearing specifically upon the interpretation of these provisions.”
(Emphasis supplied in bold)
Of course, what is “relevant” is a very factual question. However, at first glance, I feel that AB applied the standard quite strictly. The idea that it has to “concern the same subject-matter” is something I can understand as a legal test - but its application is what I am concerned with. More than the ILC Articles, my focus is on the FTA itself and the phrase in that FTA that Peru “may maintain” its PRS system. It appears that the AB has come to its conclusion simply based on the fact that the same terms are not used in the two treaties. Perhaps there is another way to understand the AB’s ruling, but this is how I understand it.
There is still the larger question – is the legal standard used by the AB correct? Article 31(3)(c) only uses the word ‘relevant’ and not the word ‘same subject matter’. As far as I am personally aware (I welcome any corrections in this respect), there is no settled understanding in the realm of pubic international law on how ‘relevance’ under Article 31(3)(c) is determined. My personal and initial opinion is that two provisions could be considered logically ‘relevant’ not just because the terms indicate that the two provisions bear on the same subject matter, but also because of the real world / de facto impact they have. I have come across instances in my limited experience as a domestic practitioner, where even though the subject-matters in two different legislations / provisions may prima facie appear disjoint, they tend to have overlapping spheres when applied on facts. Usually, I would consider those different legislations / provisions as being ‘relevant’ to one another. Anyway, I think the jury is still out on this issue and may be future jurisprudence will provide further clarification.
Of course, I am not arguing that the FTA fully supports Peru’s stand, but I believe that rejecting the FTA provisions as not being “relevant” may be too strict an approach.
III. Who are the ‘Parties’ referred to in Article 31(3)(c)?
There was also some discussion about whether the FTA could be applied under Article 31(3)(c) since not all WTO members are parties to that FTA, though the AB did clarify that there is no need to issue a finding of this issue (para. 5.105). However, it does make the following general observation in understanding Article 31(3)(c) (para. 5.95):
“5.95. Moreover, Peru clarified at the oral hearing that it is advocating an interpretation of Article 4.2 of the Agreement on Agriculture and Article II:1(b) of the GATT 1994 as permitting the PRS exclusively in the relations between Peru and Guatemala, who are the parties to the FTA. Article 31(1) of the Vienna Convention states that "[a] treaty shall be interpreted" such that the object of the interpretative exercise is the treaty as a whole, not the treaty as it may apply between some of its parties. We thus understand that, with multilateral treaties such as the WTO covered agreements, the "general rule of interpretation" in Article 31 of the Vienna Convention is aimed at establishing the ordinary meaning of treaty terms reflecting the common intention of the parties to the treaty, and not just the intentions of some of the parties. While an interpretation of the treaty may in practice apply to the parties to a dispute, it must serve to establish the common intentions of the parties to the treaty being interpreted.
5.96. Therefore, although Peru submits on appeal that the Panel erred in the interpretation of Article 4.2 of the Agreement on Agriculture and Article II:1(b) of the GATT 1994, in our view, these arguments are beyond the scope of an interpretative exercise as envisaged in Article 3.2 of the DSU and in Article 31 of the Vienna Convention…”
(Emphasis supplied in bold)
It appears that there is an implied finding that the term ‘parties’ must effectively be all members of the WTO. I say ‘effectively’ because the language of the AB suggests that even for FTAs or bilateral treaties applicable between a subset of WTO members, they could be considered under Article 31(3)(c) if they “serve to establish the common intentions of the parties to the treaty being interpreted”. For instance, we may consider an FTA between three WTO members bearing on a WTO treaty provision, but some sort of evidence can be produced that all other members of the WTO consider it to be the correct understanding. At least, this is what I understand by the AB’s observation. I think from the perspective of intrinsic stability and coherence to the WTO regime, this finding makes sense, though I think the world of public international law is still divided on this front.
Apart from the above, this decision also made me think some more fundamental or academic questions – there are clearly issues about understanding the Vienna Convention itself. It would seem circular to apply Article 31 itself to interpret Article 31. What then? The other question would then be whether interpretation of the Vienna convention is even something the Panel can do under the DSU?
I would welcome any thoughts or comments.
