Rules of interpretation and vulnerability definition

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Date produced: 05/10/2010

What is the legal effect of the two commas before and after “SIDS” in the text “[d]ecides that priority should be given to particularly vulnerable developing countries especially the LDCs, SIDS, and other developing country Parties with coastal areas, tropical and mountainous glaciers and fragile ecosystems, as well as countries facing monsoon variability and further taking into account the needs of countries affected by drought, desertification, floods, and sea level and temperature rise in Africa and Asia”?

Summary

It is likely that only the parties to the Long-term Cooperative Action (“LCA”) text will have the competence to interpret it. In this regard, although the legal rules of interpretation under international law will provide a degree of guidance, the interpretation of any provision of the LCA text will likely be a political rather than a legal exercise.

The rules of treaty interpretation under customary international law are embodied in Articles 31 and 32 of the Vienna Convention on the Law of Treaties 1969 (“VCLT”). The rules place primacy on a textual approach. First and foremost, 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. Only if this textual approach is ambiguous, obscure or leads to a result which is manifestly absurd or unreasonable may recourse be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion.

Adopting the approach enunciated in Articles 31 and 32 VCLT, it is clear that the provision which forms the subject matter of this legal query, as presently constructed, is inadequate to ensure that only Small Island Developing States (“SIDS”) and the Least Developed Countries (“LDCs”) are prioritised when it comes to the distribution of adaptation support. In this regard, it is the use of the conjunctive “and” which is more significant than the commas which surround the word “SIDS”.

It is suggested that the following construction may stand a stronger chance of ensuring that the LDCs and SIDS are prioritised:

DECIDES THAT PRIORITY SHOULD BE GIVEN TO PARTICULARLY VULNERABLE DEVELOPING COUNTRIES, ESPECIALLY THE LDCS AND SIDS, WHILE FURTHER ACCOUNT SHOULD BE TAKEN OF THE NEEDS OF OTHER DEVELOPING COUNTRY PARTIES WITH COASTAL AREAS, TROPICAL AND MOUNTAINOUS GLACIERS AND FRAGILE ECOSYSTEMS, AS WELL AS COUNTRIES FACING MONSOON VARIABILITY AND COUNTRIES AFFECTED BY DROUGHT, DESERTIFICATION, FLOODS, AND SEA LEVEL AND TEMPERATURE RISE IN AFRICA AND ASIA

Introduction and scope

The query is one of treaty interpretation. In particular, the question inquires as to the legal effect of two commas before and after the word “SIDS” in the following provision taken from the recent informal submission by Pakistan of drafting for inclusion in the LCA text to determine prioritisation of adaptation support for developing countries:

Decides that priority should be given to particularly vulnerable developing countries especially the LDCs, SIDS, and other developing country Parties with coastal areas, tropical and mountainous glaciers and fragile ecosystems, as well as countries facing monsoon variability and further taking into account the needs of countries affected by drought, desertification, floods, and sea level and temperature rise in Africa and Asia

In this light, this memorandum adopts the following structure:

(a) First, the rules of treaty interpretation under international law are set out with accompanying explanations;

(b) Second, the rules of treaty interpretation are applied to determine the meaning of the above provision as presently drafted; and

(c) Finally, a suggestion is made as to how the above provision may be redrafted to ensure that priority is accorded to the LDCs and SIDS.

The rules of treaty interpretation under international law

Competence to Interpret

At the outset, it should be noted that it is likely that only the parties to the LCA text will have the competence to interpret it. In this regard, although the legal rules of interpretation under international law will provide a degree of guidance, the interpretation of any provision of the LCA text will likely be a political rather than a legal exercise.

While it is open to parties to confer competence on an ad hoc tribunal or the International Court of Justice (“ICJ”) to provide authoritative interpretations of the text:

– This is unlikely and not routine practice in the context of international environmental conventions; and

– This would be of little comfort in any case since the objective is to ensure that SIDS and LDCs are prioritised with respect to receiving adaptation support as soon as possible rather than after a prolonged legal battle before an international court.

Rules of Interpretation under Public International Law

Background

The International Law Commission (“ILC”) in its work on the interpretation of treaties confined itself to isolating “the comparatively few general principles which appear to constitute general rules for the interpretation of treaties”. The ILC’s work was embodied in Articles 31 and 32 VCLT, which are now considered firmly established under customary international law.

This section sets out the rules of interpretation enunciated in Articles 31 and 32 VCLT with accompanying explanations.

The General Rule of Interpretation (Article 31 VCLT)

(i) Natural and Ordinary Meaning

The first principle stated in Article 31 is that “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty”.

In the Permanent Court of International Justice’s Advisory Opinion on the Polish Postal Service in Danzig, the Permanent Court observed that the postal service which Poland was entitled to establish in Danzig under treaty was not confined to operate inside the postal building, as “postal service” must be interpreted “in its ordinary sense as to include the normal functions of a postal service”.

Brownlie (2008) explains that the doctrine of ordinary meaning involves only a presumption: a meaning other than the ordinary meaning may be established, but the proponent of the special meaning has a burden of proof.

(ii) Object and Purpose

A corollary of the principle of ordinary meaning is the principle of integration: the meaning must emerge in the context of the treaty as a whole and in the light of its objects and purposes.

The context of a treaty for purposes of interpretation comprises, in addition to the treaty, including its preamble and annexes, any agreement or instrument related to the treaty and drawn up in connection with its conclusion.

(iii) In complex cases a court of tribunal will usually be prepared to make a careful inquiry into the precise object and purpose of a treaty (see for example, Case Concerning the Gabcikovo-Nagymaros Project, ICJ Reports (1997), 7 at 35 – 46, paras 39-59).

(iv) Subsequent Practice

Reference may also be made to “subsequent practice in the application of the treaty which clearly establishes the understanding of all the parties regarding its interpretation”. In this regard, Brownlie (2008) notes that subsequent practice by individual parties also has some probative value.

In a series of important advisory opinions the ICJ has made considerable use of the subsequent practice of organisations in deciding highly controversial issues of interpretation. Two points arise:

– Constitutionally, members who are outvoted in the organs concerned may not be bound by the practice.

– The practice of political organs involves elements of politics and opportunism, and what should be referred to, subject to the constitutional issue, is the reasoning behind the practice, which can reveal its legal relevance.

The Supplementary Means of Interpretation (Article 32 VCLT)

When the general rule of interpretation either leaves the meaning ambiguous or obscure, or leads to a manifestly absurd or unreasonable result, recourse may be had to further means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion.

In addition, such recourse may be had to verify or confirm a meaning that emerges as a result of the textual approach. In this regard, Brownlie (2008) notes that the International Court of Justice has refused to resort to preparatory work if the text is sufficiently clear in itself. Preparatory work is an aid to be employed with discretion, since its use may detract from the textual approach, and, particularly in the case of multilateral agreements, the records conference proceedings, treaty drafts, and so on may be confused or inconclusive.

Application of the Rules of Treaty Interpretation

Applying the above rules of treaty interpretation to the present legal context, it is clear that the primary approach is textual. The provision at hand should 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”.

Adopting such an approach, it is clear that the provision as presently constructed is inadequate to ensure that only LDCs and SIDS are prioritised when it comes to the distribution of adaptation support:

– The provision provides a list of “vulnerable developing countries” to which priority should be accorded. In essence, the provision is largely a definition of what constitutes a vulnerable developing country for the purpose of adaptation support.

– The provision is unambiguously drafted to distinguish between those particularly vulnerable developing countries to which especial “priority” should be granted and those to which “further […] account” should be accorded.

– Those countries to which special priority should be granted are:

(i) LDCs;

(ii) SIDS;

(iii) Other developing country Parties with coastal areas, tropical and mountainous glaciers and fragile ecosystems; and

(iv) Countries facing monsoon variability.

Those countries to which further account should be accorded are:

(i) Countries affected by drought, desertification, floods, and sea level and temperature rise in Africa and Asia.

(ii) The commas either side of the word “SIDS” are insignificant to the structure of the clause. Of greater relevance is the use of the conjunctive “and” which follows the word “SIDS”. This use of the conjunctive “and” in its natural and ordinary meaning simply continues the list.

(iii) The use of the word “and” at the beginning of the provision should be contrasted with the second occasion the word “and” is used. On this occasion, the word “and” is accompanied by the phrase “further taking into account”. This phrase acts in contrast to the word “especially” earlier in the provision. The phrase introduces a second set of countries to which “further… account” should be taken rather than “especial” priority.

(iv) The ultimate point remains, however, that this is but one opinion of how the provision should be interpreted. It will be for each party to interpret the clause as they wish, something which will be informed by their political aims. Nonetheless, in order to have a stronger chance of ensuring that the LDCs and SIDS are prioritised, an alternative construction should be adopted.

Proposal for redrafting the provision

It is suggested that the following construction may stand a stronger chance of ensuring that the LDCs and SIDS are prioritised:

“Decides that priority should be given to particularly vulnerable developing countries, especially the LDCs and SIDS, while further account should be taken of the needs of other developing country Parties with coastal areas, tropical and mountainous glaciers and fragile ecosystems, as well as countries facing monsoon variability and countries affected by drought, desertification, floods, and sea level and temperature rise in Africa and Asia.”