Mortenson: Is the Vienna Convention on the Law of Treaties Hostile to Drafting History?

Julian Davis Mortenson (Univ. of Michigan - Law) has posted Is the Vienna Convention on the Law of Treaties Hostile to Drafting History? (American Journal of International Law, forthcoming). Here's the abstract:

It is often asserted that the landmark 1969 Vienna Convention on the Law of Treaties relegates drafting history to a rigidly subsidiary role in treaty interpretation. Many commentators go so far as to suggest that the VCLT entrenches a well-founded prejudice against travaux préparatoires — the paper trail left by negotiations over an evolving text that produces a final treaty. Because of this alleged hostility to history as a source of meaning, the conventional wisdom is that when an interpreter thinks a text is reasonably clear and produces results that are not manifestly unreasonable or absurd, she is supposed to give that prima facie reading preclusive effect over anything the travaux might suggest to the contrary.

This conventional wisdom cannot be reconciled with the agreement that was actually reached in 1969. This Article’s detailed review of the multi-decade process that led to the VCLT reveals that, far from adopting a restrictive view of drafting history, the Vienna Conference sought to secure its role as a regular, central, and indeed crucial component of treaty interpretation. The principal source of modern confusion on this score is that the Vienna delegates rejected a United States proposal to formulate the rules of treaty interpretation as a totality-of-the-circumstances balancing test. But that had nothing to do with hostility to travaux as such, much less with any desire to impose strict threshold requirements on their use. Rather, the delegates were rejecting only what they understood to be Myres McDougal’s view of treaty interpretation as an ab initio reconstruction of whatever wise interpreters might view as good public policy.

In the end, delegates embraced a view of interpretation as a recursive and inelegant process that would spiral in toward the meaning of a treaty, rather than a rigidly linear algorithm tied to a particular hierarchical sequence. Interpreters were thus expected automatically, in any seriously contested case, to assess the historical evidence about the course of discussions, negotiations, and compromises that resulted in the treaty text — in short, to the travaux. The modern view that the VCLT rendered travaux an inferior tool of interpretation is simply wrong.