Preambles in treaty interpretation.

• Author: Hulme, Max H.
• Position: III. Expansive Preambular Power in Object-and-Purpose Analysis through Conclusion, with footnotes, p. 1305-1343

3. EXPANSIVE PREAMBULAR POWER IN OBJECT-AND-PURPOSE ANALYSIS

   In practice, although preambles possess considerable potential power under the VCLT due to their status as part of the text and context of the treaty, their actual power will often depend on an interpreting body's approach to the object-and-purpose inquiry. Two factors combine to produce this practical reality. First, experts generally disapprove of the practice of using treaty preambles to make substantive declarations of rights or obligations. (114) Thus, although article 31 places no inherent limit on preambles' power, drafters generally do not seek to take full advantage of that power when drafting the preamble. (115) Second, tribunals do not always explicitly provide an account of preambles' role in the text-and-context analysis of a treaty term, instead proceeding directly to the object-and-purpose analysis. (116)

   What legal power, then, do tribunals confer upon treaty preambles when employing them in object-and-purpose analysis? It must be noted at the outset that preambles, through their association with object and purpose, become embroiled in what is generally considered to be a messy, unclear area of treaty interpretation. (117) Nevertheless, one relatively uncontroversial role for preambles (and statements of object and purpose in general) is to limit--but not radically alter--the possible interpretations of a term in question. (118) In this sense, preambles may exert a substantial negative or constrictive power on subsequent treaty provisions. More interesting and controversial, however, is the question of preambles' ability to amplify or expand the reach of such provisions (119)--effectively an expansive or positive power. An examination of judgments in the specific contexts of the WTO and investment treaty arbitrations will establish that, in practice, preambles have indeed proven capable of exerting such positive force. And a brief exploration of I.C.J. jurisprudence will demonstrate that the issues and debates concerning preambles are not unique to those two domains, but also exist more generally in public international law.

   1. The WTO and the U.S. Shrimp-Turtle Decision

      The decision of the WTO's Appellate Body in the U.S. Shrimp-Turtle (120) dispute of the 1990s serves as a clear example of an international tribunal giving great weight to a treaty's preamble while employing object-and-purpose analysis. The opinion is notable first because it uses the preamble to justify an expansive reading of a subsequent treaty term, conferring on the preamble a positive legal power. It is additionally interesting because of the broad reach of the decision, which was determined to apply not just to the WTO Agreement and the specific sub-treaty at issue, but to all other agreements falling under the umbrella of the WTO. By way of this extension, the decision effectively amplified the positive power it found within the preamble at issue.

      The U.S. Shrimp-Turtle dispute involved a challenge to a specific U.S. trade policy as a violation of the GATT 1994 Treaty's general ban on prohibitions or restrictions on foreign imports. The policy in question consisted of a series of regulations enacted by the United States requiring the use of Turtle Excluder Devices by all shrimp vessels operating in certain areas, combined with an import ban on shrimp from countries not meeting requirements including the adoption of similar, turtle-friendly shrimp-harvesting practices. (121) The lower adjudicative body of the WTO, the Dispute Settlement Body (DSB or Panel), issued a panel report concluding that the U.S.'s practices violated article XI of the GATT 1994 treaty (122) and that the policies did not qualify under the exceptions to the Most Favored Nation (MFN) standard contained in GATT article XX. (123) The United States appealed the Panel's decision to the Appellate Body on numerous legal grounds; however, the legal question useful for purposes of this Comment concerns the United States' claim that its policies did in fact fall within the scope of the Article XX exceptions allowing it to treat trading partners differently. (124)

      Answering this question required the interpretation of the complex treaty regime underlying the WTO, for which a brief outline will be helpful. The WTO Agreement is a general umbrella agreement, which itself includes numerous other agreements in its annexes. (125) GATT 1994 is one such sub-agreement, which largely serves to integrate the earlier GATT 1947 agreement and its subsequent history into the organizational and legal framework established by the WTO Agreement. (126) Article XX, therefore, in fact resides in GATT 1947, and sets forth a number of exceptions to the obligations imposed by the agreement. (127) Article XX consists of an enumerated list of exceptions, introduced by a prefatory statement known as the "chapeau" setting out general conditions for the application of those exceptions. (128) One legal question for the Appellate Body, therefore, was whether the U.S. policies qualified under the exception for trade restrictions

      "relating to the conservation of exhaustible natural resources." (129) This question in turn required inquiry into whether the policies "constitute[d] a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail," which under the chapeau would disqualify practices otherwise qualifying for an exception under article XX. (130) The Appellate Body's interpretive approach would lead it to rely heavily on the WTO Agreement preamble for both of these inquiries.

      Invoking article 31 of the VCLT, the Appellate Body began by outlining the proper procedure for object-and-purpose analysis. With regards to the Panel Report, it found that the Panel had misapplied object-and-purpose analysis by conducting a top-down approach; the Panel had started with the object and purpose of the WTO, using it to inform its analysis of the "unjustifiable" language in Article XX and finding the U.S. policies unjustifiable in terms of the object and purposed (131) Rather, the Appellate Body explained, object-and-purpose analysis of treaty terms requires a bottom-up approach that, in this case, begins with the individual exceptions under Article XX--whose plain language must be analyzed in light of the object and purpose--before turning to the chapeau, which likewise must be analyzed in terms of object and purpose. (132)

      The Appellate Body thus first addressed the U.S. argument that sea turtles constitute "exhaustible natural resources" under the exception found in article XX(g). This question had not been addressed by the Panel, whose approach led it to stop after concluding that the U.S. policy conflicted with the chapeau and before considering the specific exceptions themselves. (133) The Appellate Body began by noting that the plain meaning of "exhaustible" did not exclude "living" species. (134) It then turned to the preamble, noting that the language in question was over fifty years old and "must be read by a treaty interpreter in light of the contemporary concerns of the community of nations about the protection and conservation of the environment." (135) The Appellate Body based this assertion on the "preamble of the WTO Agreement--which informs not only the GATT 1994, but also the other covered agreements--[and which] explicitly acknowledges 'the objective of sustainable development" (136) Taking this preambular language into account, the Appellate Body held that living creatures can indeed be "exhaustible natural resources." (137) As such, the preamble effectively exerted positive legal force by leading the Body to choose an expansive interpretation that, while plausible, arguably diverges from the most obvious plain meaning of the term.

      The WTO Agreement preamble also played a prominent role in the Appellate Body's subsequent interpretation of the chapeau. In this inquiry, its first task was to determine whether a policy that restricted foreign imports for the purposes of preserving an environmental resource passed the chapeau's gatekeeping function of barring access to article XX exceptions for "arbitrary or unjustifiable discrimination between countries." (138) The Body cited precedent establishing that the chapeau itself intended to prevent abuse of the specific exceptions that follow it, meaning that measures claiming protection under article XX exceptions must be "reasonable" with respect to parties' legal duties and rights under the WTO Agreement generally. (139)

      The question presented, therefore, boiled down to whether member state policies restraining trade for environmental reasons were "reasonable" in terms of the rights and obligations of members under the foundational WTO Agreement. In this context, the Body again referred to the Agreement's preamble, declaring, "As this preambular language reflects the intentions of negotiators of the WTO Agreement, we believe it must add colour, texture and shading to our interpretation of the agreements annexed to the WTO Agreement, in this case, the GATT 1994." (140) Thus, the preamble's reference to "optimal use of the world's resources in accordance with the objective of sustainable development" allowed for the possibility that trade restrictions with environmental objectives were "reasonable" and, therefore, "justifiable" for the purposes of the article XX chapeau. (141)

      Notably, the Body offered a supplementary argument in support of its use of the preamble in interpreting the chapeau. Specifically, it cited a change in language between the preamble of GATT 1947 and its successor, the WTO Agreement, as proof of "a recognition by WTO negotiators" that enhanced free trade should not come at the expense of the environment. (142) Although GATT 1947's preamble was largely preserved in the new WTO Agreement, the older treaty's stated objective of "full use of the resources of the world" was changed to "optimal use of the...