Preambles in treaty interpretation.

• Author: Hulme, Max H.
• Position: Introduction through II. The VCLT: Text & Context, Object & Purpose, p. 1281-1305

INTRODUCTION I. DEFINING THE PREAMBLE A. Preambles in U.S. Domestic Interpretation B. Preambles in World Constitutions II. THE VCLT: TEXT & CONTEXT, OBJECT & PURPOSE A. Articles 31-32 and the Textual Focus B. Preambles in Practice: Object and Purpose C. Reconciling the Text-and-Context and Object-and-Purpose Approaches III. EXPANSIVE PREAMBULAR POWER IN OBJECT-AND-PURPOSE ANALYSIS A. The WTO and the U.S. Shrimp-Turtle Decision B. Investment Treaty Preambles and Fair and Equitable Treatment 1. From Preambles, Broad Investor-Friendly Rules 2. Criticism of These Rules and the Underlying Treaty Interpretation 3. Signs of Preambular Power C. Preambles in I. C.J. Opinions IV. ALTERNATIVE AND PRACTICAL APPROACHES A. The VCLT Approach and Alternatives B. Implications for States and Negotiators 1. Recognizing the Preamble's Importance in the Context of the Treaty 2. Harnessing the Preamble 3. Taming the Preamble 4. Invoking the Preamble in Disputes CONCLUSION INTRODUCTION

The treaty today is one of the fundamental building blocks in the global structure of international affairs. (1) Given the astonishing proliferation of this instrument, (2) it is unsurprising that the increasingly institutionalized practice of international law has led to the standardization of many aspects of treaties, most famously by the Vienna Convention on the Law of Treaties (VCLT). (3) The VCLT, recognized today as embodying customary international law, (4) focuses on rules governing the various procedural aspects of treaty practice, ranging from the formation of treaties to their termination and--most relevant to this Comment--their interpretation. (5)

Interestingly, the VCLT does not address the form of treaties, beyond stipulating that they be "in written form." (6) This omission may reflect the fact that the formal, written treaty, as it has developed since its earliest-known origins in antiquity, (7) has naturally come to adopt a more-or-less standard format. While exceptions may exist, a sampling of treaties from the past two centuries reveals a consistent structure of a preamble, followed by articles, followed in some cases by annexes. (8) Indeed, the VCLT practically assumes that written treaties will adopt this structure. (9) Treaties today tend to explicitly label these elements, (10) however even older treaties that do not nevertheless exhibit this same organization. (11)

In light of treaties' longstanding structure and the relatively recent emphasis on standardizing and codifying treaty practice, it is surprising that the ubiquitous preamble has received so little attention. Historical evidence suggests that the treaty preamble may be as old as the treaty itself. (12) Yet leading treatises on treaty practice and interpretation rarely devote a lengthy section to--and sometimes contain no index entry for--this seemingly obligatory element of any treaty. (13) Meanwhile, the only full-length academic work to focus on the question of treaty preambles and their effects is a French-language doctoral thesis published in 1941, decades before the drafting of the VCLT. (14) Importantly, this inattention does not result from some universal agreement as to preambles' relevance or lack thereof; on the contrary, treaty preambles appear to be a continuing source of confusion and uncertainty, specifically as regards their role in treaty interpretation. (15)

Uncertainty is by no means foreign to the endeavor of treaty interpretation and the interpretive approach set forth by the VCLT in general. (16) As with interpretation of other written sources of law, this uncertainty may be a necessary evil arising from the need to give interpreters sufficient leeway to arrive at the best interpretation of the treaty at hand. The absence of firm interpretive rules, which might predetermine or limit the possible meanings of a given text, serves to preserve interpreters' discretion and ability to arrive at the correct outcome. (17) Much has been written about the interpretive approach mandated by the VCLT in its articles 31 and 32, notably about the circumstances in which treaty interpreters may have recourse to extratextual sources such as the travaux preparatoires--the drafting history--of treaties. (18) At the broadest level, however, it is universally agreed that the VCLT enshrines a text-based approach to treaty interpretation. (19) And it is precisely this emphasis on the text that makes any uncertainty concerning the importance of preambles--which the VCLT defines as part of that all-important text--a matter of concern for treaty negotiators, parties, and interpreters alike.

The recent debate surrounding the "New START" arms treaty negotiated between the United States and Russia serves as a real and recent example of the uncertainty that surrounds treaty preambles. During the Senate advice and consent hearings on the proposed treaty, significant attention was paid to language in the preamble concerning the relationship between offensive and defensive arms. (20) Specifically, a coalition of senators on the Foreign Relations Committee strenuously argued that the preamble language would place the U.S. under a legal obligation to reduce its strategic defense missile capabilities. (21) Their concern necessarily arose from a view of the preamble as a legally binding part of the treaty capable of creating obligations. (22)

Meanwhile, senators and State Department representatives on the other side of the debate took the opposite view, implying and, in some cases, explicitly stating that preamble language could never be legally binding. Notably, John Kerry, then-Chairman of the Senate Committee on Foreign Relations, stated bluntly, "Obviously, the preamble is not legally binding." (23)

While it is unclear whether this statement refers to that specific treaty's preamble or to preambles in general, (24) others unambiguously expressed an understanding that preambles are powerless to create legal obligations. (25) Moreover, in a variation on that argument, the government and its experts--including former Secretary of State Henry Kissinger--suggested that preambles serve primarily diplomatic purposes, such as by permitting concessions to negotiating parties without creating legal obligations. (26) And in a final sign of the general level of confusion concerning preambles, the debate revealed a mistake in the official manual of Senate procedure, which erroneously declared that the Senate did not have the power to "amend" preambles at all. (27)

As this Comment will demonstrate, the New START Treaty debate provides a glimpse of what is a general state of uncertainty surrounding preambles, the roles they should play, and the roles they do in fact play in international law and treaty interpretation. The diverse views espoused by participants in the New START debate are notable for three reasons: First, they represent both ends of the spectrum of possible views on the question. Second, the individuals expressing those views are in many cases experienced players in the realm of foreign relations. (28) And third, while both extremes of the debate can be understood as matters of common sense, (29) neither seems to correspond to the approach of the VCLT (30) or to the actual conclusions of international tribunals that have wrestled with the question of preambles. (31) In short, their disagreement begs the question: Do treaty preambles in fact matter?

This Comment argues that the answer must be in the affirmative. Contrary to the propositions on display in the New START debate, there is quite simply no basis for a broad statement that preambles, by their very nature, are legally inconsequential. (32) Customary international law, as embodied in the YCLT, supports this conclusion--although it does not provide clear guidance. (33) Nevertheless, in practice, preambles are a frequent subject of discussion among treaty makers, parties to disputes, and adjudicators alike. (34) This state of affairs naturally raises an additional query: To what extent do treaty preambles matter? This Comment aims to construct an answer to this question.

To that end, Part I...