(1281)
COMMENT
PREAMBLES IN TREATY INTERPRETATION
MAX H. HULME
†
I
NTRODUCTION ............................................................................ 1282
I. D
EFINING THE PREAMBLE ...................................................... 1288
A. Preambles in U.S. Domestic Interpretation .................................... 1290
B. Preambles in World Constitutions ................................................ 1293
II. T
HE VCLT: TEXT & CONTEXT, OBJECT & PURPOSE ............... 1296
A. Articles 31-32 and the Textual Focus ............................................ 1297
B. Preambles in Practice: Object and Purpose .................................... 1300
C. Reconciling the Text-and-Context and Object-and-Purpose
Approaches ............................................................................... 1303
III. E
XPANSIVE PREAMBULAR POWER IN OBJECT-AND-PURPOSE
ANALYSIS ................................................................................ 1305
A. The WTO and the U.S. Shrimp–Turtle Decision ......................... 1307
B. Investment Treaty Preambles and Fair and Equitable Treatment ...... 1312
1. From Preambles, Broad Investor-Friendly Rules ................. 1312
2. Criticism of These Rules and the Underlying Treaty
Interpretation .................................................................... 1317
3. Signs of Preambular Power ............................................... 1320
C. Preambles in I.C.J. Opinions ....................................................... 1324
IV. A
LTERNATIVE AN D PRACTICAL APPROACHES .......................... 1330
A. The VCLT Approach and Alternatives .......................................... 1331
†
Senior Editor, Volume 164, University of Pennsylvania Law Review. J.D. Candidate, 2016,
University of Pennsylvania Law School. Master 2 (Droit économique) Candidate, 2016, L’Institut
d’études politiques de Paris (Sciences Po). B.A., 2009, Middlebury College. Thank you to my
professors at the University of Pennsylvania Law School and in particular to Professor Jean
Galbraith, whose guidance and support was invaluable throughout this process; to the University of
Pennsylvania Law Review sta for their tireless work on this Comment; and to my family and friends
for their enduring patience and love over these past three years.
1282 University of Pennsylvania Law Review [Vol. 164: 1281
B. Implications for States and Negotiators ......................................... 1333
1. Recognizing the Preamble’s Importance in the Context
of the Treaty ..................................................................... 1334
2. Harnessing the Preamble .................................................. 1336
3. Taming the Preamble ........................................................ 1338
4. Invoking the Preamble in Disputes .................................... 1340
C
ONCLUSION ................................................................................ 13 42
I
NTRODUCTION
The treaty today is one of the fundamental building blocks in the global
structure of international aairs.
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
1
See Duncan B. Hollis, Dening Treaties (“Today, the treaty is the dominant instrument through
which international law operates.”), in T
HE OXFORD GUIDE TO TREATIES 11, 43 (Duncan B. Hollis
ed., 2012); Richard D. Kearney & Robert E. Dalton, The Treaty on Treaties, 64 A
M. J. INT’L L. 495,
495 (1970) (describing treaties as “the indispensable element in the conduct of foreign aairs” and
“the cement that holds the world community together”).
2
For example, a list of just the formal bilateral treaties to which the United States is currently
a party spans 325 pages. See U.S.
DEP’T OF STATE, TREATIES IN FORCE: A LIST OF TREATIES
AND
OTHER INTERNATIONAL AGREEMENTS OF THE UNITED STATES IN FORCE ON JANUARY 1,
2013, at 1-325 (2013), http://www.state.gov/documents/organization/218912.pdf [https://perma.cc/
RPE9-8BNK]. And in the realm of investment treaties alone, almost 2000 bilateral investment
treaties were signed between their invention in the 1960s and the end of the twentieth century. See
Andrew Newcombe, Sustainable Development and Investment Treaty Law, 8 J.
WORLD INV. & TRADE
357, 362-63 n.33 (2007) (tracing the history of this type of treaty).
3
See Vienna Convention on the Law of Treaties pmbl., Jan. 27, 1980, 1155 U.N.T.S. 331
[hereinafter VCLT] (“[T]he codication and progressive development of the law of treaties . . . will
promote the purposes . . . of international peace and security, the development of friendly relations
and the achievement of co-operation among nations . . . .”); see also Evan Criddle, The Vienna
Convention on the Law of Treaties in U.S. Treaty Interpretation, 44 V
A. J. INT’L L. 431, 437 (2004)
(noting that the responsibility of the VCLT’s drafters was “the codication and progressive
development of international custom”).
4
See, e.g., Sarah Williams, Introduction to 40 YEARS OF THE VIENNA CONVENTION ON THE
LAW OF TREATIES, at xiii, xvii (Alexander Orakhelashvili & Sarah Williams eds., 2010) (noting that
“it now appears that States have elected not to ratify [the VCLT] due to the belief that [it]—or at
least some of its provisions—is considered to reect customary international law” and that “the
[International Court of Justice] and other international judicial bodies have held that several of [its
provisions] constitute customary international law”); see also Chubb & Son, Inc. v. Asiana Airlines,
214 F.3d 301, 308 (2d Cir. 2000) (“The United States recognizes the Vienna Convention as a
codication of customary international law.”); Vienna Convention on the Law of Treaties, U.S.
DEP’T
ST., http://www.state.gov/s/l/treaty/faqs/70139.htm [https://perma.cc/QKY4-4M6T] (last visited
Mar. 19, 2016) (explaining that, while the U.S. is not a party to the VCLT, it “considers many of the
2016] Preambles in Treaty Interpretation 1283
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 reect 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
provisions of the Vienna Convention on the Law of Treaties to constitute customary international
law on the law of treaties”).
5
See VCLT, supra note 3, arts. 6-18 (setting forth the rules governing the signing and ratifying
of treaties); id. arts. 54-64 (setting forth the rules governing the termination of treaties); id. arts. 31-
33 (setting forth the rules governing treaty interpretation).
6
See id. art. 2(a) (“‘Treaty’ means an international agreement concluded between States in
written form . . . .”). This statement does not preclude international agreements from taking other
forms, but rather limits the extent to which such agreements will be governed by the VCLT. I
AN
BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 609-10 (7th ed. 2008).
7
See Baron S. A. Kor, An Introduction to the History of International Law, 18 AM. J. INT’L L.
246, 249 (1924) (citing, for example, a treaty concluded between the ancient kingdoms of Sumer and
Ummah in the fourth millennium B.C.E.).
8
For examples of treaties with a clear—though unlabeled—preamble, followed by labeled
articles and annexes, see Covenant of the League of Nations; Marrakesh Agreement Establishing
the World Trade Organization, Apr. 15, 1994, 1867 U.N.T.S. 154 [hereinafter WTO Agreement];
Treaty on Weights and Measures, May 20, 1875, 20 Stat. 709.
9
See VCLT, supra note 3, art. 31(2) (referring generally to the treaty’s “text” as “including its
preamble and annexes”).
10
For an example of a treaty with a clearly labeled preamble and articles, see the U.N. Charter.
11
See, e.g., Treaty of Amity, Commerce, and Navigation, Gr. Brit.–U.S., Nov. 19, 1794, 8 Stat.
116 (commencing with a shorter statement of purposes, followed by numbered articles); the Articles
of the Treaty of Peace, Oct. 24, 1648, 1 Consol. T.S. 271 [hereinafter Treaty of Westphalia]
(commencing with a long statement of the historical events preceding the treaty and the parties’
motivations in arriving at its conclusion).
12
See PAUL YOU, LE PRÉAMBULE DES TRAITÉS INTERNATIONAUX 1 (1941) (noting that the
oldest known treaty, concluded between Ramses II and a neighboring power in the thirteenth century
B.C., began with a recognizable preamble, as did many treaties from Greek and Roman antiquity).
1284 University of Pennsylvania Law Review [Vol. 164: 1281
obligatory element of any treaty.
13
Meanwhile, the only full-length academic
work to focus on the question of treaty preambles and their eects 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, specically 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
sucient leeway to arrive at the best interpretation of the treaty at hand. The
absence of rm 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 préparatoires—the drafting
13
For example, Richard Gardiner’s book Treaty Interpretation devotes just two paragraphs to
the preamble. See R
ICHARD K. GARDINER, TREATY INTERPRETATION 186-87 (2008). The Oxford
Guide to Treaties has no index entry for preambles and does not specically address their role. See
T
HE OXFORD GUIDE TO TREATIES (Duncan B. Hollis ed., 2012). And Vienna Convention on the
Law of Treaties: A Commentary devotes one small paragraph to preambles, noting that there “are
many examples in international jurisprudence of reference being made to the preamble of a treaty.”
See Oliver Dörr, Article 31: General Rule of Interpretation, in
VIENNA CONVENTION ON THE LAW OF
TREATIES: A COMMENTARY 521, 544 (Oliver Dörr & Kirsten Schmalenbach eds., 2012).
14
See generally YOU, supra note 12. A more recent and substantially shorter article focusing on
treaty preambles was published in Liber Amicorum Mohammed Bedjaoui, a collection of essays on a
variety of legal subjects published in 1999 in honor of former judge and President of the I.C.J.
Mohammed Bedjaoui. Eric Suy, Le Préambule, in L
IBER AMICORUM MOHAMMED BEDJAOUI 253
(Emile Yakpo & Tahar Boumedra eds., 1999). Both You’s doctoral thesis and Suy’s article are French-
language works.
15
See, e.g., Borzu Sabahi & Kabir Duggal, Philip Morris Brands Sàrl v. Oriental Republic of
Uruguay, 108 A
M. J. INT’L L. 67, 72 (2014) (noting that there is a “question of interpretation
concern[ing] the role of preambles in treaty interpretation” and that “many prior tribunals . . . [have]
not oer[ed] guidance on the role that preambles should play as an aid in interpretation”).
16
See Panos Merkouris, Introduction to TREATY INTERPRETATION AND THE VIENNA
CONVENTION ON THE LAW OF TREATIES: 30 YEARS ON 1, 4 (Malgosia Fitzmaurice et al. eds.,
2010) [hereinafter T
REATY INTERPRETATION] (providing examples of obstacles in treaty
interpretation dating back to antiquity and noting that they caused “many problems to the drafters
of the VCLT” centuries later).
17
See BROWNLIE, supra note 6, at 631 (“As with statutory interpretation, a choice of a ‘rule’,
for example of ‘eectiveness’ or ‘restrictive interpretation’, may in a given case involve a preliminary
choice of meaning rather than a guide to interpretation.”); see also Merkouris, supra note 16, at 6
(noting that interpretive problems are inevitable given the “inherent defects of language”).
2016] Preambles in Treaty Interpretation 1285
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 denes 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, signicant attention was paid to
language in the preamble concerning the relationship between oensive and
defensive arms.
20
Specically, 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
18
See generally Julian Davis Mortenson, The Travaux of Travaux: Is the Vienna Convention Hostile
to Drafting History?, 107 A
M. J. INT’L L. 780 (2013) (arguing that the interpretive approach intended
by the VCLT has since been misunderstood as viewing travaux as a resource of last resort only, whereas
the VCLT’s drafters intended travaux to play a more important role in treaty interpretation).
19
The VCLT is explicit on this point. See VCLT, supra note 3, art. 31(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.”).
20
The language at issue read, “Recognizing the existence of the interrelationship between strategic
offensive arms and strategic defensive arms, that this interrelationship will become more important as
strategic nuclear arms are reduced . . . .” S.
REP. NO. 111-6, at 38 (2010). Cf. Treaty on Measures for the
Further Reduction and Limitation of Strategic Offensive Arms, Russ.–U.S., Apr. 8, 2010, T.I.A.S. No.
11,205 [hereinafter New START Treaty] (including the same language in the final treaty).
21
See S. REP. NO. 111-6, at 7 (2010).
22
See, e.g., 156 CONG. REC. S10,377-78 (daily ed. Dec. 16, 2010) (statement of Sen. Kyl)
(recounting one senator’s view that modication of the preamble would be required to address his
concerns about the treaty and its eects on U.S. missile defense, and that the preamble provides the
Russians with a “legal basis for their withdrawal if [the U.S.] improve[s] [its] missile defenses
qualitatively”); id. at S10,379 (“[I]t appears to me that . . . the Russians have built into this treaty
and into the preamble the perfect argument for withdrawal . . . .” (emphasis added)); see also Press
Release, U.S. Senator John Barrasso, Barrasso, Senators Secure Key Ruling to Amend START
Preamble (Dec. 15, 2010), http://www.barrasso.senate.gov/public/index.cfm/2010/12/post-eabe73c2-
dc3c-56f7-de4a-7ebd51d36857 [https://perma.cc/V346-U5VD] (“START’s preamble specically
places limits on missile defense . . . .”).
23
The New START Treaty: Hearing Before the S. Comm. on Foreign Relations, 111th Cong. 268
(2010) (statement of Sen. John Kerry, Chairman, S. Comm. on Foreign Relations).
1286 University of Pennsylvania Law Review [Vol. 164: 1281
While it is unclear whether this statement refers to that specic 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 nal sign of the general level of confusion concerning preambles, the
debate revealed a mistake in the ocial 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
24
During the Senate hearings, Secretary of State Hillary Clinton made a similarly ambiguous
statement: “The treaty’s preamble . . . is simply a statement of fact. It does not constrain our missile
defense programs in any way.” Id. at 40 (statement of Hillary Clinton, Sec. of State). Her view of
the eect of the preamble language is clear, however the basis for her conclusion is less evident. Was
she citing the relevant language itself, or the fact that it appears in the preamble?
25
See 156 CONG. REC. S10,267 (daily ed. Dec. 15, 2010) (statement of Sen. Lugar) (“[P]reamble
language does not permit rights nor impose obligations, and it cannot be used to create an obligation
under the treaty.”).
26
“There are two aspects in which the treaty talks about missile defense. One is in the
preamble . . . [and] is not prescriptive . . . . In an abstract world, and if I could have written the
treaty without a Russian counterpart, I might not have put that in. But, it’s a statement of—it’s a
truism. It is not an obligation.” The New START Treaty: Hearing Before the S. Comm. on Foreign
Relations, supra note 23, at 175-76 (statement of Henry Kissinger); see also id. at 164-65 (statement of
Sen. John Kerry, Chairman, S. Comm. on Foreign Relations) (“The preamble to the New START
Treaty acknowledges the relationship between oensive forces and missile defenses [and] . . .
nothing more . . . . [W]e’re tipping our hat to Russia’s concerns without giving anything away.”); id.
at 207-09 (relaying an exchange in which a senior adviser at the U.S. Institute of Peace portrays the
preamble language as Russia’s eort to calm its own domestic voices that had expressed concern
about U.S. missile defense).
27
Compare FLOYD M. RIDDICK & ALAN S. FRUMIN, RIDDICK’S SENATE PROCEDURE:
PRECEDENTS AND PRACTICES, S. DOC. NO. 101-28, at 1299 (1992) (“Preambles to treaties are not
amendable . . . .”), with Josh Rogin, GOP Wins First Procedural Battle as New START Debate Set to
Begin, T
HE CABLE (Dec. 14, 2010), http://thecable.foreignpolicy.com/posts/2010/12/14/gop_
wins_rst_procedural_battle_as_new_start_debate_set_to_begin [https://perma.cc/QA5T-YU92]
(noting that the Senate Parliamentarian inquired into the statement in the Senate manual and later
conrmed that preambles could, in fact, be amended by the Senate). The use of the term “amend”
in this context is confusing, as the Senate cannot negotiate treaty language itself. See U.S.
CONST.
art. II, § 2 (conferring the “power, by and with the advice and consent of the Senate, to make
treaties” to the President). Presumably, “amend” in this context refers to Senate consent conditioned
upon a modication of treaty language. Indeed, once the Senate Parliamentarian corrected this
ambiguity, one senator attempted—but failed to obtain the necessary votes—to “amend” the
controversial language in the New START Treaty. S.
REP. NO. 111-6, supra note 20, at 80 (noting
that Senator Barrasso’s amendment to remove the language at issue from the preamble was rejected).
2016] Preambles in Treaty Interpretation 1287
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 armative.
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 VCLT, 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 aairs naturally raises an additional query:
28
Alternatively, it could be argued that the objectors were motivated primarily by domestic
political inghting rather than by a rm conception of the workings of treaty law. See, e.g., Barrasso
Should Listen to Simpson on Treaty, C
ASPER STAR-TRIBUNE (Dec. 17, 2010, 12:00 AM), http://
trib.com/news/opinion/editorial/barrasso-should-listen-to-simpson-on-treaty/article_03a97902-
9db7-5227-8a51-f72887d78adb.html [https://perma.cc/F8AR-UB32] (deeming the objecting
senators’ actions a “head-long rush to deny the president a foreign policy victory”). However, the
participants on both sides of the debate—all members of the Senate Committee on Foreign
Relations or invited experts—were hardly inexperienced in treaty issues. For example, former
senator Richard Lugar, who stated atly that preambles could not impose legal obligations, see supra
note 25, has a long track record on foreign aairs issues and was notably knighted by Queen
Elizabeth II for his work on arms treaties. See Senator Lugar, L
UGAR CTR.,
http://www.thelugarcenter.org/about-lugar.html [https://perma.cc/7XXB-37AC] (last visited Mar.
19, 2016) (providing a biography of the former senator). Therefore, the disparity between these
broad statements by experts, on the one hand, and the approach mandated in the VCLT and applied
by actual tribunals, on the other hand, suggests that confusion, rather than obstinacy, was the major
factor in the debate. See infra Parts II–III (describing the approaches of the VCLT and specic
international tribunals towards preambles).
29
See infra Part I (looking to preambles in other legal contexts for clues as to possible inherent
limits on their legal eect).
30
See infra Part II (discussing the VCLT and its approach to interpretation).
31
See infra Part III (discussing three contexts in which preambles have been given expansive
legal weight by international tribunals).
32
See infra Part I (discussing the role and legal eect of preambles generally).
33
See infra Part II (discussing the VCLT’s approach to treaty interpretation, and the roles that
it aords preambles in both the text-and-context and object-and-purpose analysis it calls for when
interpreting treaty terms).
34
The New START Treaty debate illustrates the dispute among treaty makers in the domestic
context. See generally The New START Treaty: Hearing Before the S. Comm. on Foreign Relations, supra
note 23 (recording the debate over the New START treaty). But internationally, parties to disputes
and adjudicators also commonly wrestle with the question of preambles and their legal effects. See infra
Parts II–III (examining the treatment of preambles by international law bodies and tribunals).
1288 University of Pennsylvania Law Review [Vol. 164: 1281
To what extent do treaty preambles matter? This Comment aims to construct
an answer to this question.
To that end, Part I establishes the potential range of roles that preambles
may perform, drawing on the analogous contexts of preambles to statutes and
constitutions in the U.S. and global contexts. Part II identifies the VCLT’s
article 31 and its definitions of text, context, and object and purpose as a
potential source of confusion that situates preambles somewhere in the middle
of the spectrum of power. As argued infra, the VCLT does so by both mandating
(explicitly) that preambles be considered as part of the text of the treaty and by
authorizing (implicitly) reference to preambles when analyzing a treaty’s object
and purpose. Part III examines some of the more intriguing international
decisions invoking preambles in the context of the World Trade Organization,
the field of international investment arbitration, and the jurisprudence of the
International Court of Justice. Finally, Part IV draws upon the bases laid out in
the preceding Parts to explore alternate doctrinal approaches and to suggest
ways in which parties negotiating or bound by treaties should approach their
preambles given the present uncertainty that surrounds them.
I. D
EFINING THE PREAMBLE
Before turning to the role of preambles in the specic context of treaties,
it is helpful to establish an initial understanding of preambles as legal
instruments in general. In everyday parlance, a preamble is simply a
preliminary statement that often explains the purpose of that which it
introduces.
35
In the realm of law, a slightly more specic denition
intrinsically links preambles with statements of the motivations and
objectives that inform the legal document they introduce.
36
Today, preambles
appear in a variety of written legal documents, including contracts, statutes,
laws, and constitutions. It is noteworthy, however, that while legal denitions
of the preamble address their placement and traditional content, they fail to
dene the extent of—or any limitation on—their legal eect.
In purely theoretical terms, two outer bounds can be logically envisioned
for preambles’ roles. The range of views expressed during the New START
Treaty debate serves as a helpful illustration of this spectrum. At one extreme,
the preamble could be an ancillary text that exists outside the “four corners”
35
See, e.g., Preamble, THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH
LANGUAGE 1424 (3d ed. 1992) (dening a preamble as “[a] preliminary statement, especially the
introduction to a formal document that serves to explain its purpose”).
36
See Preamble, BLACK’S LAW DICTIONARY 1294-95 (9th ed. 2009) (dening the preamble as
“[a]n introductory statement in a constitution, statute, or other document explaining the document’s
basis and objective; esp., a statutory recital of the inconveniences for which the statute is designed
to provide a remedy”).
2016] Preambles in Treaty Interpretation 1289
of the document it introduces with no legal eect whatsoever,
37
perhaps
because it is viewed as a pure formality.
38
For the purposes of this Comment,
I refer to this extreme as the “ceremonial extreme.” At the other extreme, a
preamble could be an integral part of the text, as capable of providing
substantive content—i.e. creating rights and imposing obligations—as are the
provisions that follow it: this is the “substantive extreme.”
39
Of course, this
proposed spectrum is a simplication,
40
notably at the substantive extreme,
where preambles could exert power in various ways: a strong, clear statement
of objectives in a preamble endowed with maximal legal power could, for
example, undermine or invalidate a contrary operative provision or article.
41
For present purposes, however, it suces to recognize these two extremes
and that many possible points of power may exist between them.
42
With this theoretical spectrum established, this Part aims to populate this
range with data points drawn from practice through a brief investigation of
two nontreaty contexts in which preambles’ role is better established. In the
United States, well-established precedential rules for interpreting domestic
legal texts limit—but do not wholly deprive—preambles of their power in
most contexts, perhaps most surprisingly in that of the Constitution.
However, in the comparative constitutional context, no such clear rule exists
and a greater variety of approaches may be observed. Together, these
observations establish that there is no basis for declaring preambles to be
legally powerless by their very nature.
37
See, e.g., 156 CONG. REC. S10,267 (daily ed. Dec. 15, 2010) (statement of Sen. Lugar)
(“[P]reamble language does not permit rights nor impose obligations, and it cannot be used to create au
[sic] obligation under the treaty.”).
38
For example, preambles in the treaty context often use an antiquated, formal style consisting
of an introduction of the parties, followed by a series of gerundial phrases that transform the
preamble into a single, introductory sentence that terminates with the phrase, “[h]ave agreed as
follows.” See, e.g., WTO Agreement, supra note 8, pmbl. (consisting of a single sentence beginning
with the phrase “The Parties to this Agreement,” followed by a series of gerundial phrases, and
terminating with the statement, “Agree as follows: . . . .”).
39
See, e.g., Press Release, U.S. Senator John Barrasso, supra note 22 (“START’s preamble
specically places limits on missile defense . . . .”).
40
In the interest of simplicity, this Comment denes a one-dimensional spectrum of legal
power; however it is easy to imagine additional axes that could produce a more complex model.
Possible examples include the nature of the preambular language (substantive versus formal) or the
amount of attention paid to the preamble in the negotiating process.
41
The question of whether preambles can substantively limit or expand upon later provisions
is a major point of uncertainty in the treaty context, notably in the area of investment arbitration.
See infra Section III.C.
42
Former Secretary of State Hillary Clinton’s statement that the New START Treaty
preamble has no eect on U.S. missile defense capabilities, if understood as based on the language
at issue rather than its location in the preamble, represents one such intermediate point on the
spectrum. See The New START Treaty: Hearing Before the S. Comm. on Foreign Relations, supra note 23, at 40.
1290 University of Pennsylvania Law Review [Vol. 164: 1281
A. Preambles in U.S. Domestic Interpretation
Preambles in American law are located near—but not fully at—the
ceremonial extreme of the theoretical spectrum identified above. As a general
rule, the legal power of preambles in U.S. domestic law has been strictly limited
by precedent and a dominant view of preambles as external to the documents
they introduce. This dismissive approach toward preambles proves consistent
across all types of domestic legal instruments, although its strength or particular
expression may vary as a function of the particular document being interpreted.
In the areas of statutory and regulatory interpretation, preambles are
eectively resources of last resort. This secondary status is the natural
consequence of a longstanding interpretive posture that chooses to view them
as separate from the actual statutory act to which they are attached.
43
Thus,
preambles serve only to clarify ambiguous text in the “actual” act, a non-trivial
but nevertheless severely limited role.
44
With the rise of regulatory regimes
in the twentieth century, courts translated this approach into the “analogous
context”
45
of regulatory interpretation, establishing an identical rule that
requires ambiguity before allowing recourse to regulatory preambles for
interpretive purposes.
46
Thus, while preambles are not devoid of legal weight,
courts resist their use as a general matter.
The U.S. Constitution presents a more interesting case for three reasons:
its tendency to use ambiguous language,
47
the level of fame its preamble’s
43
See Yazoo & Miss. Valley R.R. Co. v. Thomas, 132 U.S. 174, 188 (1889) (“[T]he preamble is
no part of the act, and cannot enlarge or confer powers . . . .”).
44
See id. (“[U]nless [the words of the act] are doubtful or ambiguous, the necessity of resorting
to [the preamble] to assist in ascertaining the true intent and meaning of the legislature is in itself
fatal to the claim set up.”); see also Ass’n of Am. R.R. v. Costle, 562 F.2d 1310, 1316 (D.C. Cir. 1977)
(“Where the enacting or operative parts of a statute are unambiguous, the meaning of the statute
cannot be controlled by language in the preamble.”).
45
Wyo. Outdoor Council v. U.S. Forest Serv., 165 F.3d 43, 53 (D.C. Cir. 1999).
46
See El Comite Para el Bienestar de Earlimart v. Warmerdam, 539 F.3d 1062, 1070 (9th Cir.
2008) (“[T]he preamble language should not be considered unless the regulation itself is
ambiguous.”); Baystate Med. Ctr. v. Leavitt, 545 F. Supp. 2d 20, 39 (D.D.C. 2008) (“[I]solated
preamble language is of no moment, for ‘the court, as well as the agency, must give eect to the
unambiguously expressed intent of Congress.’” (citing Chevron, U.S.A., Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837, 842-43 (1984)).
47
See, e.g., Lynn A. Baker, Constitutional Ambiguities and Originalism: Lessons from the Spending
Power, 103 N
W. U. L. REV. 495, 495 (2009) (noting that even supporters of originalist interpretations
of the Constitution “acknowledge that some constitutional provisions are ambiguous”). For example,
both the Spending Clause and the Commerce Clause of the original Constitution’s Article I can be—
and have been—read in many different ways. See id. at 511-19 (discussing the original textual and the
Supreme Court’s subsequent understandings of the Spending Clause). Compare Carter v. Carter Coal
Co., 298 U.S. 238 (1936) (requiring a “direct effect” on interstate commerce in order for Congress to
regulate under the Commerce Clause), with Katzenbach v. McClung, 379 U.S. 294 (1964) (holding
unanimously that Congress’s “rational basis” for believing that a given activity has effects, even indirect
ones, on interstate commerce is sufficient for Congress to regulate the activity). Ambiguous language
2016] Preambles in Treaty Interpretation 1291
language has achieved,
48
and the actual irrelevance of the Constitution’s
preamble in constitutional construction.
49
Given the application of preambles
to remedy ambiguity in the statutory and regulatory contexts, it would be
reasonable to presume that the Constitution’s at-times ambiguous language
would lead to greater reliance on the preamble than in statutory and regulatory
analysis. However, the reality proves to be largely to the contrary.
In effect, the preamble to the Constitution has been reduced to a mostly
rhetorical role. In Jacobson v. Massachusetts, the Supreme Court noted,
“Although that Preamble indicates the general purposes for which the people
ordained and established the Constitution, it has never been regarded as the
source of any substantive power conferred on the Government of the United
States or on any of its Departments.”
50
This holding has been described as a
narrow—and correct—observation that the famous paragraph that begins with
“We the people . . .”
51
does not confer rights “by itself.”
52
Yet in practice, the
Court’s decision has had the more far-reaching effect of forestalling recourse
by courts to the preamble even as a purely interpretive tool. This perceived bar
applies even when courts must interpret constitutional questions concerning
notions explicitly mentioned in the preamble’s text.
53
The reduction of the
is also prevalent in the Bill of Rights and later constitutional Amendments, whose requirements of
“equal protection” and “due process” have been subject to wildly different interpretations and produced
strikingly different outcomes. See Milton Handler et al., A Reconsideration of the Relevance and
Materiality of the Preamble in Constitutional Interpretation, 12 C
ARDOZO L. REV. 117, 149-51 (1990) (listing
the inconsistent decisions that have arisen from these concepts).
48
In 2011, for example, the White House established an online petitioning system entitled “We
the People,” a clear reference to the preamble. We the People: Your Voice in Our Government, W
HITE
HOUSE, https://petitions.whitehouse.gov [https://perma.cc/A6V9-DD5L] (last visited Mar. 19,
2016). The preamble to the U.S. Constitution has even been immortalized in song as part of the
famous children’s educational video series, Schoolhouse Rock. See EnemyMindControl, School House
Rock—The Preamble, Y
OUTUBE (Oct. 21, 2011), https://www.youtube.com/watch?v =yHp7s MqPL0g
[https://perma.cc/DNP4-KA29].
49
See generally Handler, supra note 47, at 117 (deeming the Constitution’s preamble “the most
neglected feature of our organic charter,” having been “relegated to sheer irrelevance by the courts”).
50
197 U.S. 11, 22 (1904).
51
U.S. CONST. pmbl.
52
Handler et al., supra note 47, at 122; see also Jacobson, 197 U.S. at 22 (suggesting that the nature of
the Constitution itself, which acts to expressly delegate powers, prevents the comparatively general
preambular language from having substantive effects on that delegation); 1 J
OSEPH STORY,
COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 462 (1833) (“The preamble never
can be resorted to, to enlarge the powers confided to the general government or any of its departments. It
cannot confer any power per se . . . . Its true office is to expound the nature, and extent, and application
of the powers actually conferred by the constitution, and not substantively to create them.”).
53
See Handler et al., supra note 47, at 122-23 (“The Jacobson court’s unequivocal rejection of the
preamble as a source of rights has eectively discouraged most courts from considering the preamble
in any context in which any contentious issues arise concerning liberty, justice or welfare.”); see also
Liav Orgad, The Preamble in Constitutional Interpretation, 8 I
NT’L J. CONST. L. 714, 718-21 (2010)
(noting that U.S. courts’ references to the preamble, while “provid[ing] the preamble with some
constitutional weight,” do not make it “a decisive factor in constitutional interpretation”).
1292 University of Pennsylvania Law Review [Vol. 164: 1281
preamble to a rhetorical, rather than interpretive, tool has elicited recent
criticism as a missed opportunity to make use of a clear statement of the
Framers’ intent.
54
Nevertheless, the preamble’s limited force remains a practical
reality of U.S. courts’ approach to constitutional interpretation today.
55
From this brief overview, two important initial points may be drawn.
First, although the preamble in U.S. constitutional interpretation occupies a
place towards the ceremonial extreme of the spectrum of legal power,
preambles are not wholly powerless. In other words, even when preambles
are viewed as “no part” of the relevant document, cases may still arise where
circumstances—such as ambiguity—require that they be given interpretive
weight. The constitutional case does not explicitly counter this conclusion,
and illustrates a second important point: it is dicult to extricate a preamble’s
potential legal power from its actual legal power in its drafted form.
56
As noted
above, even scholars who argue that greater weight should be aorded to the
preamble would not refute the Court’s holding in Jacobson. Rather, the Court’s
holding was conned merely to an examination of that particular preamble’s
eects, based on its substantive content in light of the main document’s
general approach of expressly delegating powers.
57
In other words, a judicial
54
See, e.g., Handler et al., supra note 47, at 118 (“As an authoritative recital of the Constitution’s
purposes and the intent of its framers, the preamble would seem well-suited to playing a useful role
in constitutional interpretation . . . .”); id. at 148-63 (revisiting recent decisions and controversial
issues, and evaluating how proper use of the preamble might have aided the Court in reaching a
correct outcome).
55
The Court recently took a similar approach to the analogous prefatory statement of the
Second Amendment in District of Columbia v. Heller, 554 U.S. 570 (2008). Justice Scalia, writing for
the majority, eectively relegated the prefatory statement to a merely conrmatory role, announcing
early in the opinion, “[W]e will begin our textual analysis with the operative clause . . . [and] will
return to the prefatory clause to ensure that our reading of the operative clause is consistent with
the announced purpose.” Id. at 578. This approach permitted the Court to conclude that the
prefatory statement’s clear reference to a “well regulated Militia” imposed no limit on the right to
bear arms established by the subsequent operative clause. See id. at 595-600 (analyzing the prefatory
clause and its relationship to the operative clause). Justice Stevens, in his dissent, criticized Scalia’s
disregard for the prefatory statement, arguing that “[s]uch text should not be treated as mere
surplusage” and that such an approach “is not how this Court ordinarily reads such texts . . . .” Id.
at 643 (Stevens, J., dissenting). The clear suggestion is that such an interpretation is analytically
unsound and makes sense only to achieve a predetermined and sought-after result. See id. at 644
(“[T]he Court proceeds to ‘nd’ its preferred reading in what is at best an ambiguous text, and then
concludes that its reading is not foreclosed by the preamble.”).
56
See, e.g., Orgad, supra note 53, at 730 (“[T]he legal status of the preamble depends on various
criteria: among them is its content.”); see also C
SABA VARGA, The Preamble: A Question of
Jurisprudence (“[I]t is not a sine qua non condition that the introductory content should be functionally
of a secondary nature compared to the parts following it.”), in L
AW AND PHILOSOPHY: SELECTED
PAPERS IN LEGAL THEORY 141, 146 (1994).
57
See Handler et al., supra note 47, at 122 (“[T]hese courts [do not] . . . consider what role the
preamble might play as an interpretive aid or guide . . . .” (emphasis added)); Orgad, supra note 53,
at 721 (“[W]hile [the preamble] is not an independent source of rights neither is it constitutionally
irrelevant.”); see also Jacobson v. Massachusetts, 197 U.S. 11, 22 (1904) (suggesting that the nature of
2016] Preambles in Treaty Interpretation 1293
statement that a specic preamble provides no substantive rights must not be
confused for a statement that preambles generally could not do so.
B. Preambles in World Constitutions
A brief survey of global practices rmly refutes the notion that the legal
power of preambles is inherently limited. While a full survey of foreign
approaches to preambles in statutory interpretation exceeds the scope of this
Comment, it should be noted as a preliminary matter that the general and
longstanding approach in common law countries is to approve of the use of
preambles in statutory interpretation, although the extent of their legal power
continues to be a subject of debate.
58
More important for the purposes of this
Comment, however, is the global constitutional context—which reveals a
variety of legal weights given to constitutional preambles, notably including
examples falling toward the substantive extreme of the spectrum.
In his recent article, The Preamble in Constitutional Interpretation, Liav
Orgad establishes a tripartite typology of constitutional preambles based on
national practice worldwide. According to Orgad, constitutional preambles
can generally be classied, in order of increasing legal power, as ceremonial-
symbolic, interpretive, or substantive.
59
This typology closely corresponds to
the theoretical spectrum of legal power identied above.
At the ceremonial extreme lies the “ceremonial-symbolic” preamble,
which has no or severely limited legal power.
60
According to Orgad, Plato was
the rst to elaborate this concept of a preamble, whose role was primarily to
“sell” the relevant law to the people by convincing them of its virtue. These
preambles will often “use abstract terms and invoke poetic ideals.”
61
Orgad
cites the U.S. Constitution’s preamble as a classic example: “persuasive,
symbolic, [it] . . . generally has no legal force.”
62
Further distanced from the ceremonial extreme of the theoretical
spectrum is the interpretive preamble, which corresponds to the common-law
the Constitution itself, which acts to expressly delegate powers, prevents the comparatively general
preambular language from having substantive eects on that delegation).
58
See, e.g., 1 WILLIAM BLACKSTONE, COMMENTARIES *7 (“If words happen to be still
dubious, we may establish their meaning from the context . . . . Thus the proem, or preamble, is often
called in to help the construction of an act of parliament.” (emphasis added)); Anne Winckel, The
Contextual Role of a Preamble in Statutory Interpretation, 23 M
ELBOURNE U. L. REV. 184, 184-89 (1999)
(noting that preambles in Australian statutory interpretation are agreed to serve both a constructive
role, whose “extent . . . will always be dependent on the individual facts of each case,” and a
considerably more contentious “contextual” role).
59
See Orgad, supra note 53, at 715 (identifying the typology).
60
Id. at 722.
61
Id.
62
Id.
1294 University of Pennsylvania Law Review [Vol. 164: 1281
tradition of statutory preambles.
63
Constitutional preambles in this category
serve in eect to resolve ambiguities or to aid courts in choosing between
multiple possible interpretations, favoring that which best aligns with the
language of the preamble.
64
Despite their origins in common-law traditions
of statutory interpretation, these preambles may be found in the constitutions
of both common- and civil-law countries, including South Africa, Estonia,
and Germany.
65
Most interesting, however, are the preambles that fall on the substantive
extreme of the theoretical spectrum. These “substantive preambles” are
“legally binding constitutional clauses” that “serve as independent sources for
rights and obligations.”
66
Under this conception, the preamble in fact
occupies a higher hierarchical position than the “constitutional law” set forth
in the body of the document: whereas the constitution’s provisions will
“govern behavior and set norms,” the preamble “contains . . . ‘fundamental
political decisions’” that have the power to govern the terms that follow.
67
Orgad provides a number of examples of such substantive preambles as
proof of what he calls a “growing use of preambles in constitutional
interpretation.”
68
Often, these constitutional preambles have been given
substantive legal force by subsequent judicial interpretation. In France, for
example, the preamble to the Constitution of the Fifth Republic refers to the
“Rights of Man” dened in two earlier documents: the Declaration of 1789
and the preamble to the Constitution of the earlier Fourth Republic.
69
A 1971
decision by the Conseil constitutionnel, which Orgad deems France’s
equivalent of Marbury v. Madison, “recognized the preamble’s binding force
as an independent legal source of human rights” by granting “constitutional
legal status ex post facto” to the Constitution and the two documents
63
Id. at 723.
64
Id. at 724.
65
See id. at 724-26 (providing examples of how these three countries have applied their
constitutional preambles in aid of interpreting various statutes and treaties).
66
Id. at 726.
67
See id. (“Preambles, to a large extent, represent the society’s ‘constitution,’ while
‘constitutional law,’ as specied in the body of the constitution, is only ‘secondary to the fundamental
political decisions.’” (quoting C
ARL SCHMITT, CONSTITUTIONAL THEORY 77-79 (Jerey Seitzer
ed. and trans. 2008))).
68
Id. at 727.
69
See 1958 CONST. pmbl. (Fr.) (“Le peuple français proclame solennellement son attachement
aux Droits de l’homme et aux principes de la souveraineté nationale tels qu’ils ont été dénis par la
Déclaration de 1789, conrmée et complétée par le préambule de la Constitution de 1946 . . . .” (The
French nation solemnly proclaims her devotion to the Rights of Man and to the principles of
national sovereignty as dened in the Declaration of 1789 and supplemented by the preamble of the
Constitution of 1946 (author’s translation))). The preamble to the previous Constitution referred,
by contrast, to the Declaration of 1789 and to the principles embodied in French laws generally. 1946
C
ONST. pmbl. (Fr.).
2016] Preambles in Treaty Interpretation 1295
referenced in its preamble.
70
Similarly, in India, the Supreme Court ruled in
1973 not merely that the preamble “is part of the Constitution and enjoys
legal force,” but that it “constitute[s] the core of the constitution.”
71
The Court
did, however, stipulate that the preamble could not by itself be a source of
additional standalone rights.
72
Another, seemingly rarer form of substantive preamble draws its
substantive power from an explicit grant in the original drafting of the
constitution. In Nepal’s 1990 Constitution, the provision providing for
legislative enactment or constitutional amendment subjected proposed laws
to the condition that they not “prejudic[e] the spirit of the Preamble of this
Constitution.”
73
In other words, the Nepalese preamble was superior to the
Constitution it introduced; it could not be amended and acted as a rm limit
on amendments to the remainder of the Constitution. In an additional sign
of the importance of the preamble to the Constitution’s drafters, the article
establishing the supremacy of the preamble also expressly declared itself
immune from amendment.
74
The only way to supersede a Constitutional
preamble imbued with such power, therefore, was eectively to replace the
Constitution itself.
75
Orgad’s work and tripartite typology demonstrate that the full spectrum
of possible legal characters of preambles—from purely ceremonial to fully
substantive—is represented in the present context of national constitutions.
70
Orgad, supra note 53, at 727; see also Conseil constitutionnel [CC] [Constitutional Court]
decision No. 71-44DC, Jul. 16, 1971, Rec. 29 (Fr.) (citing the preamble of the Constitution as the
basis for concluding that freedom of association is a fundamental principle of the French Republic).
71
Orgad, supra note 53, at 728; see also Kesavananda Bharati v. State of Kerala, (1973) 4 SCC
225, ¶ 124 (India) (noting that the preamble to the Constitution is unlike other preambles, due to
its history and content; and ultimately concluding that “the Preamble of our Constitution is of
extreme importance and the Constitution should be read and interpreted in the light of the grand
and noble vision expressed in the Preamble”).
72
Orgad, supra note 53, at 728. Arguably, this stipulation places the Indian Constitution’s
preamble in the interpretive category. Id. Orgad recognizes this point, but argues that the frequency
and length of citations to the preamble “indicate a more substantive role of the Indian preamble in
constitutional interpretation.” Id.
73
NEPAL CONST. art. 116(1) (1990); see also Orgad, supra note 53, at 728 (describing the
Nepalese preamble as a “unique example of a substantive preamble”).
74
See NEPAL CONST. art. 116(1) (1990) (declaring that “this Article shall not be subject to
amendment”).
75
In fact, the 1990 Nepalese Constitution was replaced by an Interim Constitution in 2007,
which does not appear to confer such power upon its preamble, for reasons that are unclear. In
general, the Interim Constitution’s articles concerning constitutional amendment contain far less
detail in comparison to the 1990 Constitution. Compare 2007 C
ONST. pt. 21 (Nepal) (laying out the
mechanism for amendment with no reference to the Preamble), with 1990 C
ONST. art. 116 (Nepal)
(citing non-prejudice of the Preamble as a condition precedent for a proper amendment). This may
be due to the Constitution’s “temporary” nature. Michelle Higgins, As Political Unrest Eases, Travel
Picks Up, N.Y.
TIMES. (Mar. 4, 2007), http://www.nytimes.com/2007/03/04/travel/04prac. html?_r=0
[perma.cc/J77E-TMVL].
1296 University of Pennsylvania Law Review [Vol. 164: 1281
Returning to the treaty context, this fact is consequential because it disproves
the notion that international law prohibits preambles from possessing or
exercising substantive legal power;
76
rather, far from establishing such a
prohibition, international law seems to expressly allow substantive
preambles.
77
Indeed, there is historical evidence of treaties with preambles
that include obligations and substantive provisions governing interpretation
of the treaties’ operative terms.
78
Such drafting practices are uncommon,
however, and the question remains of what role is aorded to preambles by
customary international law as codied in the VCLT.
II. T
HE VCLT: TEXT AND CONTEXT, OBJECT AND PURPOSE
Whereas the preamble in a general and global sense can be demonstrated
to be subject to a variety of treatments, the question of the treaty preamble
should, in theory if not in practice, benefit from the standardization process
that has characterized international law in the past century. Of course, because
the basic instrument is the same, the inherent problems observed in domestic
contexts in Part II—notably, the diiculty of distinguishing the actual legal
power of a preamble from its potential power—can be expected to persist. Yet,
parties involved in negotiating, drafting, and interpreting treaties nevertheless
have an additional guide: the Vienna Convention on the Law of Treaties.
This Part will demonstrate that while the VCLT has not substantially
clarified preambles’ role in treaty interpretation, it leaves ample room for
preambles to exert legal power. An analysis of the general interpretive approach
76
Article 38 of the I.C.J. Statute enumerates the sources of international law. Statute of the
International Court of Justice art. 38 [hereinafter I.C.J. Statute]. Two of the sources refer to the
behavior of states: “international custom, as evidence of a general practice accepted as law,” id. art.
38(1)(b), and “the general principles of law recognized by civilized nations.” Id. art. 38(1)(c).
Therefore, if all states in their domestic laws expressed that preambles cannot have substantive legal
eect, such uniform practice could plausibly be deemed to create in international law a prohibition
on substantive preambles. As noted, however, such uniform practice is lacking.
77
Article 38 of the I.C.J. Statute names “international conventions” as its rst source of
international law. As preambles form part of the treaties they introduce, this article necessarily
includes them as a proper source of international legal rights and obligations. See infra note 85 and
accompanying text (noting that the VCLT denes preambles as part of a treaty’s text).
78
You describes dierent ways in which treaty preambles have been a source of legal
obligations and the debates they have engendered. For example, he notes that preambles may
incorporate an entire other treaty or legal instrument into the new treaty being introduced, with the
preamble thus becoming a source of obligations, albeit indirect ones. See Y
OU, supra note 12, at 42-
82. One additional and particularly interesting example can be found in the Martens Clause,
language originally included in the preamble of the 1899 Hague Convention regarding the Laws and
Customs of War on Land and which has subsequently achieved the status of jus cogens by repeated
iteration in the preambles of subsequent humanitarian treaties. See Jurisdictional Immunities of the
State (Ger. v. It.), Order on Counter-Claims, 2010 I.C.J. Rep. 310, 381-83, ¶¶ 136-139 (July 6)
(dissenting opinion of Cançado Trindade, J.) (describing the origins, evolutions, and current status
of the Martens Clause).
2016] Preambles in Treaty Interpretation 1297
embodied in the VCLT’s articles 31 and 32 suggests at first glance that treaty
preambles are afforded relatively important legal weight under text-and-
context analysis. In practice, however, additional factors—notably conventions
of treaty drafting and the historical association of preambles with object and
purpose—result in preambles most often being invoked under object-and-
purpose analysis, seemingly in contradiction to the text of article 31. This Part
argues that this seeming inconsistency can be reconciled by understanding the
VCLT’s holistic approach to treaty interpretation. This approach requires
focusing on the term in question but also inquiring into text and context and
object and purpose. It therefore effectively creates and authorizes a double
opportunity for preambles to enter into the interpretive process: once at the
text-and-context stage, and again at the object-and-purpose stage.
A. Articles 31-32 and the Textual Focus
At the most general level, the VCLT’s approach to treaty interpretation
in articles 31 and 32 mandates a focus on text.
79
Such a statement is necessarily
an oversimplication, as the International Law Commission (I.L.C.) drafted
the VCLT to provide a exible approach capable of accommodating variation
within certain limits.
80
Nevertheless, textual focus remains the general rule:
“A treaty shall be interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty . . . .”
81
This emphasis on text
is particularly important in the context of preambles because the VCLT
denes preambles as part of the text. The VCLT’s article 31, entitled “General
Rule of Interpretation,” reads as follows:
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.
2. The context for the purpose of the interpretation of a treaty shall comprise,
in addition to the text, including its preamble and annexes:
(a) Any agreement relating to the treaty which was made between all the
parties in connexion with the conclusion of the treaty;
79
See BROWNLIE, supra note 6, at 631 (“The Commission and the Institute of International
Law have taken the view that what matters is the intention of the parties as expressed in the text, which
is the best guide . . . .”).
80
See id. (noting that “[j]urists are in general cautious about formulating a code of ‘rules of
interpretation’” and that “[t]he International Law Commission in its work conned itself to
isolating” principles of treaty interpretation that had achieved the status of general acceptance);
Mortenson, supra note 18, at 822 (“The VCLT text is certainly capable of supporting dierent
interpretive approaches. That was, after all, the point.”).
81
VCLT, supra note 3, art. 31(1).
1298 University of Pennsylvania Law Review [Vol. 164: 1281
(b) Any instrument which was made by one or more parties in connexion
with the conclusion of the treaty and accepted by the other parties as an
instrument related to the treaty.
3. There shall be taken into account, together with the context:
(a) Any subsequent agreement between the parties regarding the
interpretation ofthe treaty or the application of its provisions;
(b) Any subsequent practice in the application of the treaty which establishes
the agreement of the parties regarding its interpretation;
(c) Any relevant rules of international law applicable in the relations between
the parties.
4. A special meaning shall be given to a term if it is established that the parties
so intended.
The VCLT’s textual approach thus contemplates and accommodates the
reference to multiple aspects of the treaty, some of which it places on equal
footing and others in a hierarchy. It does not advance a simple plain-meaning
rule;
82
rather, article 31’s “[g]eneral rule” mandates that the ordinary meaning
of any term be discovered holistically by examining “the terms of the treaty
in their context and in the light of its object and purpose.”
83
Interpretation of
a given term therefore requires that its language be considered in light of
these additional factors: the context, and the object and purpose. Meanwhile,
the VCLT relegates other resources—which it does not enumerate
comprehensively—to secondary status as “[s]upplementary means of
interpretation” under article 32.
84
Preambles, however, fall among the
primary interpretive resources of article 31, which stipulates that “[t]he
context for the purpose of the interpretation of a treaty shall comprise, in
addition to the text, including its preamble and annexes, [related agreements
between parties].”
85
Thus, the VCLT denes—almost in passing—the
preamble as part of the text, the main focus of its interpretive approach, and
an obligatory factor in the text-and-context analysis.
86
82
See BROWNLIE, supra note 6, at 633 (“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 . . . .”).
83
VCLT, supra note 3, art. 31(1).
84
Id. art. 32. Although article 32 remains somewhat vague with its reference to “supplementary
means,” it does specically situate travaux préparatoires and “the circumstances of [the treaty’s]
conclusion” among these means.
85
Id. art. 31(2) (emphasis added).
86
Commenting on VCLT article 31, the International Law Commission seemed to agree with
this analysis. See Report of the International Law Commission to the General Assembly, 21 U.N. GAOR
Supp. No. 9, at 221, U.N. Doc. A/6309/Rev.1 (1966), reprinted in [1966] 2 Y.B. Int’l L. Comm’n 169,
2016] Preambles in Treaty Interpretation 1299
By way of this denition, the VCLT appears to reserve for preambles a
relatively high position on the chain of interpretation. After all, the text is
the “presumptive object of interpretation”
87
under the VCLT’s general
approach. The potential consequence of including preambles in the text
becomes clear when compared, for example, to the U.S. law approach to
interpretation of domestic instruments, under which preambles are “no part
of the act.”
88
Whereas this approach means that American courts will have
recourse to the preamble only in the limited circumstance where there is
ambiguity in the operative provisions of the instrument being interpreted,
89
the VCLT’s inclusion of preambles in the treaty text arguably provides for
more frequent—and inuential—interpretations of preambles by tribunals
adhering to the VCLT’s approach. This is especially true given the VCLT’s
mandate that the text always be considered when analyzing the ordinary
meaning of a treaty term.
Another point of comparison leading to the same conclusion can be found
in the VCLT’s article 32. This article provides for relatively limited judicial
recourse to other “supplementary means of interpretation,” in particular the
travaux préparatoires.
90
While it has been suggested that the VCLT did not
intend to establish a strict hierarchy between these factors,
91
tribunals have in
effect read such a hierarchy into the VCLT’s articles 31 and 32 as drafted.
92
U.N. Doc. A/CN.4/191 [hereinafter “I.L.C. Report”] (“That the preamble forms part of a treaty for
purposes of interpretation is too well settled to require comment . . . .”).
87
Mortenson, supra note 18, at 785.
88
Yazoo & Miss. Valley R.R. Co. v. Thomas, 132 U.S. 174, 188 (1889) (emphasis added). See
supra Section I.A (providing an overview of the analytical approach in American law to preambles
in statutory, regulatory, and constitutional contexts).
89
See YULE KIM, CONG. RESEARCH SERV., 97-589, STATUTORY INTERPRETATION:
GENERAL PRINCIPLES AND RECENT TRENDS 32 (2008) (explaining that preambles can sometimes
help resolve ambiguity in enacted language).
90
See VCLT, supra note 3, art. 32 (“Recourse may be had to supplementary means of
interpretation, including the preparatory work of the treaty and the circumstances of its conclusion,
in order to conrm the meaning resulting from the application of article 31, or to determine the
meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or
obscure; or (b) leads to a result which is manifestly absurd or unreasonable.”).
91
See BROWNLIE, supra note 6, at 632 (noting that the International Law Commission felt that
the separate articles “should operate in conjunction, and would not have the eect of drawing a rigid
line between ‘supplementary’ and other means of interpretation”).
92
See generally id. (noting the International Law Commission’s rejection of a proposal to give
travaux a greater role and describing the Commission’s view that article 31 and 32 “should operate in
conjunction” although “[p]reparatory work [does] not have the same authentic character” as the
interpretive resources included in article 31); Criddle, supra note 3 (discussing the considerable
debate during the VCLT negotiations concerning the use of travaux and the proposition that travaux
be consulted alongside the text, and noting and providing possible explanations for the divergent
current practice that has developed). But see Panos Merkouris, “Third Party” Considerations and
“Corrective Interpretation” in the Interpretive Use of Travaux Préparatoires: Is It Fahrenheit 451 for
Preparatory Work? (noting the debate on travaux that occurred towards the end of the VCLT’s
1300 University of Pennsylvania Law Review [Vol. 164: 1281
Importantly, it is only with reference to these “supplementary means” that the
VCLT invokes the circumstance of ambiguity. The placement of ambiguity in
article 32 thus confirms that the VCLT envisions a role for preambles that is
substantially more prominent from that which they play, for example, in
American statutory or constitutional interpretation.
93
By situating preambles
as part of the text and thus among the first order of interpretive resources, the
VCLT clearly creates room for preambles to occupy a place at the substantive
extreme of the theoretical spectrum of legal power.
94
B. Preambles in Practice: Object and Purpose
Despite their status as part of treaty “text” under the VCLT, preambles
are more frequently cited as sources or evidence of a treaty’s “object and
purpose.” This association of preambles with statements of object and
purpose is practically universal, and arises from historical practices and
conventions of treaty drafting and interpretation. And the VCLT, by
codifying object-and-purpose analysis as a legitimate and mandatory
interpretive approach, has implicitly approved the practice of referring to
preambles in this context, despite only explicitly mentioning preambles in
connection with text-and-context analysis.
Virtually all those who engage in treaty interpretation today accept and
employ the object-and-purpose approach to preambles. This practice is
perhaps most notable among international tribunals.
95
Unsurprisingly, given
this fact, parties coming before such tribunals also frequently cite preambular
language to argue that a treaty’s object and purpose favors their cause.
96
This
drafting, the ultimate rejection of a “corrective” use of travaux, and arguing that travaux nevertheless
continue to have great importance in interpretation), in T
REATY INTERPRETATION, supra note 16,
at 75.
93
See supra Section I.A (demonstrating that in U.S. domestic interpretation, preambles’ role
in interpretation is limited to cases of ambiguity in the operative terms of the instrument being
interpreted).
94
See supra Part I.
95
See, e.g., Romak SA v. Uzb., Case No. AA280, Award, ¶ 181 (Perm. Ct. Arb. 2009),
http://www.pcacases.com/web/sendAttach/491 [perma.cc/4T5Y-4JDL] (“The [bilateral investment
treaty]’s object and purpose is reected in its preamble . . . .”); Appellate Body Report, United
States—Import Prohibition of Certain Shrimp and Shrimp Products, ¶ 12, WTO Doc. WT/DS58/AB/R
(adopted Oct. 12, 1998) (“An environmental purpose is fundamental to the application of Article
XX, and such a purpose cannot be ignored, especially since the preamble to the [WTO Agreement]
. . . acknowledges that the rules of trade should be in accordance with the objective of sustainable
development, and should seek to protect and preserve the environment.” (emphasis added) (citations
omitted)).
96
See, e.g., Canadian Cattlemen for Fair Trade v. United States, UNCITRAL ad hoc, Award
on Jurisdiction, ¶¶ 81-82 (Jan. 28, 2008), http://www.state.gov/documents/organization/99954.pdf
[https://perma.cc/8D7A-G9DL] (noting respondents’ argument that the NAFTA preamble must be
2016] Preambles in Treaty Interpretation 1301
general disposition towards the object-and-purpose approach extends even to
the domestic courts of the United States,
97
which do not necessarily adhere
to the VCLT or its interpretive methods when engaging in treaty
interpretation.
98
Finally, international law commentators writing about the
VCLT’s interpretive regime also exhibit a clear association of preambles with
object and purpose.
99
The prevalence of the object-and-purpose approach to treaty preambles has
its basis in time-honored treaty-drafting traditions and interpretive approaches.
Perhaps the simplest explanation arises from the general convention in treaty-
drafting of using the preamble to state explicitly the object and purpose of the
treaty.
100
When a preamble conforms to this convention by including such
explicit statements, it becomes a natural first point of reference for any actor
seeking to interpret a given treaty term under the VCLT’s approach.
Similarly, the object-and-purpose approach may be explained as a
continuation of historical interpretive practice, itself armed by the VCLT.
This historical practice is merely a past instance of the same judicial response
considered in determining NAFTA’s object and purpose and their attack on claimant’s argument
because it did not refer to the NAFTA preamble at all).
97
In Abbott v. Abbott, the U.S. Supreme Court relied heavily on a treaty preamble for
indications of object and purpose, which was a crucial factor in the Court’s decision. 560 U.S. 1, 11
(2010); see also, e.g., United States v. Nai Fook Li, 206 F.3d 56, 65 (1st Cir. 2000) (using the preamble
to the Vienna Convention on Consular Relations as a statement of the object and purpose of the
treaty and its subsequent provisions).
98
While the Supreme Court has been criticized for its historically “nationalist” approach to treaty
interpretation, Abbott has been cited as a sign of the Court’s realignment with international standards
of treaty interpretation as set forth by the VCLT. Compare Criddle, supra note 3 (detailing the Supreme
Court’s nationalist stance on treaty interpretation and arguing for a realignment with internationalist
approaches consistent with the VCLT), with Molly K. Madden, Comment, Abbott v. Abbott: Reviving
Good Faith and Rejecting Ambiguity in Treaty Jurisprudence, 71 M
D. L. REV. 575 (2012) (arguing that Abbott
represents both the Court’s shift away from strict textual interpretations that risked sanctioning, under
domestic law, conduct by the United States that would breach its international obligations, and the
Court’s return to treaty interpretation canons in line with the VCLT’s particular text-based approach).
Some lower U.S. courts, by contrast, do explicitly adhere to the VCLT. See Fujitsu Ltd. v. Fed. Express
Corp., 247 F.3d 423, 433 (2d Cir. 2001) (“[W]e rely upon the Vienna Convention here as an authoritative
guide to the customary international law of treaties.”). But see Criddle, supra note 3, at 434 & n.16 (“A
[2004] Westlaw search finds that Articles 31-33 of the VCLT have been cited only thirteen times by
U.S. federal courts and two times by state courts.”).
99
See GARDINER, supra note 13, at 186 (“By stating the aims and objectives of a treaty, as
preambles often do in general terms, preambles can help in identifying the object and purpose of
the treaty.”); Dörr, supra note 13, at 544 (“The preamble to a treaty, usually consisting of a set of
recitals, may assist in determining the object and purpose of a treaty . . . .”).
100
See GARDINER, supra note 13, at 186 (noting that the preamble’s most common form is “a
set of recitals” that “commonly include motivation, aims and considerations which are stated as
having played a part in drawing up the treaty”); see also, e.g., WTO Agreement, supra note 8, pmbl.
(mentioning explicitly the “objective of sustainable development”); VCLT, supra note 3, pmbl. (“the
codication and progressive development of the law of treaties achieved in the present Convention
will promote the purposes of the United Nations set forth in the Charter” (emphasis added)).
1302 University of Pennsylvania Law Review [Vol. 164: 1281
to the aforementioned treaty-drafting conventions. Long before the VCLT
was concluded, it was already common practice for treaty drafters to use the
preamble to state the circumstances motivating the conclusion of the treaty
or the problems it aimed to resolve.
101
This usage also corresponded to the
general conception of preambles and their legal utility in nontreaty
contexts.
102
It was thus natural for tribunals to turn to treaty preambles for
statements of object and purpose to guide their interpretive process.
103
When the I.L.C. drafted the VCLT, its aim was not to reinvent the wheel
but rather to codify generally accepted principles in treaty practice and
interpretation.
104
Thus, article 31’s reference to object and purpose as a
mandatory consideration when interpreting treaty terms appears to ratify and
extend the longstanding practice of examining the preamble for signs of
object and purpose. This ratication is not specic to preambles, as evidenced
by the article’s sole mention of preambles as part of the treaty text. Rather, it
is a ratication of the general object-and-purpose analytical approach, in
which preambles have traditionally played a particularly prominent role. In
other words, encouraged by the VCLT, tribunals that turn to the preamble
for object-and-purpose analysis may simply be engaging in an intuitive
101
See YOU, supra note 12, at 30-39 (observing that many treaties’ preambles include statements
of motivating circumstances, common interests, and objects and purposes that led to the agreement,
and providing examples of such treaties mainly from the eighteenth through the early twentieth
centuries); see also, e.g., Treaty of Amity, Commerce, and Navigation, supra note 11, pmbl. (stating
that the United States and Britain entered into the treaty “to produce mutual satisfaction and good
understanding: And also to regulate the Commerce and Navigation between Their respective
Countries, Territories and People, in such a manner as to render the same reciprocally benecial and
satisfactory”); Treaty of Westphalia, supra note 11, pmbl. (describing that “on the one side, and the
other, they have form’d Thoughts of an universal Peace. And for this purpose, by a mutual Agreement
and Covenant” ambassadors met and the treaty was concluded).
102
For an example of a denition of preambles in existence long before the VCLT was
concluded, see, e.g., Preamble, B
LACK’S LAW DICTIONARY (2d ed. 1910) (dening the preamble as
“a clause at the beginning of a constitution or statute explanatory of the reasons for its enactment
and the objects sought to be accomplished”).
103
See YOU, supra note 12, at 34-35 (observing that, decades before the VCLT was drafted,
jurists would often have recourse to object and purpose when interpreting treaties, and that
tribunals’ general practice was to reject any interpretation of a treaty term that would be contrary
to an object easily deducible from preambular language); see also, e.g., Rights of Nationals of the
United States of America in Morocco (Fr. v. U.S.), Judgment, 1952 I.C.J. Rep. 176, 197 (Aug. 27)
(stipulating that any interpretation of the General Act of Algeciras, a 1906 treaty, “must take into
account its purposes, which are set forth in the Preamble”); Competence of the International Labour
Organization in Regard to International Regulation of the Conditions of the Labour of Persons
Employed in Agriculture, Advisory Opinion, 1922 P.C.I.J. (ser. B) No. 2, at 9, 25-27 (Aug. 12)
(relying on the comprehensive scope of the preamble to Part XIII of the Treaty of Versailles, and a
later reference to the “promotion of the objects set forth in the preamble,” to hold that the
International Labour Organization could regulate agricultural workers).
104
See Criddle, supra note 3, at 446 (explaining that the I.L.C.’s goal was to “isolate ‘the
comparatively general principles which appear to constitute general rules for the interpretation of
treaties’” (citing I
AN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 624 (2d ed. 1973))).
2016] Preambles in Treaty Interpretation 1303
interpretive practice that has worked in the past, is familiar to them, and
reects general conventions of treaty drafting.
C. Reconciling the Text-and-Context and Object-and-Purpose Approaches
The confusing juxtaposition of the VCLT’s inclusion of the preamble in
text and context and the longstanding practice of employing preambles as
evidence of object and purpose raises several questions. Are the
text-and-context and object-and-purpose approaches to preambles mutually
exclusive, or can they be reconciled? Are they substantially dierent in their
application and the amount of legal weight they aord to preambles? What
did the I.L.C. intend by specically mentioning preambles as part of the text
and context of the treaty, as opposed to the object and purpose? Does
tribunals’ preference for object-and-purpose references to preambles
constitute a failure to adhere to the VCLT’s approach? Because the VCLT
intended to allow sucient exibility for treaty interpreters to choose the
precise method that best suits the circumstances and document before
them,
105
some of these questions may have no denitive answer.
106
Nevertheless, a brief investigation into the drafting of the VCLT and a closer
inspection of its structure reveal that these two approaches are not in
contradiction, but rather create multiple opportunities for preambles to
inuence treaty interpretation.
Of the two approaches, the text-and-context treatment of preambles
remains the more obscure when compared with the well-established object-
and-purpose approach. What did the I.L.C. intend by dening preambles as
part of the text and context of a treaty? It is perhaps easiest to approach this
question by understanding what this denition does not do. Specically,
although the VCLT’s general “textual” approach may suggest otherwise,
107
there is no indication that the I.L.C. intended to radically alter the
importance of preambles—by, for example, universally imbuing them with
substantive legal weight—in dening them as part of the treaty text. On the
contrary, it appears that there was little discussion or debate about this
element of article 31 during the drafting of the VCLT.
108
The ocial records
105
See supra note 80 and accompanying text.
106
See Jean Galbraith, Book Review, 108 AM. J. INT’L L. 859, 861 (2014) (reviewing THE OXFORD
GUIDE TO TREATIES (Duncan B. Hollis ed. 2012)) (proposing that the VCLT’s general flexibility “makes
it both relatively easy for states to comply with the VCLT and relatively difficult to measure how effective
the VCLT is in terms of actually changing state behavior” and that, specifically regarding its approach to
interpretation, its articles 31 and 32 “leave considerable room for maneuvering”).
107
See I.L.C. Report, supra note 86, at 220 (“[Article 31] is based on the view that the text must
be presumed to be the authentic expression of the intentions of the parties . . . . The Institute of
International Law adopted this—the textual—approach to treaty interpretation.”).
108
See generally id. (providing commentary to the draft of article 31, which at the time was article 27).
1304 University of Pennsylvania Law Review [Vol. 164: 1281
of the I.L.C.’s drafting conference note that the fact that “the preamble forms
part of a treaty for purposes of interpretation is too well settled to require
comment.”
109
At one level, therefore, its explicit inclusion as part of the text
serves rst and foremost to forestall any attempts to exclude the preamble
from the interpretive process. Rather, the preamble is a mandatory factor in
interpretation,
110
although the eect of this command will, of course, depend
on the content of the particular preamble being examined.
111
In other words,
the text-and-context approach primarily seeks to ensure that preambles will
be given the appropriate interpretive weight in light of their drafting, which
requires that they be examined in the rst place.
This point underscores the conclusion that the text-and-context and
object-and-purpose approaches are not mutually exclusive, contradictory, or
even intended to be in competition. On this note, the VCLT drafting
conference records establish what the text of article 31 does not: a preamble
may be relevant to both the text-and-context and object-and-purpose
inquiries. Indeed, immediately before noting the “well settled” status of
preambles as “part of the treaty,” the records state that “the [Permanent Court
of International Justice and the International Court of Justice have] more than
once had recourse to the statement of the object and purpose of the treaty in
the preamble in order to interpret a particular provision.”
112
These two
statements, and their close proximity in the context of a discussion of
established practices that the VCLT drafters intended to codify, help to shed
light on article 31’s vision for preambles in treaty interpretation.
This vision consists of two propositions. First, interpretation of any treaty
term always requires an examination of the preamble as part of the holistic
text-and-context approach. Second, interpretation of a term always requires
an inquiry into the object and purpose of the treaty, which itself may require
an examination of the preamble, but also allows reference to statements of
object and purpose in other treaty elements.
113
Article 31’s formulation of two
109
Id. at 221.
110
See id. (noting that the VCLT intended to codify the consistent practices of the I.C.J. and
P.C.I.J., which had established long before that “the context is not merely the article or section of
the treaty in which the term [being interpreted] occurs, but the treaty as a whole”).
111
See, e.g., YOU, supra note 12, at 67-81 (providing examples of treaties from the late nineteenth
and early twentieth centuries whose preambles’ relatively substantive language led to their increased
importance in interpretations of those treaties); Suy, supra note 14, at 260-61 (positing that while, in
general, the presence of a commitment in the preamble often denotes lesser importance, this is not
a universal rule and will depend on the treaty in question).
112
I.L.C. Report, supra note 86, at 221 (emphasis added).
113
Some treaties are drafted with separate provisions that explicitly dene their object and
purpose as such. See, e.g., TRIPS: Agreement on Trade-Related Aspects of Intellectual Property
Rights arts. 7-8, Apr. 15, 1994, 1869 U.N.T.S. 299 (setting forth “Objectives” and “Principles” in
separate provisions); see also G
ARDINER, supra note 13, at 192 (“One of the commonly mentioned
sources of guidance on the object and purpose of a treaty is its preamble. However, in keeping with
2016] Preambles in Treaty Interpretation 1305
dierent, obligatory inquiries thus serves the VCLT’s goal of establishing an
interpretive method that is exible enough for tribunals to give a preamble
its proper weight.
Most crucially, the VCLT’s dual approach creates ample space for
preambles to exert considerable legal force. In keeping with its overall
exibility, the two inquiries taken together do not necessarily limit
preambles’ potential legal power. The text-and-context inquiry imposes no
inherent limit, tying the legal weight of the preamble to the preamble’s actual
content as drafted. The preamble is part of both the text and the rst order
of interpretive resources, and therefore any restraints on its power must arise
from the drafters’ conscious decisions in employing and drafting the legal
instrument (or an interpreting body’s perceptions of those decisions, based
on the preamble’s content as drafted). By contrast, the weight that preambles
may enjoy in the object-and-purpose inquiry, as Part III examines, is a source
of current debate and contention. But because an object-and-purpose
approach constitutes—or should constitute—a second pass at the preamble,
even a limited conception of the power of object-and-purpose does not, in
theory, deprive the preamble of its legal power as an integral part of the treaty.
III. E
XPANSIVE 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’
the approach of the Vienna rules generally . . . it is the whole text . . . which is to be taken into
account . . . . Some treaties have provisions in their substantive articles specically listing the
treaty’s object and purpose.”).
114
See GARDINER, supra note 13, at 186 (“The recitals in the preamble are not the appropriate
place for stating obligations, which are usually in operative articles of the treaty or in annexes.”); see
also Sir Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice 1951-4: Treaty
Interpretation and Other Treaty Points, 33 B
RIT. Y.B. INT’L L. 203, 227 (1957) (noting the I.C.J.’s stance
that “the preamble [does] not normally, and strictly ought not, to [sic] contain substantive
provisions”). This is not, however, a rm rule. The United Nations Convention on International
Multimodal Transport of Goods serves as both an example of an exception—containing multiple
detailed obligations in its preamble—and perhaps as evidence of the disapproval of such exceptions,
having never entered into force due to having never received the required thirty signatures or
ratications. See pmbl., May 24, 1980, 19 I.L.M. 938 (laying out in the preamble, inter alia, the basis
for liability of multimodal transport operators, and the obligation to conduct pre- and
post-transportation consultation on terms and conditions of service); id. art. 36(1) (“This
1306 University of Pennsylvania Law Review [Vol. 164: 1281
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
Convention shall enter into force 12 months after the Governments of 30 States have either signed
[or ratied it] . . . .”); United Nations Convention on International Multimodal Transport of Goods,
U
NITED NATIONS TREATY COLLECTION, https://treaties.un.org/Pages/ViewDetails.aspx?src=
TREATY&mtdsg_no=XI-E-1&chapter=11&lang=en [https://perma.cc/4AVJ-R9LF] (last updated
Mar. 19, 2016) (listing the thirteen countries that have signed or ratied the treaty).
115
Some have argued that not all treaty preambles are of equal importance, due to varying
levels of attention and negotiation involved in drafting them. See G
ARDINER, supra note 13, at 186
(“It should not, however, be assumed that all preambles are of equal value. Some are very carefully
negotiated, others cobbled together more or less as an afterthought.”); see also Suy, supra note 14, at
255-56 (noting that preambles in bilateral treaties are generally shorter and use standardized
language, therefore being less helpful in treaty interpretation than preambles in multilateral treaties,
which are longer, more detailed, and subject to more extensive negotiation).
116
For example, the I.C.J.’s decision in Sovereignty over Pulau Ligitan and Pulau Sipadan,
discussed infra, refers to the preamble of the relevant treaty only in its discussion of object and
purpose, not in its discussion of text and context. See (Indon. v. Malay.), Judgment, 2002 I.C.J. 625,
645-53 ¶¶ 37-52 (Dec. 17) (invoking VCLT article 31 and applying it to the relevant provision of the
treaty). Various factors may help explain this and other similar cases, including the arguments put
forth by the parties and the tribunal’s view of the specic preambles’ content and its eects. See
supra note 111 and accompanying text (noting that despite the mandatory requirement to refer to the
preamble in text-and-context analysis, the results of this exercise will depend on the preamble’s
content). Nevertheless, tribunals in other contexts have similarly invoked preambles only in light of
object and purpose. In CMS Gas, also discussed infra, the ICSID tribunal referred to the preamble
only once in its decision and did so to interpret the “objective of the protection envisaged” by the
relevant treaty, making no reference to text-and-context analysis. CMS Gas Transmission Co. v.
Arg. Republic, ICSID Case No. ARB/01/8, Award, ¶ 274 (May 12, 2005), 14 ICSID Rep. 152 (2009).
This “preference” for object-and-purpose application of preambles may have historical origins. See
supra notes 99–103 and accompanying text; see also Rights of Nationals of the United States of
America in Morocco (Fr. v. U.S.), Judgment, 1952 I.C.J. Rep. 176, 197-98 (Aug. 27) (citing, decades
before the VCLT was concluded, a preamble to discuss the parties’ “purposes” and “intention[s]”).
117
See GARDINER, supra note 13 at 190 & n.155 (“[T]he precise nature, role, and application of
the concept of ‘object and purpose’ in the law of treaties present some uncertainty and it has been
described . . . as an ‘enigma.’” (citing I. Buard and K. Zemanek, The “Object and Purpose” of a Treaty:
An Enigma?, 3 A
USTRIAN REV. INT’L & EURO. L. 311 (1998))).
118
See GARDINER, supra note 13, at 186 (noting that preambles may “impose interpretive
commitments” that exclude otherwise possible interpretations of a treaty term where those
interpretations would run counter to such commitments); id. at 197-98 (discussing cases in which
statements of object and purpose suggesting broad jurisdiction were held not to “stretch jurisdiction
beyond that specically conferred” by treaty parties).
2016] Preambles in Treaty Interpretation 1307
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
—eectively an expansive or positive power. An examination of
judgments in the specic 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.
A. 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 rst 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 specic sub-treaty at issue,
but to all other agreements falling under the umbrella of the WTO. By way
of this extension, the decision eectively amplied 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
119
See Suy, supra note 14, at 261-62 (“[L]a question sera notamment de savoir si le préambule
peut mener à élargir la portée du dispositif.” ([T]he question will notably be whether the preamble
can lead to the expansion of the reach of operative provisions. (author’s translation))).
120
Appellate Body Report, United States—Import Prohibition of Certain Shrimp and Shrimp
Products, ¶ 12, WTO Doc. WT/DS58/AB/R (adopted Oct. 12, 1998).
121
See id. ¶¶ 1-8 (describing in greater detail the regulations and policies at issue and the
procedural history of the dispute).
122
See General Agreement on Taris and Trade 1994 art. XI, Apr. 15, 1994, 1867 U.N.T.S. 187
[hereinafter GATT 1994] (“No prohibitions or restrictions other than duties, taxes or other charges
1308 University of Pennsylvania Law Review [Vol. 164: 1281
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 qualied under the exception for trade restrictions
. . . shall be instituted or maintained by any contracting party on the importation of any product of
the territory of any other contracting party or on the exportation or sale for export of any product
destined for the territory of any other contracting party.”).
123
See United States—Import Prohibition of Certain Shrimp and Shrimp Products, ¶ 7, WTO Doc.
WT/DS58/AB/R (quoting the ndings of the initial panel). A Most Favored Nation standard
essentially imposes an obligation to treat all other parties—in this context, all other nations party to
the WTO Agreement—equally.
124
See id. ¶ 8 (“[T]he United States notied [the Dispute Settlement Body] of its intention to
appeal certain issues of law and legal interpretations developed by the Panel . . . .”); id. ¶ 10
(describing the U.S. challenge to the Panel’s ruling on the question of the scope of article XX).
125
See WTO Agreement, supra note 8, art. II(2) (“The agreements and associated legal
instruments included in Annexes 1, 2 and 3 . . . are integral parts of this Agreement, binding on all
Members.”); id. Annexes 1-3 (listing the separate agreements that, by way of the WTO Agreement’s
article II(2), form part of that agreement).
126
See generally GATT 1994, supra note 122.
127
See General Agreement on Taris and Trade 1947 art. XX, Oct. 30, 1947, 61 Stat. A-11, 55
U.N.T.S. 194 [hereinafter GATT 1947] (enumerating the exceptions to the stated obligations in the
agreement).
128
The chapeau reads,
Subject to the requirement that such measures are not applied in a manner which
would constitute a means of arbitrary or unjustiable discrimination between
countries where the same conditions prevail, or a disguised restriction on international
trade, nothing in this Agreement shall be construed to prevent the adoption or
enforcement by any contracting party of measures . . . .
Id.
2016] Preambles in Treaty Interpretation 1309
“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 unjustiable 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 purpose.
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 rst 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 conicted with
the chapeau and before considering the specic 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 fty 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
129
Id. art. XX(g).
130
See United States—Import Prohibition of Certain Shrimp and Shrimp Products, ¶ 111, WTO Doc.
WT/DS58/AB/R (generally describing the requirement of equal treatment of countries under the
chapeau); see also GATT 1947, supra note 127, art. XX (detailing the relevant chapeau and enumerated
exception language).
131
See United States—Import Prohibition of Certain Shrimp and Shrimp Products, ¶¶ 114-125, WTO
Doc. WT/DS58/AB/R (criticizing and correcting the Panel’s approach to treaty interpretation).
132
Id. ¶ 114.
133
Id. ¶ 127.
134
See id. ¶ 128 (“One lesson that modern biological sciences teach us is that living species,
though in principle, capable of reproduction and, in that sense, ‘renewable’, are in certain
circumstances indeed susceptible of depletion, exhaustion and extinction, frequently because of
human activities.”).
135
Id. ¶ 129.
1310 University of Pennsylvania Law Review [Vol. 164: 1281
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 eectively 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
rst 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 unjustiable discrimination between countries.”
138
The Body cited
precedent establishing that the chapeau itself intended to prevent abuse of the
specic 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 reects 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, “justiable”
for the purposes of the article XX chapeau.
141
Notably, the Body oered a supplementary argument in support of its use
of the preamble in interpreting the chapeau. Specically, 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
136
Id.
137
See id. ¶ 131 (“[R]ecalling the explicit recognition by WTO Members of the objective of
sustainable development in the preamble of the WTO Agreement, we believe it is too late in the day
to suppose that Article XX(g) of the GATT 1994 may be read as referring only to the conservation
of exhaustible mineral or other non-living natural resources.”).
138
See id. ¶ 147 (citing WTO Agreement, supra note 8).
139
Id. ¶¶ 150-155.
140
Id. ¶¶ 152-153.
141
See id. ¶¶ 156-160 (describing the balancing test imposed by Article XX and its chapeau).
2016] Preambles in Treaty Interpretation 1311
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 world’s resources in accordance with the
objective of sustainable development.”
143
This change in preamble language
appears to have been inuential in the Appellate Body’s reliance on the WTO
Agreement’s preamble in determining “the rights and obligations of Members
under the WTO Agreement, generally.”
144
The Appellate Body’s analytical approach in U.S. Shrimp–Turtle serves,
therefore, as an example of the potency of object-and-purpose analysis
generally and, in addition, of a tribunal giving great weight to a treaty
preamble in the context of that analysis. Moreover, the decision is particularly
signicant not only because it uses the preamble to justify an expansive
reading of the plain language of a term, but also because of its broad scope
and reach. As one commentator notes, “The WTO Agreement’s preamble
and its reference to the sustainable development objective informs [sic] not
only the appropriate understanding of GATT provisions, but the
interpretation of all other agreements annexed to the WTO Agreement.”
145
Finally, the decision’s use of the preamble is particularly notable in light
of the Appellate Body’s emphasis on conducting a proper interpretation
under article 31 of the VCLT. The Body took great pains to critically
deconstruct the lower Panel’s analytical approach and to provide a detailed
explanation of (what it views as) the correct method of interpretation.
146
Of
course, the Body is by no means the ultimate authority on treaty
interpretation under the VCLT; but it is an indisputably important
authority.
147
In light of its focus on proper interpretive procedure, the Body’s
detailed analysis combined with its evident willingness to use the WTO
Agreement’s preamble to great interpretive eect lends credence to the
142
Id. ¶¶ 152-153.
143
See id. ¶ 152 (comparing GATT 1947, supra note 127, pmbl., with WTO Agreement, supra
note 8, pmbl.).
144
Id. ¶ 155.
145
Henning Grosse Ruse-Kahn, The (Non) Use of Treaty Object and Purpose in Intellectual
Property Disputes in the WTO 11 (Max Planck Institute for Intellectual Property & Competition Law,
Research Paper No. 11-15, 2011), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1939859
[http://perma.cc/BL6S-3QA8].
146
See United States—Import Prohibition of Certain Shrimp and Shrimp Products, ¶¶ 112-122, WTO
Doc. WT/DS58/AB/R (criticizing the Panel’s interpretation in detail, noting the origins of its errors,
and outlining the correct interpretive approach under VCLT article 31).
147
The Appellate Body consists of seven members, each “required to be a person of recognized
authority, with demonstrated expertise in law, international trade and the subject-matter of the
covered agreements generally.” Appellate Body Members, W
ORLD TRADE ORG., http://www.wto.org/
english/tratop_e/dispu_e/ab_members_descrp_e.htm [http://perma.cc/F3CR-CLPD] (last visited
Mar. 19, 2016).
1312 University of Pennsylvania Law Review [Vol. 164: 1281
notion that preambles may exert considerable legal force even under an
object-and-purpose analysis.
B. Investment Treaty Preambles and Fair and Equitable Treatment
The expanding world of investment arbitration is another notable area in
which treaty preambles currently play an important—and controversial—role
in treaty interpretation. In roughly the past decade, several tribunals deciding
disputes arising under bilateral investment treaties (BITs) have relied on
language in BIT preambles to read broad, investor-friendly principles into
the standard of “fair and equitable treatment” (FET) commonly included in
these treaties. These decisions have come arguably at the expense of states’
ability to pursue their own interests and to respond to external and internal
circumstances through changes in law. Far from being universally accepted,
these rulings have provoked staunch criticism of what is perceived as
overreliance on preamble terms during object-and-purpose analysis. Despite
the debate concerning the validity of these tribunals’ findings, they
nevertheless serve as an example of preambles being used to decisive effect by
international tribunals under the auspices of the VCLT’s interpretive approach.
1. From Preambles, Broad Investor-Friendly Rules
This application of preambles occurs during disputes that have arisen from
alleged breaches by sovereign host states of commitments they have made to
investors by way of treaties concluded with the investors’ home states. States
can, of course, breach investor commitments in a variety of ways, including
through acts available to any contracting party—such as nonpayment—that
may fall outside the scope of treaty obligations. But states can also breach
investor commitments through acts uniquely available to sovereign states,
which are often the subject of investment treaties.
148
These sovereign-only
breaches may occur when a state intentionally targets a specific investor, for
example, by expropriating its property, or when a state makes changes to its
legislation or regulations that catch investors in the widely cast net of their
general application.
149
It is in this latter category of sovereign-only breaches
that preambles have played a particularly important role.
148
See Lise Johnson & Oleksandr Volkov, Investor–State Contracts, Host-State “Commitments”
and the Myth of Stability in International Law, 24 A
M. REV. INT’L ARB. 361, 366-75 (2013) (providing
a general overview of the ways in which states can breach contractual commitments made to
investors and the consequences for each type of breach).
149
See id. at 363 (“If a measure of general applicability negatively impacts performance of an
investor-state contract, the question arises of who should bear the burden of those losses; and the answer
to that question has crucial implications for governmental policy design and implementation.”).
2016] Preambles in Treaty Interpretation 1313
Whereas domestic resolution of claims by investors arising from sovereign
actions in the absence of an investment treaty traditionally involves a high level
of deference to the sovereign actor and its authority, international investment
tribunals have used treaty language—notably in preambles—to find rules
favoring the investor.
150
These outcomes have not been uniform, and it is
important not to overstate the inherently investor-friendly nature of
investment arbitration.
151
Nevertheless, in the line of decisions in which
tribunals have arrived at such rules, states have been held liable for their actions
even where the effects on the investor arguably were indirect and resulted from
general policy changes traditionally associated with sovereign prerogative.
152
As
a result, critics in recent years have questioned the findings of these tribunals,
and also the wisdom and validity of the BIT regime in general.
153
150
See id. at 406-14 (contrasting the longstanding sovereign-friendly policies of U.S. courts in
resolving such disputes with the investor-friendly ndings in the relatively new context of
international investment tribunals).
151
For example, ICSID tribunals either rejected jurisdiction or dismissed all claims in over
half of the cases decided in 2014. I
NT’L CTR. FOR THE SETTLEMENT OF INV. DISPUTES, THE
ICSID CASELOAD—STATISTICS (ISSUE 2015-1) 14 (2015), https://icsid.worldbank.org/apps/ICSID
WEB/resources/Documents/ICSID%20Web%20Stats%202015-1%20(English)%20(2)_Redacted.pdf
[https://perma.cc/E7A6-J7WW]. Investment arbitration outcomes also depend heavily on the
underlying treaties, which inuence the extent to which a dispute-specic legal regime is investor-
friendly. Tribunals that agree with investor-friendly rules applied in other disputes have declined to
apply those same rules in disputes where the relevant treaty texts do not support doing so. See infra
note 191 and accompanying text. States have also begun to make treaty-based investor protections
less broad, often by including language limiting those protections’ ability to supersede state
legislative and regulatory capacities. See infra notes 196–203 and accompanying text. Such changes
should presumably produce outcomes more deferential to states. These developments underscore
the fact that states, at least in theory, exert considerable control over the extent to which investment
arbitration is investor- or state-friendly.
152
See Johnson & Volkov, supra note 148, at 406-14 (describing generally the divergences
between U.S. courts’ and international investment tribunals’ approaches to such issues and noting
tribunals’ “more lenient view of the requirements necessary to establish and enforce a government
promise not to exercise sovereign authority in the future”); see also Manuel Pérez-Rocha, When
Corporations Sue Governments, N.Y.
TIMES (Dec. 3, 2014), http://www.nytimes.com/
2014/12/04/opinion/when-corporations-sue-governments.html [https://perma.cc/6GFF-AC4E]
(“[C]orporations are increasingly using investment and trade agreements—specically, the investor-
state dispute settlement provisions in them—to bring opportunistic cases in arbitral courts,
circumventing decisions states deem in their best interest.”).
153
See J. ROMESH WEERAMANTRY, TREATY INTERPRETATION IN INVESTMENT
ARBITRATION 191 (2012) (“Interpretations giving signicant weight to the object and purpose of
investment treaties have been criticized as favouring investors to the detriment of host States.”);
Johnson & Volkov, supra note 148, at 365 (questioning “whether tribunals’ decisions are exceeding
maximum thresholds of private protections and restraints on state conduct”); Pérez-Rocha, supra
note 152 (“The investor-state dispute settlement mechanism is like playing soccer on half the eld.
Corporations are free to sue, and nations must defend themselves at enormous cost—and the best a
government can hope for is a scoreless game.”); Elizabeth Warren, The Trans-Pacic Partnership
Clause Everyone Should Oppose, W
ASH. POST (Feb. 25, 2015), https://www.washingtonpost.com/
opinions/kill-the-dispute-settlement-language-in-the-trans-pacific-partnership/2015/02/25/ec7705a2-
bd1e-11e4-b274-e5209a3bc9a9_story.html [https://perma.cc/PPX4-HL86] (calling for opposition to
1314 University of Pennsylvania Law Review [Vol. 164: 1281
Many of these decisions and the resulting criticism have arisen from
tribunals’ use of preambles to interpret FET standards. BITs usually contain
a provision obliging the signatory states to adhere to FET, but commonly fail
to provide an explicit denition of what the FET standard entails.
154
Claims
of state violations of the FET standard have frequently been asserted by
investors whose activities have suered due to generally applicable changes
in the laws or regulations of the nation in which they operate, for example in
Argentina after its nancial crisis at the dawn of the twenty-rst century.
155
Underlying these claims is a legal theory that FET requires treatment in line
with investors’ reasonable expectations when initially making their
investment, formed in reliance on the legal landscape of the country at that
moment in time.
156
Tribunals tasked with adjudicating these claims may nd
themselves faced with the question of whether FET constrains nations’
ability to implement changes to their laws that are generally applicable and
respond to events endangering the public welfare, but which in the process
negatively aect foreign investments.
157
It is in answering this question that international arbitration tribunals have
invoked BIT preambles, imbuing them with decisive and expansive legal weight
in the process. The vagueness of the FET standard included in many BITs
generally leads tribunals to invoke the VCLT’s articles on treaty interpretation
an agreement because of its Investor–State Dispute Settlement clause, which “would undermine
U.S. sovereignty” by “allow[ing] foreign companies to challenge U.S. laws . . . without ever stepping
foot in a U.S. court”).
154
See, e.g., Treaty Concerning the Reciprocal Encouragement and Protection of Investment,
U.S.–Arg., Nov. 14, 1991, S.
TREATY DOC. NO. 103-2 (1993), 31 I.L.M. 128 [hereinafter U.S.–Arg.
BIT] (providing simply that “[i]nvestment shall at all times be accorded fair and equitable treatment,
shall enjoy full protection and security and shall in no case be accorded treatment less than that
required by international law”).
155
See, e.g., CMS Gas Transmission Co. v. Arg. Republic, ICSID Case No. ARB/01/8, Award,
¶ 88 (May 12, 2005), 14 ICSID Rep. 152 (2009) (describing the claimant’s allegation that Argentina
“failed to treat [its] investment in accordance with the standard of fair and equitable treatment” of the
relevant BIT treaty); id. ¶¶ 59-67 (describing the measures taken by Argentina, including the freezing
of tariffs and the “corralito . . . drastically limiting the right to withdraw deposits from bank accounts”).
156
See, e.g., id. ¶ 267 (“[T]he Claimant asserts that Argentina has breached the fair and
equitable treatment standard and has not ensured full protection and security to the investment,
particularly insofar as it has profoundly altered the stability and predictability of the investment
environment, an assurance that was key to its decision to invest.”); Tecnicas Medioambientales
Tecmed S.A. v. United Mex. States, ICSID Case No. ARB (AF)/00/2, Award, ¶ 154, (May 29, 2003),
10 ICSID Rep. 130 (2004) (“The Arbitral Tribunal considers that [the fair and equitable treatment]
provision of the Agreement, in light of the good faith principle established by international law,
requires the Contracting Parties to provide to international investments treatment that does not
aect the basic expectations that were taken into account by the foreign investor to make the
investment.”).
157
See, e.g., CMS Gas, ICSID Case No. ARB/01/8, Award, ¶ 273 (“The key issue that the Tribunal
has to decide is whether the [legislative] measures adopted in 2000 – 2002 breached the standard of
protection afforded by Argentina’s undertaking to provide fair and equitable treatment.”).
2016] Preambles in Treaty Interpretation 1315
in order to determine its meaning.
158
Because the plain meaning of “fair and
equitable treatment” is unhelpful in ascertaining its substance, tribunals most
commonly resort to object-and-purpose analysis.
159
This object-and-purpose
analysis frequently relies heavily on preamble language to note that the
“purpose of BITs is to protect investments and investors.”
160
In a long line of cases, investment tribunals have relied on preamble
language to conclude that the stability of a country’s legal regime is part of
this object and purpose of promoting and protecting investment.
161
Tribunals
have emphasized preambles in reaching this conclusion in two ways. First,
they usually have based such decisions on language in the preamble that
mentions stability in conjunction with FET.
162
The undened FET provision
invariably included in a later substantive provision of the BIT thus becomes,
by virtue of the preamble, a commitment to a stable legal regime—at the
expense of the host state’s ability to regulate and legislate. Perhaps even more
controversially, tribunals have also cited the general purpose stated by most
BITs of creating conditions favorable to investors, as support for such broad,
investor-friendly interpretations of other clauses.
163
In this context,
preambles exert a clear and expansive legal power.
158
See ANDREW NEWCOMBE & LLUIS PARADELL, LAW AND PRACTICE OF INVESTMENT
TREATIES: STANDARDS OF TREATMENT 110 (2009) (“[International investment tribunals] regularly
begin the interpretation process by invoking Articles 31 and 32 of the Vienna Convention . . . .”).
159
See id. at 110-13 (citing an example of the obstacle reached by a tribunal attempting a
plain-meaning analysis of FET and noting other analytic tools used by tribunals as a result of this
obstacle, of which “object and purpose . . . has been the most prevalent”).
160
Id. at 114.
161
See, e.g., CMS Gas, ICSID Case No. ARB/01/8, Award, ¶ 274 (declaring with certainty that
the BIT preamble “makes clear” and leaves “no doubt . . . that a stable legal and business environment
is an essential element of fair and equitable treatment”); Enron Creditors Recovery Corp. v. Arg.
Republic, ICSID Case No. ARB/01/2, Award, ¶¶ 259-283 (May 22, 2007), http://www.italaw.com/
sites/default/files/case-documents/ita0293.pdf [http://perma.cc/7ZKZ-G8KG] (holding that “a key
element of fair and equitable treatment is the requirement of a stable framework for the investment,”
after “giv[ing] weight to the text of the Treaty’s Preamble, which links the standard to the goal of legal
stability”); Occidental Expl. & Prod. Co. v. Republic of Ecuador, LCIA Case No. 3467, Final Award,
¶¶ 183-186 (July 1, 2004), 12 ICSID Rep. 101 (2007) (holding, based on language in the preamble
mentioning stability and FET, that the “stability of the legal and business framework is thus an essential
element of fair and equitable treatment,” that “such requirements were not met by Ecuador,” and that
“this is an objective requirement that does not depend on whether the Respondent has proceeded in
good faith or not”).
162
One common formulation in many BIT preambles states that “fair and equitable treatment
of investment is desirable in order to maintain a stable framework for the investment and maximum
eective use of economic resources.” See, e.g., U.S.–Arg. BIT, supra note 154, pmbl. (declaring that
FET treatment is desirable to maintain “a stable framework for the investment and maximum
eective use of economic reserves”).
163
See, e.g., MTD Equity Sdn Bhd. v. Republic of Chile, ICSID Case No. ARB/01/7, Award,
¶ 113 (May 25, 2004), 12 ICSID Rep. 3 (2007) (invoking the preamble’s statement of the signatory
nations’ “desire to create favourable conditions for investments by investors of one Contracting Party
in the territory of the other Contracting Party,” together with a mention of stability and FET, to
1316 University of Pennsylvania Law Review [Vol. 164: 1281
These decisions do not claim to categorically bar nations from exercising
their legislative and regulatory powers in every case in which such an exercise
would hurt a protected investor’s activities. In CMS Gas, for example, the
tribunal noted that the “essential” nature of “a stable legal and business
environment” arising from the preamble did not require nations to freeze
their legal regimes—but did preclude those regimes being “dispensed with
altogether when specic commitments to the contrary have been made.”
164
Other
decisions have adopted a similar approach, protecting “basic” or “reasonable
and justied” expectations of investors.
165
Despite these qualifying statements, however, tribunals setting such
standards aord the state less regulatory leeway than they suggest. The rules
they create may place limits on the sovereignty of host states that surpass the
limitations voluntarily accepted by those states when concluding BITs. In
eect, tribunals often set a low bar for investors’ “reasonable” expectations by
allowing both express and implied commitments to create protectable
expectations. As one commentator notes of such decisions, “when states
contract with foreign investors, the existence of the regulatory framework gives
rise to an implied promise that the investment will not be impacted by
subsequent regulatory change.”
166
Under such a view, the relevant
“conditions” at the time of investment may include the existence of a law
itself, even in the absence of a “specic commitment” made expressly by the
state to the investor, as suggested in CMS Gas.
167
Thus in Enron, although
there were no “explicit promises that the legal and regulatory regime would
remain unchanged,”
168
the tribunal found that “the scope of Argentina’s
privatization process, its international marketing, and the statutory
enshrinement of the tari regime” were sucient to provide the claimant
with “reasonable grounds to rely on such conditions.”
169
The role that preambles have played in these arbitral decisions is
remarkable. Tribunals have combined broad preamble language concerning the
conclude that “fair and equitable treatment should be understood to be treatment . . . conducive to
fostering the promotion of foreign investment”).
164
CMS Gas, ICSID Case No. ARB/01/8, Award, ¶ 277 (emphasis added).
165
Enron, ICSID Case No. ARB/01/2, Award, ¶¶ 261-62 (citing Tecnicas Medioambientales
Tecmed S.A. v. United Mex. States, ICSID Case No. ARB (AF)/00/2, Award, ¶ 154, (May 29, 2003),
10 ICSID Rep. 130 (2004)). The Enron tribunal set forth a requirement that investors’ expectations
of stability under fair and equitable treatment provisions be “derived from the conditions that were
oered by the State to the investor at the time of the investment,” and that the investor actually rely
on those expectations. Id. ¶ 262.
166
Johnson & Volkov, supra note 148, at 379.
167
See id. at 380 (discussing similar ndings by the tribunals in Enron and other cases that “the
laws and regulations in place at the time when the investor made its investment established a
‘guarantee’ the government had the obligation under the FET requirement to maintain”).
168
See id. at 379-80 (summarizing the Enron tribunal’s ndings).
169
Enron, ICSID Case No. ARB/01/2, Award, ¶¶ 264-67.
2016] Preambles in Treaty Interpretation 1317
objective of facilitating investment with a vague mention of “stability” as
somehow linked with FET to transform FET into a potent weapon for
investors affected by states’ exercise of general regulatory power. This “new
FET-based rule[,] largely based on treaty preambles[,]” constitutes a
“significant shift in the scope of actual or potential liability for states.”
170
Moreover, this shift may not be confined to individual cases. Indeed, the
tribunal in LG&E Energy Corp. v. Argentine Republic went so far as to call this
conception of FET, as interpreted in the light of preambular language, “an
emerging standard of fair and equitable treatment in international law.”
171
And
it is unquestionably the preamble that lies at the heart of this “significant shift”
and (disputed) “emerging standard.”
2. Criticism of These Rules and the Underlying Treaty Interpretation
Despite the LG&E tribunal’s condent assertion, these tribunals’
investor-friendly interpretations, underlying reliance on preambles, and
general analysis and approach to VCLT object-and-purpose analysis have not
gone unchallenged. Other tribunals, dissenting arbitrators, and
commentators have attacked them on a variety of grounds. Most notable is
the claim that these decisions deviate from the underlying theory of the
VCLT’s analytical approach. Others have taken umbrage at what they call,
more specically, an incorrect use of object and purpose. Indeed, this
countercurrent reveals a possible vulnerability in tribunals’ tendency to rely
on preambles as a source for statements of the underlying objectives of a
treaty as a general matter.
Critics of this line of decisions have called their outcomes implausible at
best when viewed in light of the signatory nations’ intentions in concluding
investment treaties. As one International Center for the Settlement of
Investment Disputes (ICSID) tribunal noted in rejecting the investor-
friendly interpretation of FET applied by its sister tribunals,
170
Johnson & Volkov, supra note 148, at 381-82.
171
LG&E Energy Corp. v. Arg. Republic, ICSID Case No. ARB/02/1, Decision on Liability,
¶ 125 (Oct. 3, 2006), https://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&
actionVal=showDoc&docId=DC627_En&caseId=C208 [https://perma.cc/BU2U-TY5X]. The
argument has been made that investment treaties should be governed by separate interpretive rules
appropriate for the “regime in practice” that has arisen out of the thousands of BITs currently in
force, which often share language. See Gary Born & Mitchell Moranis, Should Investment Treaties
Have Their Own Rules of Interpretation?, K
LUWER ARB. BLOG (Feb. 3, 2015),
http://kluwerarbitrationblog.com/2015/02/03/should-investment-treaties-have-their-own-rules-of-
interpretation [http://perma.cc/48SD-4RM5] (“FET provisions have come to embody a specic set
of protections. Why? Tribunals may wish to avoid the absurdity of the same words meaning three
thousand dierent things. The contexts, objects, purposes, and other tools of interpretations, if not
identical, can be similar.”). Formal acceptance of such rules could eectively validate the LG&E
tribunal’s assertion.
1318 University of Pennsylvania Law Review [Vol. 164: 1281
[S]ignatories of such treaties do not thereby relinquish their regulatory
powers nor limit their responsibility to amend their legislation in order to
adapt it to change and the emerging needs and requests of their people in the
normal exercise of their prerogatives and duties. Such limitations upon a
government should not lightly be read into a treaty which does not spell them
out clearly nor should they be presumed.
172
The underlying point is simple but powerful: it is so unusual and unlikely
for a state to cede its sovereign authority over its internal aairs that doing
so should require an explicit statement to that eect. Thus, these tribunals’
analysis has produced an outcome “contrary to [the parties’] intentions.”
173
In
this sense, the tribunals have violated the rationale that undergirds the
VCLT’s textual approach to treaty interpretation, in which the text is the
most recent and reliable expression of the signatories’ intent.
174
While the
VCLT does reject an approach that would focus exclusively on the parties’
intent at the expense of the text,
175
here the tribunals arguably have taken the
textual focus too far toward the opposite extreme, discounting the parties’
intent altogether.
176
Relatedly, criticism has also been leveled at the tribunals’ implementation
of object-and-purpose analysis, including suggestions that their use of
preambles was inappropriate. In one case, a concurring arbitrator who agreed
that Argentina had violated its FET obligation led a separate opinion
criticizing the rule linking FET, investor expectations, and stability in legal
regimes, calling it “an extremely broad interpretation of the Preamble of some
BITs concluded by the United States.”
177
Another commentator notes that
172
Total S.A. v. Arg. Republic, ICSID Case No. ARB/04/1, Decision on Liability, ¶ 115 (Dec.
27, 2010), http://www.italaw.com/sites/default/les/case-documents/ita0868.pdf [https://perma.cc/
3UUN-5CBV].
173
NEWCOMBE & PARADELL, supra note 158, at 115.
174
See I.L.C. Report, supra note 86, at 220. (“The textual approach . . . commends itself by the
fact that, as one authority has put it, ‘le texte signé est, sauf de rares exceptions, la seule et la plus récente
expression de la volonté commune des parties.’” ([T]he signed text is, apart from rare exceptions, the
only and the most recent expression of the common will of the parties. (author’s translation))).
175
See id. (“[T]he starting point of interpretation is the elucidation of the meaning of the text,
not an investigation ab initio into the intentions of the parties.”); see also Mortenson, supra note 18,
at 785-88 (discussing the debate about what role parties’ intentions should play in treaty
interpretation during the drafting of the VCLT).
176
See, e.g., Zachary Douglas, Nothing If Not Critical for Investment Treaty Arbitration:
Occidental, Eureko and Methanex, 22 A
RB. INT’L 27, 51 (2006) (“Something is wrong with the
interpretive approach [whereby references to investment promotion language in the preamble
always result in interpretations favorable to the investor] and the idea that [they are] supported by
Article 31 of the Vienna Convention of the Law of Treaties is untenable.”).
177
Suez, Sociedad General de Aguas de Barcelona S.A. v. Arg. Republic, ICSID Case No.
ARB/03/19, Separate Opinion of Arbitrator Pedro Nikken, ¶ 29 (July 30, 2010), http://www.italaw.
com/sites/default/les/case-documents/ita0827.pdf [http://perma.cc/BAH3-DVP8].
2016] Preambles in Treaty Interpretation 1319
“the fact that [BITs] commonly contain preambles stating that their purpose
is to promote and protect investment should not be conated with a general
preference to protect the interests of the foreign investor over those of the
host state.”
178
Implicit in this statement is the argument that “[not] all
preambles are of equal value,”
179
an assertion that may be particularly relevant
to BITs, which are often drafted from a template and historically have often
undergone limited to no substantive negotiation.
180
Seen in light of this drafting history, these problematic interpretations of
BITs may not simply be an instance of “overly exuberant use of the object and
purpose.”
181
Rather, an analysis of these decisions reveals an inherent danger in
tribunals’ preference for turning to preambles for signs of object and purpose.
One question arising from the common treaty-drafting practice of integrating
statements of object and purpose in preambles—which motivated the
longstanding historical practice of using preambles in object-and-purpose
analyses—is whether this practice encourages judicial assumptions that
preambular language serves to state object and purpose where it in fact does
not.
182
Investment tribunals that have used BIT preambles to arrive at investor-
friendly interpretations of FET have at times referred to the “goal of legal
stability” in their analysis.
183
However, as one tribunal noted, “Stability of the
178
NEWCOMBE & PARADELL, supra note 158, at 115; see also Rudolf Dolzer, Indirect
Expropriation: New Developments?, 11 N.Y.U.
ENVTL. L.J. 64, 73-74 (2002) (“[I]nvestment treaties are
meant to benet both investor and host state and they are based on the recognition of the rights and
obligations of both the host state and the investor.”).
179
GARDINER, supra note 13, at 186.
180
See Lauge N. Skovgaard Poulsen, Sacricing Sovereignty by Chance: Investment Treaties,
Developing Countries, and Bounded Rationality 45 (June 2011) (unpublished Ph.D dissertation,
London School of Economics and Political Science), http://etheses.lse.ac.uk/141/1/
Poulsen_Sacricing_sovereignty_by_chance.pdf [https://perma.cc/UP4K-2Z7J] (noting that of
roughly 3000 signed BITs, “most closely follow the original European models with few adjustments,
and the vast majority thereby use remarkably similar terms with often identical provisions”); id. at
236-49 (describing the experience of countries that initially entered into BITs as
“photo-opportunity” agreements without understanding the implications of their terms); see also
Newcombe, supra note 2, at 364 & n.43 (“[T]he general approach and content of [BITs] are
remarkably similar. Convergence in treaty language has been promoted through the adoption by
states of model agreements . . . . [M]any BITs are based substantially on the 1967 OECD model.”).
181
WEERAMANTRY, supra note 153, at 192.
182
See supra Section II.A (describing the relevant treaty-drafting conventions and the
interpretive approaches that have arisen and gained widespread acceptance as a result).
183
See, e.g., Enron Creditors Recovery Corp. v. Arg. Republic, ICSID Case No. ARB/01/2,
Award, ¶ 259 (May 22, 2007), http://www.italaw.com/sites/default/files/case-documents/ita0293.pdf
[http://perma.cc/7ZKZ-G8KG] (emphasis added) (invoking VCLT article 31 and giving “weight to the
text of the Treaty’s Preamble, which links the standard [of FET] to the goal of legal stability” (emphasis
added)); see also, e.g., CMS Gas Transmission Co. v. Arg. Republic, ICSID Case No. ARB/01/8,
Award, ¶ 274 (May 12, 2005), 14 ICSID Rep. 152 (2009) (asserting that the preamble establishes that
a “principal objective of the protection envisaged is that [FET] is desirable ‘to maintain a stable
framework for investments and maximum effective use of economic resources’” and concluding that “a
stable legal and business environment is an essential element of fair and equitable treatment”).
1320 University of Pennsylvania Law Review [Vol. 164: 1281
legal framework for investments is mentioned in the Preamble of the BIT [but
is] not a legal obligation in itself . . . nor can it be properly defined as an object
of the Treaty.”
184
Although both tribunals interpreted the same treaty, one
found legal stability to be among the treaty’s goals, while the other viewed it as
a mere consideration mentioned in the preamble. An examination of that
particular treaty supports the latter interpretation.
185
While treaty preambles often announce the treaty’s object and purpose,
their content is by no means limited to such statements.
186
Distinguishing
between statements of object and purpose, rearmations of shared values,
and other content frequently included in preambles is undoubtedly a dicult
task. But an assumption that preamble language is inherently indicative of a
treaty’s object and purpose is incorrect. As the critics of this assumption
would argue, such a mistake may lead tribunals to confer too much power on
a particular preamble term.
187
3. Signs of Preambular Power
Irrespective of the controversy they have engendered, these decisions by
international investment tribunals demonstrate how preambles may exert a
strong inuence over adjudicative bodies that apply the VCLT’s
interpretative approach to discern the rights and obligations established by
treaties. These interpretations are notable because, while they do not go so
far as to “create a[n] obligation under the treaty”
188
out of the preamble alone,
they nevertheless bring preambles remarkably close to the substantive
extreme of the spectrum of legal power. Three observations support this
conclusion: (1) tribunals have formulated dierent FET standards depending
on the BITs and the preamble language before them; (2) even commentators
skeptical of this body of decisions have admitted that blame may belong with
184
Cont’l Cas. Co. v. Arg. Republic, ICSID Case No. ARB/03/9, Award, ¶ 258 (Sept. 5, 2008)
(emphasis added), http://www.italaw.com/sites/default/les/case-documents/ita0228.pdf [https://
perma.cc/D354-BAXH].
185
The relevant treaty preamble does not mention any “goals,” but merely reads, “Agreeing
that fair and equitable treatment of investment is desirable in order to maintain a stable framework
for investment and maximum eective use of economic resources . . . .” See U.S.–Arg. BIT, supra
note 154, pmbl.
186
See supra Introduction (providing an overview of preambles and their content generally).
187
It has been argued, for example, that the broad investor-friendly rules discussed in this
Section may ultimately undermine the object and purpose of these treaties in the aggregate, despite
these rules being justied with reference to a specic treaty’s clear objective of promoting
investment. See W
EERAMANTRY, supra note 153, at 192-93 (“The long-term promotion of investment
is likely to be better ensured by a well-balanced regime than by one which goes so far that it provokes
a swing of the pendulum in the other direction.”).
188
156 CONG. REC. S10,267 (daily ed. Dec. 15, 2010) (statement of Sen. Lugar). See supra Introduction
(outlining the disparate views on the potential legal effects of the New START Treaty preamble).
2016] Preambles in Treaty Interpretation 1321
the negotiating states; and (3) states have attempted to change the language
in their BIT preambles in response to these decisions.
Contrary to the LG&E tribunal’s assertion that the investor-friendly
interpretation of FET constituted an emergent standard in international law,
189
other tribunals have declined to see it as such, with preambles again playing a
determinative role. The investor-friendly decisions described supra largely
concerned treaties that had in common a reference to stability and FET in their
preambles, notably the U.S. Model BIT of the time.
190
However, tribunals
interpreting other BITs that lacked this preambular language have reached
different conclusions. In Total S.A., for example, the tribunal referred to the
other decisions with approval, but then noted that the “absence [of the relevant
language in the France–Argentina BIT being considered] indicates, at a
minimum, that stability of the legal domestic framework was not envisaged as
a specific element of the domestic legal regime that the Contracting Parties
undertook to grant to their respective investors.”
191
Preamble language was,
therefore, still the deciding factor in the tribunal’s analysis and application of a
different FET standard. Even those critical of this analytical reliance on
preambles have stressed that an inevitable consequence of this approach is that
the investor-friendly FET standard is necessarily preamble-dependent, and
that it thus cannot become a general rule.
192
189
LG&E Energy Corp. v. Arg. Republic, ICSID Case No. ARB/02/1, Decision on Liability,
¶ 125 (Oct. 3, 2006), https://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&
actionVal=showDoc&docId=DC627_En&caseId=C208 [https://perma.cc/BU2U-TY5X].
190
Enron, LG&E, and CMS Gas each concerned the U.S.–Argentina BIT. See Enron Creditors
Recovery Corp. v. Arg. Republic, ICSID Case No. ARB/01/2, Award, ¶ 4 (May 22, 2007),
http://www.italaw.com/sites/default/files/case-documents/ita0293.pdf [http://perma.cc/7ZKZ-G8KG];
LG&E, ICSID Case No. ARB/02/1, Decision on Liability, ¶¶ 3, 7; CMS Gas Transmission Co. v.
Arg. Republic, ICSID Case No. ARB/01/8, Award, ¶ 4 (May 12, 2005), 14 ICSID Rep. 152 (2009).
Occidental concerned the U.S.–Ecuador BIT. See Occidental Expl. & Prod. Co. v. Republic of
Ecuador, LCIA Case No. 3467, Final Award, ¶¶ 5-6 (July 1, 2004), 12 ICSID Rep. 101 (2007). The two
treaties contain almost identical language in their preambles. Compare Treaty between the United
States of America and the Republic of Ecuador Concerning the Encouragement and Reciprocal
Protection of Investment, U.S.–Ecuador, pmbl., Aug. 27, 1993, S.
TREATY DOC. NO. 103-15 (1993)
(“Agreeing that fair and equitable treatment of investment is desirable in order to maintain a stable
framework for investment and maximum eective utilization of economic resources . . . .”), with
U.S.–Arg. BIT, supra note 154, pmbl. (“Agreeing that fair and equitable treatment of investment is
desirable in order to maintain a stable framework for investment and maximum eective use of
economic resources . . .”).
191
Total S.A. v. Arg. Republic, ICSID Case No. ARB/04/1, Decision on Liability, ¶¶ 116-117
(Dec. 27, 2010), http://www.italaw.com/sites/default/les/case-documents/ita0868.pdf [https://
perma.cc/3UUN-5CBV]; see also Agreement on the Reciprocal Promotion and Protection of
Investments (with related letter), pmbl., Fr.–Arg., July 3, 1991, 1728 U.N.T.S. 297 (omitting any
mention of legal stability in the preamble).
192
See Suez, Sociedad General de Aguas de Barcelona S.A. v. Arg. Republic, ICSID Case No.
ARB/03/19, Separate Opinion of Arbitrator Pedro Nikken, ¶¶ 29-31 (July 30, 2010), http://www.
italaw.com/sites/default/les/case-documents/ita0827.pdf [http://perma.cc/BAH3-DVP8] (arguing
1322 University of Pennsylvania Law Review [Vol. 164: 1281
A second point of support for the legal weight exercised by preambles in
these investor-friendly decisions lies in admissions of commentators who,
while skeptical of the decisions in light of the respondent nations’ intentions,
note that those nations may themselves be to blame. Andrew Newcombe, who
expresses sympathy for the argument that a statement of purpose to protect
investment is not a sucient basis for broad, investor-friendly
interpretations, nevertheless concludes that there is little legal basis for
denying such a reading arising from object-and-purpose analysis.
193
Instead,
he argues that the fault lies with the carelessness of negotiating states:
[I]t is clear that many [BITs] have been drafted in narrow, uni-dimensional
terms, with treaty preambles hailing the need to enhance economic
cooperation and create a favourable investment climate, and often little else
in the way of broader policy objectives. Thus, at the end of the day, pro-
investor interpretations on the basis of the object and purpose of [BITs]
would seem to be defensible readings. Critics must admit, as has been noted,
that for their concerns the blame lies with governments which have
negotiated treaties.
194
Others have similarly argued that it was unwise for nations to enter into
treaties with broad language and uncertain eects and obligations, without
negotiating to ensure that they retained the ability to regulate in their own
internal interest.
195
Indeed, empirical evidence suggests that nations have accepted the
practical reality of preambles’ legal power in the investment treaty context,
changing their approaches to treaty drafting in response to these tribunals’
decisions. Over the past decade, states have begun to integrate language that
incorporates concerns other than the protection of investment into their
that “the interpretation is limited to the BITs whose preamble contains terms such as those that
support the ndings of those tribunals” and that, otherwise, an obligation that a state not exercise
its legislative power “cannot be presumed”).
193
See NEWCOMBE & PARADELL, supra note 158, at 115-16 (arguing that an interpretation that
automatically rules in favor of investors due to BITs’ overall objective of promoting investment may
be inappropriate, but that a “more balanced approach” to interpretation may produce the same
outcomes).
194
Id. at 116 (footnotes omitted).
195
See Poulsen, supra note 180, at 236-49 (describing nations’ experience with BITs and how
their approaches changed after their rst experience with an investor dispute under the treaties); see
also Prabhash Ranjan, The ‘Object and Purpose’ of Indian Investment Agreements: Failing to Balance
Investment Protection and Regulatory Power (“[A]rguments have been made that countries need to
draft [BITs] in order to clarify the meaning of vague and open ended terms like fair and equitable
treatment, have developmental goals in the preamble, and to have more clarity about rights of
competing stakeholders.” (internal citations omitted)), in F
OREIGN INVESTMENT AND DISPUTE
RESOLUTION LAW AND PRACTICE IN ASIA 192, 193 (Vivienne Bath & Luke Nottage eds., 2011).
2016] Preambles in Treaty Interpretation 1323
BITs.
196
Common examples include references to labor, social, or
environmental concerns.
197
Many member nations of the Organization of
Economic Cooperation and Development (“OECD”) now include treaty
language specically protecting their right to regulate in these areas.
198
While
some drafters include such language both in the preamble and later
substantive provisions, others importantly conne these changes to the
preamble alone.
199
In either case, “[t]hese texts do not attempt to establish
clear hierarchies of norms, but instead arm that investment and other norms
coexist harmoniously.”
200
For example, Finland’s model BIT now includes
language arming signatories’ “[agreement] that these objectives can be
achieved without relaxing health, safety and environmental measures of
general application.”
201
Signicantly, the United States’ 2012 Model BIT
similarly provides that parties “[d]esir[e] to achieve these objectives [to
promote investment] in a manner consistent with the protection of health,
safety, and the environment, and the promotion of internationally recognized
labor rights.”
202
This trend may also extend to multilateral treaties such as the
Trans-Pacic Partnership, whose draft preamble “recogni[zes the state
parties’] right to regulate” and thus seeks to “preserve the[ir] exibility . . .
to set legislative and regulatory priorities” in a variety of areas.
203
Among the factors driving the inclusion of such language is the simple
fact that nations are “learning from experience” and working to “lower the
risks that arbitration under the agreements will be used in ways that were not
intended by the parties to the agreements.”
204
In other words, if preambles
have become a source of problems due to the legal power tribunals have
aorded them, nations can respond—and have begun to do so—by harnessing
the same, newly evident legal power of preambles to implement solutions.
196
See Ranjan, supra note 195, at 193 (“[S]ome countries have amended their model [BITs] to
make investment protection standards more precise . . . [and some] new [BITs] now contain
provisions aimed at balancing investment protection with the host state’s regulatory power.”
(internal citations omitted)).
197
See generally Kathryn Gordon, Environmental, Labor and Anti-Corruption Texts in
International Investment Agreements: A Large Sample Survey (Org. Econ. Cooperation & Dev.,
Working Paper No. 2008/1, 2008), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1719089 [http
://perma.cc/YM44-9YP9] (discussing recent trends in BIT drafting).
198
See id. at 6-8 (listing seventeen countries or regional organizations that included such
language in their recent BITs or multilateral investment treaties).
199
Id. at 4-5.
200
Id. at 4.
201
Id. at 5.
202
See 2012 U.S. Model Bilateral Investment Treaty, DEP’T OF STATE, http://www.state.
gov/documents/organization/188371.pdf [https://perma.cc/HH6J-86BF] (last visited Mar. 19, 2016).
203
Trans-Pacic Partnership Final Text Preamble, U.S. TRADE REPRESENTATIVE, https://ustr.
gov/sites/default/les/TPP-Final-Text-Preamble.pdf [https://perma.cc/WKR9-H467] (last visited
Mar. 19, 2016).
204
Id. at 13.
1324 University of Pennsylvania Law Review [Vol. 164: 1281
C. Preambles in I.C.J. Opinions
The contexts of the WTO and international investment treaties discussed
supra are particularly salient examples of preambles’ applications in treaty
interpretation both because of the relatively narrow focus of tribunals
working in those domains and because of the particular approaches that those
tribunals have taken towards treaty preambles and interpretation, which now
form part of their jurisprudence. Conversely, it is relatively dicult to discern
patterns in the usage of preambles in the more general realm of public
international law, given the vast variety of actors, interpretive bodies, and
subject matters that make up this category.
205
This diversity, combined with the interpretive exibility aorded by the
VCLT, inevitably means that there will be no single or even dominant
approach. For instance, while the I.C.J. will refer to treaty preambles—albeit
in an inconsistent manner, as discussed infra—the U.N.’s Human Rights
Committee (HRC), in its jurisprudence on the International Covenant on
Civil and Political Rights (ICCPR), does not appear inclined to rely on the
ICCPR preamble in its opinions.
206
By contrast, claimants have in certain
instances made arguments citing the ICCPR’s preamble before the HRC.
207
A full investigation of the approaches of the diverse adjudicative bodies
operating in the realm of public international law exceeds the scope of this
Comment, which instead focuses on the jurisprudence of the I.C.J.—
sometimes called the “World Court.”
208
Even from this relatively limited set
of opinions,
209
two familiar conclusions can be drawn: rst, considerable
205
Public international law addresses issues as diverse as human rights, humanitarian law,
environmental law, state sovereignty, national borders, and the law of the sea, to name just a few
examples. Each area may have multiple adjudicative bodies capable of interpreting the relevant
law—whether in an advisory or legally binding nature—which may in turn dier between national
parties or regions.
206
The author searched the U.N. Oce of the High Commissioner of Human Rights
jurisprudence database and found no references to the ICCPR preamble by the HRC for substantive
interpretive purposes. Jurisprudence, U.N.
OFF. HIGH COMMISSIONER FOR HUM. RTS.,
http://juris.ohchr.org [http://perma.cc/2YXN-DJJK] (last visited Mar. 19, 2016) (in “keyword” box,
search “ICCPR Preamble”).
207
See, e.g., Riley v. Can., Communication No. 1048/2002, U.N. H.R.C., CCPR/
C/74/D/1038/2002 (Apr. 15, 2002), http://ccprcentre.org/doc/2013/05/CCPR_C_74_D_1048
_2002.pdf [https://perma.cc/CH8W-C6KA] (providing an example of an individual complainant
citing the ICCPR preamble as proof of standing—an assertion ultimately rejected by the HCR
without reference to the preamble).
208
BROWNLIE, supra note 6, at 707.
209
As of 2005, only 104 disputes had been led with the I.C.J. since its inception in 1945, with
only seventy-six cases culminating in votes on substantive questions. Eric A. Posner & Miguel F. P.
de Figueiredo, Is the International Court of Justice Biased?, 34 J.
LEGAL STUD. 599, 604-05 (2005).
Since 2005, an additional twenty-eight disputes have been referred to the I.C.J. See List of Cases
Referred to the Court Since 1946 by Date of Introduction, I
NT’L CT. JUST., http://www.icj-
cij.org/docket/index.php?p1=3&p2=2 [https://perma.cc/2DUF-3MJE] (last visited Mar. 19, 2016).
2016] Preambles in Treaty Interpretation 1325
dierences in opinion exist regarding the proper interpretive weight and legal
power of treaty preambles; and second, treaty preambles are fully capable of
occupying a place on the substantive extreme of the spectrum of legal power.
It is not particularly dicult to identify I.C.J. decisions in which treaty
preambles have exercised signicant inuence over the Court’s interpretation
of treaties. Perhaps the rst—and certainly the most frequently cited—
example is the 1952 decision in Nationals of the United States of America in
Morocco, in which the I.C.J. rejected the U.S. interpretations of the Madrid
Convention and the Act of Algeciras, which would have allowed the U.S.
indenite consular jurisdiction over its nationals in Morocco.
210
In rejecting
this argument, the I.C.J. relied on preamble language emphasizing the
importance of Morocco’s sovereign powers and economic equality, noting that
“the interpretation of the provisions of the Act must take into account its
purposes, which are set forth in the Preamble.”
211
Because the U.S.
interpretation would have given the United States “rights enjoyable for an
unlimited period . . . and incapable of being terminated or modied by
Morocco,” the I.C.J. found such a reading irreconcilable with the preambular
statement of the treaty’s object and purpose.
212
More recently, the I.C.J.’s opinion in the Territorial and Maritime Dispute
between Nicaragua and Colombia presents another—and a particularly
fascinating—example of the Court giving preambular language great legal
weight.
213
In that case, Nicaragua sought the Court’s denition of a
continental shelf boundary that would equally divide the overlapping
entitlements of the two countries.
214
The Court rejected Nicaragua’s request,
citing article 76 of the United Nations Convention on the Law of the Sea
(UNCLOS), which set forth certain procedural and informational
requirements with which Nicaragua had not complied.
215
But while Nicaragua
was a party to UNCLOS at the time, Colombia was not. This fact raised a
question of whether Nicaragua’s obligations under the treaty applied. The
Court held that they did, citing the UNCLOS preamble, its purpose of
establishing “a legal order for the seas and oceans” and its statement that
“problems of ocean space . . . need to be considered as a whole.”
216
Based
210
Rights of Nationals of the United States of America in Morocco (Fr. v. U.S.), Judgment,
1952 I.C.J. Rep. 176, 196-98 (Aug. 27).
211
Id. at 197.
212
Id. at 198.
213
Judgment, 2012 I.C.J. Rep. 624 (Nov. 19).
214
Id. at 664, ¶ 106.
215
Id. at 668-70, ¶¶ 126-131; see also United Nations Convention on the Law of the Sea art. 76,
Dec. 10, 1982, 1833 U.N.T.S. 397 (requiring a coastal state seeking a delimitation of its continental
shelf to submit to the Commission on the Limits of the Continental Shelf information on
measurements of the shelf).
216
Id. at 669 ¶ 126.
1326 University of Pennsylvania Law Review [Vol. 164: 1281
solely on this language, Colombia’s non-party status did “not relieve
Nicaragua of its obligations” under the treaty.
217
This result is surprising, as
it appears to go against the general principle of international law embodied
in the VCLT’s article 34, which states that a “treaty does not create either
obligations or rights for a third State without its consent.”
218
Indeed, in a
separate opinion Judge Thomas Mensah stated his disapproval of the Court’s
reliance on the UNCLOS preamble to reach such an unusual conclusion
about the nature of treaty and the legal obligations it imposes.
219
Such disagreements about the role of preambles in treaty interpretation
are hardly anomalies in the I.C.J.’s jurisprudence, being evident both within
and between decisions that address the question. Two example cases, each
also concerning border disputes, help illustrate these inconsistencies. In the
rst, Arbitral Award of 31 July 1989, the Court was tasked with resolving a
dispute between Guinea-Bissau and Senegal concerning an arbitral award
made by a tribunal pursuant to an arbitration agreement between the two
countries.
220
That agreement, concluded between two sovereign states,
constituted a treaty according to the Court, and thus was to be interpreted
using the “general rules of international law governing the interpretation of
treaties,” notably those contained in the VCLT.
221
The countries had submitted two questions to the initial arbitral tribunal:
the rst concerned the validity of a 1960 treaty concerning the two countries’
maritime boundaries, while the second requested that the tribunal delimit
those boundaries if the 1960 treaty were found invalid under the rst question.
222
The arbitral tribunal had answered the rst question by declaring the 1960
treaty valid with regards to the territorial sea, the contiguous zone and the
continental shelf; and considering this an armative answer to the rst
question, it did not address the second question.
223
Before the I.C.J., Guinea-Bissau argued that this outcome was in error
because the dispute with Senegal also concerned legal concepts of maritime
spaces that had not existed at the time of the 1960 agreement, such as
exclusive economic zones and shery zones.
224
Thus, according to
Guinea-Bissau, because the tribunal concluded that the 1960 agreement did
217
Id.
218
VCLT, supra note 3, art. 34; see also BROWNLIE, supra note 6, at 627 (describing the maxim
pacta tertiis nec nocent nec prosunt as a “fundamental principle,” noting its embodiment in the VCLT,
and describing two recognized exceptions—neither of which appears to apply here).
219
See Territorial and Maritime Dispute (Nicar. v. Colom.), Judgment, 2012 I.C.J. Rep. 624,
764-65, ¶ 8 (Nov. 19) (declaration of Mensah, J.).
220
Judgment, 1991 I.C.J. Rep. 53 (Nov. 12).
221
Id. at 69, ¶ 48.
222
Id. at 58, ¶ 14.
223
Id. at 66, ¶ 38.
224
Id. at 73, ¶ 58.
2016] Preambles in Treaty Interpretation 1327
not dene these newer boundaries that were also part of the overall dispute,
the tribunal should have addressed the second question.
225
In support of this
argument, it cited the Preamble to the arbitration agreement, which stated
the agreement’s purpose as being “to reach a settlement of [the nations’]
dispute as soon as possible.”
226
In short, Guinea-Bissau claimed that the
tribunal had failed to achieve the object and purpose of the treaty by not
resolving the entire dispute between the two nations.
The Court rejected this argument, holding that the “general terms” of the
Preamble did not outweigh the language and structure of the questions posed
by the arbitration agreement.
227
In eect, this outcome prevented the
agreement from accomplishing its stated object and purpose, a fact
recognized by the Court, which “observe[d] that [the] result is due to the
wording of [the questions posed in] . . . the Arbitration Agreement.”
228
Other
judges echoed this sentiment in separate opinions, eectively identifying as
the primary problem the poor drafting of the arbitration agreement, which
posed unambiguous questions that did not reect the actual dispute between
the two nations.
229
In the eyes of the Court, the preamble’s general reference
to the nations’ overall dispute could not alter the clear language of the
agreement’s provisions.
At rst, this outcome may appear related to—or required by—the
particular considerations involved in asking the Court to interpret an
arbitration agreement already interpreted by the competent tribunal. In the
context of such a request, the Court clearly considered it crucial to determine
precisely and to respect the consent given by the state parties to the
agreement.
230
It also stressed that its review of the arbitral tribunal’s
225
Id.
226
Id. at 58, ¶ 14, 71, ¶ 52.
227
Id. at 72, ¶ 56.
228
Id. at 74, ¶ 66.
229
See id. at 87, ¶ 13 (separate opinion of Oda, J.) (“In view of the real issue in dispute between
the two States, it is obvious that the Agreement was drafted in an inappropriate manner.”); id. at
102 (separate opinion of Ni, J.) (declaring that the “clear and unambiguous language” cannot be
changed by language in the Preamble).
230
The Court emphasized this fact in its opinion:
[W]hen States sign an arbitration agreement, they are concluding an agreement with
a very specic object and purpose: to entrust an arbitration tribunal with the task of
settling a dispute in accordance with the terms agreed by the parties, who dene in
the agreement the jurisdiction of the tribunal and determine its limits. In the
performance of the task entrusted to it, the tribunal must conform to the terms by which
the Parties have dened this task.
Id. at 70, ¶ 49 (emphasis added) (citations omitted). The Court then examined the specific consent
given by the arbitration agreement in detail, concluding that “although the two States had expressed in
general terms in the Preamble of the Arbitration Agreement their desire to reach a settlement of their
dispute, their consent thereto had only been given in the terms laid down by Article 2.” Id. at 72, ¶ 56.
1328 University of Pennsylvania Law Review [Vol. 164: 1281
determination of its own competence and mandate must be circumscribed;
otherwise, the Court risked acting as a court of appeal, which was not its role.
Its task was therefore not to determine whether a more plausible reading of
the arbitration agreement existed, but rather to determine whether the
arbitral tribunal’s own reading was permitted by the text of the agreement.
231
But regardless of the potentially limited review required by the
circumstance of interpreting an arbitration agreement, the Court’s decision
ultimately depended on its interpretation of the agreement and its vision of the
relationship between its preamble and subsequent provisions. And indeed, the
Court’s decision and approach to interpreting the arbitration agreement and its
preamble were not matters of universal agreement among the members of the
Court. Two judges argued strenuously, in dissenting opinions, that the
preamble to the agreement made “transparently clear that the object of the
instrument was the settlement of the entire boundary question.”
232
One
dissenting judge cited I.C.J. precedent, including U.S. Nationals in Morocco, and
argued that the preamble should not have been disregarded as it was key to
interpreting the agreement.
233
The other dissenter arrived at a similar
conclusion, focusing not on the legal role of preambles specifically, but rather
on the importance of object and purpose in interpreting treaties. More
precisely, the second judge argued that plain-language readings of provisions
cannot be accepted when they are clearly in conflict with the treaty’s object and
purpose, as reflected in the preamble in this case.
234
231
The Court noted at the outset that its mission was not
to enquire whether or not the Arbitration Agreement could, with regard to the
Tribunal’s competence, be interpreted in a number of ways, and if so to consider which
would have been preferable. By proceeding in that way the Court would be treating
the request as an appeal and not as a recours en nullité.
Id. at 69, ¶ 47.
232
Id. at 142 (dissenting opinion of Weeramantry, J.); see also id. at 176 (dissenting opinion of
Thierry, J.) (citing the preamble, calling it “perfectly clear” in establishing the resolution of the
nations’ dispute as the object of the treaty, and using these conclusions to interpret the questions
posed in the arbitration agreement as requiring that a “single line” be used to delimit all maritime
boundaries subject to dispute).
233
Id. at 146 (dissenting opinion of Weeramantry, J.) (“The entire document was instinct with
this meaning from its very Preamble.”); see also id. (“The preamble is a principal and natural source
from which indications can be gathered of a treaty’s objects and purposes even though it does not
contain substantive provisions.” (citing Rights of Nationals of the United States of America in
Morocco (Fr. v. U.S.), Judgment, 1952 I.C.J. Rep. 176, 196 (Aug. 27))).
234
See id. at 183-85 (dissenting opinion of Thierry, J.) (arguing that, where plain meaning
interpretation of a treaty provision produces a result inconsistent with a treaty’s object and purpose,
reliance on the plain meaning alone is inappropriate (citing Interpretation of the Convention of 1919
concerning Employment of Women During the Night, Advisory Opinion, 1932 P.C.I.J. (ser. A/B)
No. 50, at 373 (Nov. 15); Polish Postal Service in Danzig, Advisory Opinion, 1925 P.C.I.J. (ser. B)
No. 11, at 39 (May 16))).
2016] Preambles in Treaty Interpretation 1329
A decade later, in Sovereignty over Pulau Ligitan and Pulau Sipadan,
235
the
Court relied on a strict textual interpretation of the preamble to determine
whether a border-establishing treaty from 1891 included two outlying islands
near Borneo. The 1891 treaty had been concluded between the Netherlands and
Great Britain to resolve overlapping claims in the area.
236
Indonesia and
Malaysia came to dispute the ownership of the islands in the decades following
their independence and eventually submitted the question to the I.C.J.
237
Indonesia claimed sovereignty over the islands based largely on the 1891 treaty
and the dividing line established by article IV of the treaty.
238
Malaysia
challenged this reading of the treaty, which it regarded as seeking to establish
British and Dutch territories solely on the island of Borneo.
239
The Court,
relying on the object and purpose “as shown by the preamble” to the treaty,
agreed with Malaysia and held that the treaty did not apply to outlying
islands.
240
Specifically, it pointed to the preambular statement that the parties
were “desirous of defining the boundaries between the Dutch possessions in
the Island of Borneo and the States in that island which are under British
protection.”
241
The implication is that the literal reading of the preamble text
determined the interpretation of the subsequent provision.
Once again, however, this interpretation was the subject of disagreement in
the Court, with one judge making an argument that echoed the dissents in the
dispute between Guinea-Bissau and Senegal. Citing the same preambular
language as the majority, he argued that the preamble, informed by a close
reading of history, indicated a “largesse of purpose [between the parties. The
Netherlands and Great Britain] wanted to solve, once and for all, the problems
that could arise between adjacent imperial Powers.”
242
Thus, it was improbable
that the two nations would leave the two nearby islands out of the treaty, “[f]or
it was closure the parties wanted. It was the object and purpose of their
agreement.”
243
The majority’s literal reading and focus on the singular mention
of “the island of Borneo” was, seen in this light, mistaken and illogical.
244
235
(Indon. v. Malay.), Judgment, 2002 I.C.J. 625, 645-53 ¶¶ 37-52 (Dec. 17).
236
Id. at 640, ¶ 23, 644-45 ¶ 36.
237
Id. at 642, ¶ 31.
238
Id. at 643-44, ¶¶ 34, 36.
239
Id. at 644, ¶ 35.
240
Id. at 652, ¶ 51.
241
Id.
242
Id. at 699, ¶ 27 (separate opinion of Franck, J.).
243
Id.
244
See id. at 701, ¶ 33 (“That the Convention, in its preamble, speaks of ‘the island of Borneo’
does not, to me, demonstrate, a contrario, that a treaty dealing with ‘Borneo’ intended to exclude
these minute islands situated a short distance (56.7 miles, in the case of Ligitan, the more distant of
the two) east of Sebatik.”).
1330 University of Pennsylvania Law Review [Vol. 164: 1281
While this divergence in opinion between the Court and its dissenting
judge ultimately boils down to a question of interpretation of the preamble
itself, the decisive weight that both opinions give to the preamble contradicts
the Court’s analysis in the dispute between Guinea-Bissau and Senegal. In
that case, the Court dismissed the preamble as powerless to control the literal
meaning of the (poorly drafted) treaty provision that followed. In the dispute
between Indonesia and Malaysia, the Court in some ways took the opposite
approach, using a literal reading of the preamble to ultimately control the
meaning of the provision in question.
245
As noted supra, it is dicult to fully
reconcile this divergence by citing the limited review exercised by the Court
in interpreting the arbitration agreement between Guinea-Bissau and
Senegal.
246
The exercise of limited review in that case nevertheless required
interpreting the treaty, with judges arriving at opposing interpretations based
on their view of its preamble’s role and eects.
247
And these disagreements—
both within and between the decisions in these two disputes—thus suggest
the absence of a clear normative vision of preambles’ proper role.
Indeed, given the complex factual nature of these disputes and of textual
and object-and-purpose analysis, it is dicult to draw rm conclusions about
the roles that preambles have played in the jurisprudence of the I.C.J. more
generally. Nevertheless, from the cases illustrated above, three clear
observations can be drawn. First, the I.C.J. has neither escaped nor resolved
the disagreement surrounding the proper role of treaty preambles in treaty
interpretation. Second, treaty interpretations that imbue preambles with
great legal weight are not solely phenomena conned to the relatively limited
areas of WTO and investment treaty jurisprudence, but arise in the more
general arena of public international law as well. And third, it is dicult for
tribunals—and for those reading their opinions—to maintain a clear vision of
what exactly informs their reliance (or lack thereof) on preambles when
complex facts, object-and-purpose analysis, and treaty drafting of varying
quality enter the interpretive fray.
IV. A
LTERNATIVE AN D PRACTICAL APPROACHES
If one thing is clear from the uses of and approaches to treaty preambles
described in the preceding Parts, it is that these texts cannot be summarily
dismissed as mere ceremonial introductions of no legal consequence. This
245
The Court also marshaled other evidence, such as subsequent agreements that “dene[d]
the course of the boundary line more exactly,” in favor of its conclusions. Id. at 659, ¶ 70.
Nevertheless, the starting point for its conclusion was its reading of the preamble.
246
See supra notes 230–231 and accompanying text.
247
See supra notes 232–234 and accompanying text.
2016] Preambles in Treaty Interpretation 1331
conclusion is unavoidable as a matter of both doctrine and practice.
248
Yet it
is also evident that the interpretive practices surrounding treaty preambles
are marked by confusion and disagreement. Two questions naturally arise
from this state of aairs. First, is the approach to preambles established by
the VCLT correct, or would a dierent approach have helped stem the debate?
And second, what are the implications for states and negotiators faced with
the present reality of treaty preambles? In response to the rst question, this
Part argues that the VCLT does indeed take the correct position on preambles
as a normative matter, with confusion arising largely from the judicial
application of that stance, complicated by problems inherent to treaty
drafting, textual interpretation and object-and-purpose analysis. This Part
then addresses the second question by exploring options and approaches for
nations and negotiators to harness or control treaty preambles, given the
practical state of confusion and disagreement that surrounds them.
A. The VCLT Approach and Alternatives
Should the VCLT have adopted another position on preambles? To
answer this question in the armative, one might rst cite the confusion
evident in the range of usages of and interpretive stances towards this
ubiquitous treaty element, discussed supra. One might then attribute this
confusion to the VCLT and to its negotiators, who apparently did not belabor
the question of preambles during the VCLT drafting conventions.
249
But a
brief examination of alternative approaches in light of the specic factors that
contribute to this confusion suggests that the VCLT is correct in dening the
preamble as part of the text and therefore as an important and necessary
element of the VCLT’s holistic textual approach to interpreting treaties.
250
One obvious alternative approach would have been to somehow
emphasize the importance of the preamble, underscoring its potential to carry
legal weight and to substantively aect the rights and obligations arising
under the treaty. A stronger such statement contained in the VCLT would,
presumably, have resolved interpreters’ doubts about aording too much
weight to preamble language, to the extent that such doubts arose from that
language’s location in the preamble. But such an approach poses its own
problems. First, it runs counter to the VCLT drafters’ intent to provide a
exible structure for interpretation capable of accommodating a variety of
248
See supra Parts II–III.
249
See supra notes 107–108 and accompanying text (noting the conclusory statement contained
in the VCLT travaux which asserts, “That the preamble forms part of a treaty for purposes of
interpretation is too well settled to require comment . . . .”).
250
See supra Section II.A.
1332 University of Pennsylvania Law Review [Vol. 164: 1281
approaches within reason.
251
Second, it risks going too far and transforming
the preamble and its language into a controlling power governing the
subsequent provisions of the treaty in every case, a result that would
unarguably and considerably deviate from the history of treaty practice that
the VCLT intended to codify. Moreover, article 31 of the VCLT in its present
form already expresses, if read correctly, a simple yet explicit statement of the
preamble’s importance by dening it as part of the treaty’s text, which is the
“presumptive object of interpretation”
252
as the “presum[ptively] . . .
authentic expression of the intentions of the parties.”
253
Conversely, another approach to resolving confusion would have been to
move in the opposite direction, explicitly diminishing the importance of the
preamble. One possible variation of this approach would have been to situate
the preamble among the “supplementary means of interpretation” established
by article 32—the travaux préparatoires and circumstances surrounding the
treaty’s conclusion—which are only to be referred to in order to conrm the
meaning arrived at rst by means of article 31, in the case of ambiguous or
obscure meaning, or when the interpretation “leads to a result which is
manifestly absurd or unreasonable.”
254
A more extreme variation would have
been to do away with the preamble entirely as an interpretive resource by
relegating it to a purely ceremonial and formal function. Both approaches,
however, would be in distinct tension with the formal structure and process
underlying treaties. Preambles, like the terms they introduce, are the product
of negotiation and drafting.
255
As formal expressions of the signatories’
intent, preambles are natural objects of textual interpretation, unlike the
travaux préparatoires or surrounding circumstances of the treaty, whose role
beyond conrming interpretations derived by way of article 31 is limited to
circumstances of ambiguity or unreasonableness. Simply put, preambles exist
well within the four corners of their treaties. There is therefore no formal,
251
See supra note 80 and accompanying text.
252
Mortenson, supra note 18, at 785.
253
I.L.C. Report, supra note 86, at 220.
254
VCLT, supra note 3, art. 32.
255
Bilateral investment treaties constitute one possible and interesting exception to this
general statement, due to nations’ use of standard base treaties that, somewhat akin to form contracts
in contract law, ostensibly raise issues of parties’ consent to their terms. But the context of a
negotiation and agreement concluded between two states diers considerably from the context of
take-it-or-leave-it contracts proposed to consumers en masse. This dierence may explain why
commentators—while sympathetic to nations who did not fully realize the implications of the terms
of the treaty they were concluding—believe nations that entered into such treaties should be bound
by the resulting obligations. Compare Poulsen, supra note 180, at 236-49 (describing the experience
of countries that initially entered into BITs as “photo-opportunity” agreements without
understanding the implications of their terms), with N
EWCOMBE & PARADELL, supra note 158, at
116 (“Critics must admit, as has been noted, that for their concerns the blame lies with governments
which have negotiated treaties.” (citation omitted)).
2016] Preambles in Treaty Interpretation 1333
procedural, or historical basis for functionally expelling them from the
documents they introduce. Such an approach—like an approach elevating
preambles to a superior status—would break strongly with the history and
practice of treaty negotiation, drafting and interpretation, and is thus
undesirable even if it might have the benet of reducing disagreement about
the roles a given preamble should play in interpreting an agreement.
The VCLT’s treatment of preambles thus appears correct as both a
descriptive and normative matter, situating the preamble as an element of the
text that must be considered when interpreting the agreement. Whether
adjudicators correctly apply this approach is, of course, another question,
complicated by the additional factor of how to interpret a specic treaty’s
text, which is unavoidably a potential source of disagreement. Also adding to
the complication is object-and-purpose analysis, which has been referred to
as an “enigma.”
256
As noted in multiple instances supra, it can be dicult to
discern the relative inuence exerted on a given interpretation by a treaty
preamble’s actual language versus its very status as a preamble, particularly
when the interpretation minimizes the eect of the relevant language.
257
Likewise, object-and-purpose analysis, for example when inuenced by the
widespread practice of using treaty preambles to state the object and purpose
of a treaty, can produce questionable conclusions.
258
Both aspects contribute
to the practical uncertainty that nations should consider when negotiating,
drafting, or citing to treaties and their preambles.
B. Implications for States and Negotiators
The practical uncertainty surrounding, and potential power of, preambles
create both opportunities and pitfalls for nations engaged in treaty
negotiation and drafting. Nations with more resources, experience, and a
better understanding of treaty law may have an upper hand when it comes to
using preambles to their advantage, while nations that do not may be at a
disadvantage.
259
This Section briey sets forth various approaches to treaty
preambles that actors should consider when faced with the task of drafting a
treaty and its preamble.
First and foremost, nations should be aware of preambles’ potential and
their uncertain eect, taking into account the nature of the treaty and the
256
See generally Buard & Zemanek, supra note 117 (exploring whether the “object and purpose”
of a treaty can be determined objectively).
257
See, e.g., supra note 24 and accompanying text (recounting former Secretary of State Hillary
Clinton’s statement dismissing the controversial language contained in the New START Treaty).
258
See supra notes 181–187 and accompanying text (suggesting that tribunals may mistakenly
construe preambular language as statements of object and purpose when that was not the drafters’ intent).
259
See generally, e.g., Poulsen, supra note 180 (describing developing nations’ experiences when
rst taking part in the explosion of BITs).
1334 University of Pennsylvania Law Review [Vol. 164: 1281
identities of its potential future interpreters. Second, nations can attempt to
harness the power of preambles collaboratively or for their own benet.
Thirdly (and alternatively), nations can rein in the uncertainty by
preemptively addressing issues of textual and object-and-purposes analysis.
Finally, nations embroiled in treaty disputes can attempt to invoke and
exploit preambles in their favor.
1. Recognizing the Preamble’s Importance in the Context of the Treaty
Nations engaged in negotiating and drafting must not only realize that
treaty preambles are potentially powerful parts of the text, but also that it
would be wise to consider the nature of the treaty at hand and the interpretive
jurisdiction it confers. As an initial point, it would be a clear error for a nation
to discount the preamble and its language outright, given the demonstrable
instances of preambles exerting decisive legal weight. But the practical
consequences of a preamble’s potential power may change as a function of
who is in a position to interpret it, under the terms of the treaty and the
treaty’s provision (or lack thereof) for jurisdiction over disputes by an
international tribunal. Many treaties contain a provision granting jurisdiction
over disputes arising from the treaty to a non-domestic adjudicative body.
260
In the case of the I.C.J., jurisdiction over a dispute may also be accomplished
by mutual consent, which can take a variety of forms: states can provide
general consent by acceding to the I.C.J. Statute’s Optional Protocol, or they
can submit a specic dispute to the jurisdiction of the Court, as in the case of
Guinea-Bissau and Senegal in Arbitral Award of 31 July 1989.
261
Absent one of
these equivalent mechanisms, however, the principle of state sovereignty
prevents an external, international tribunal from taking jurisdiction over
260
See BROWNLIE, supra note 6, at 713-14 (discussing such provisions granting jurisdiction to
the I.C.J.); see also I.C.J. Statute, supra note 76, art. 36(1) (“The jurisdiction of the Court comprises
all cases which the parties refer to it and all matters specially provided for in the Charter of the
United Nations or in treaties and conventions in force.”).
261
See Jean Galbraith, Treaty Options: Towards a Behavioral Understanding of Treaty Design, 53
V
A. J. INT’L L. 309, 335 (2013) (observing that 34% of states have provided such general consent by
acceding to the I.C.J.’s Optional Protocol, which is a much higher participation rate than in all other
treaties that give states an option to submit disputes arising under that treaty to I.C.J. jurisdiction);
see also Arbitral Award of 31 July 1989, Judgment, 1991 I.C.J. Rep. 53, 55, ¶ 1 (Nov. 12) (recognizing,
as a preliminary matter, the mutual declarations by which Senegal and Guinea-Bissau accepted the
jurisdiction of the I.C.J. over their dispute); B
ROWNLIE, supra note 6, at 716 (describing generally
jurisdiction by consent as provided by article 36(2) of the I.C.J. Statute).
2016] Preambles in Treaty Interpretation 1335
disputes arising from a treaty.
262
Instead, competence to interpret remains
solely with the states party to the treaty.
263
The presence or absence of such provisions may be relevant to the amount
of attention parties to a treaty should devote to its preamble. As a technical
legal matter, the absence or presence of jurisdiction-conferring provisions has
no eect on the legal obligations and rights arising from the treaty. But as a
practical matter, the possibility of an external adjudicator interpreting the
treaty is potentially consequential. Interpretation by a tribunal subjects the
treaty and its parties to the diverse and unpredictable spectrum of approaches
to preambles in treaty interpretation and, moreover, may do so in a legally
binding way. By contrast, disputes over preamble language in treaties that do
not stand to be interpreted by third-party adjudicatory bodies are likely to
have diplomatic, but not necessarily enforceable legal consequences. This
observation does not stand for the proposition that such consequences are not
important; diplomatic issues of reciprocity and global reputation provide
strong incentives for nations to limit their own interpretations and conduct
with respect to treaty obligations.
264
Rather, it merely serves to recognize that
nations may be more willing to use preambles for concessions or other
diplomatic purposes when assured that subsequent disputes over treaty
interpretation and their resolution will remain rmly in the realm of
diplomacy.
265
Conversely, the possibility of outside interpretation should
262
See, e.g., Fuad Zarbiyev, Judicial Activism in International Law—A Conceptual Framework and
Analysis, 3 J.
INT’L DISP. SETTLEMENT 247, 248 (2012) (“[T]he law of international litigation is still
governed by the founding principle that ‘no State can, without its consent, be compelled to submit
its disputes with other States either to mediation or to arbitration, or to any other kind of pacic
settlement’.” (quoting Status of Eastern Carelia, Advisory Opinion, 1923 P.C.I.J. (ser. B) No. 5, at
27 (July 23))).
263
See BROWNLIE, supra note 6, at 630 (“Obviously the parties have competence to interpret a
treaty, but . . . [t]he treaty itself may confer competence on an ad hoc tribunal or the International Court.”).
264
See, e.g., Fullling Our Treaty Obligations and Protecting Americans Abroad: Hearing Before the
S. Comm. on the Judiciary, 112th Cong. 5-7 (2011) (statement of Patrick F. Kennedy, Under Secretary
for Management, U.S. Department of State) (arguing for the urgent passing of the Consular
Notication Compliance Act in order to ensure compliance with the Vienna Convention on
Consular Relations as necessary to ensure reciprocal treatment of citizens, to avoid “jeopardiz[ing]
. . . collaboration in many areas,” and as “essential to [the United States’] leading position as a Nation
that respects the rule of law”).
265
The New START Treaty serves as a potential example of this dierence. The treaty does
not confer jurisdiction on any international body, although it does create a Bilateral Consultative
Commission to oversee the controls outlined in the treaty and “resolve questions relating to
compliance.” See New START Treaty, supra note 20, art. XII (establishing the Bilateral Consultative
Commission “[t]o promote the objectives and implementation of the provisions of this Treaty”); id.,
Protocol, pt. 6, §§ I-II (establishing the authority and composition of the Commission, which is
made up of representatives of both state parties and is thus arguably a diplomatic body). The
impossibility of interpretations external to the United States and Russia may provide an additional
explanation for statements made in the Senate ratication hearings asserting that the controversial
missile-defense language in the preamble imposed no legal obligations.
1336 University of Pennsylvania Law Review [Vol. 164: 1281
motivate states to pay close attention to the preamble and what goes into it,
as its potential to exert substantive legal power combined with the unruly
nature of object-and-purpose analysis can have far-reaching consequences.
2. Harnessing the Preamble
Given their legal potential and the uncertainty surrounding their
interpretation, preambles naturally present negotiators and drafters with
opportunities to harness the power of the preamble by injecting secondary
considerations or imposing limitations on the subsequent provisions of the
treaties. Drafters and negotiators have long used preambles for this purpose in
both cooperative and self-serving ways. On the cooperative end, nations have
been known to make use of the preamble when unable to agree on the exact
form that a desired substantive obligation should take.
266
In a variation on that
theme, preambles may afford an opportunity for the party on one side of the
negotiating table to include a consideration that the other party would not
accept as a separate provision. For the party on the other side, integration of
such a consideration in the preamble thus represents a chance to make a
concession.
267
Where such an exchange occurs between nations having an equal
understanding of its nature and implications, it is more or less cooperative.
But where nations are not equally sophisticated, are endowed with
unequal resources, or have unequal power at the bargaining table, such
exchanges or unilateral suggestions of language for inclusion in the preamble
may provide an opportunistic party with a possible upper hand. Arguably, the
history of BITs and the investor-friendly rights regime, to which developing
nations found themselves subjected through those treaties despite their
probable lack of intent to enter into such obligations, reects a similar
pattern.
268
The critical responses to the broad investor-friendly
interpretations of the FET language included in BIT preambles, however,
cast doubt on whether developed nations could realistically have expected
such investor-friendly interpretations ex ante when including the relevant
266
See Suy, supra note 14, at 260 (“Il peut arriver que, n’ayant pas pu se mettre d’accord sur la
formulation précise de leurs engagements, les parties aux négociations aient trouvé une formule moins
contraignante et l’aient insérée dans le préambule—celui-ci ayant, dans leur optique, une valeur moins
contraignante . . . .” (It could be that, having been unable to agree on the precise formulation of their
undertakings, the parties to the negotiations settle on less restrictive language to be inserted into the
preamble, which, in their view, has less binding effect . . . . (author’s translation))).
267
John Kerry alluded to this tactic in the context of the New START Treaty, saying that the
language in question allowed the U.S. to “tip[] [its] hat . . . without giving anything away.” See supra
note 26 and accompanying text.
268
See Poulsen, supra note 180, at 148 (positing that many developing nations entered into BITs
because they were eager to attract foreign capital without understanding the obligations they were
accepting, pushed by more developed countries who told them such agreements were “crucial” to
doing so).
2016] Preambles in Treaty Interpretation 1337
language in their preambles.
269
Still, whether those nations sought such
investor-friendly interpretations prospectively or retrospectively, the fact that
these interpretations were given underscores the possibility for savvy
negotiators to include favorable language in preambles in the hopes that it
will go initially unnoticed and then eventually be interpreted in their favor.
This door can swing both ways. Indeed, nations fooled by inattention to
a preamble may “learn[] from [their] experience” and seek to harness the
preamble for their own purposes.
270
In the aftermath of the investor-friendly
BIT interpretations, nations began taking this approach by including
references to their regulatory abilities in areas such as the environment and
labor.
271
Andrew Newcombe, in an article calling for the BIT regime to
promote sustainable development, notes with approval that the “new
generation of [BITs] has started on this path by drafting preambles that
reect sustainable development concerns.”
272
In the BIT context more
generally, inclusion of such language in preambles could serve not only to
preserve nations’ abilities to enact generally applicable legislation for their
own interests, but also to remedy the often-criticized “asymmetry of
obligations” imposed by BIT regimes.
273
This x could ostensibly go beyond
preserving nations’ abilities to regulate, through language indicating that
protection of investments is conditioned on those investments’ compliance
with certain basic values.
No matter the circumstances and intent behind such attempts to harness
treaty preambles’ power, such eorts eectively remain a gamble. The
uncertainty arising from the elements of textual interpretation and object-
and-purposes analysis that come with the territory of treaty preambles mean
that the eects will be hard to predict, depending both on the actual drafting
and implementation of those eorts and the disposition of the tribunal tasked
with interpreting them. But nations would be wise to pay close attention—
whether oensively, defensively, or cooperatively—to such opportunities
when negotiating and drafting treaties.
269
See supra subsection III.B.2 (describing the criticism engendered by investor-friendly
interpretations of preambular references with regard to the FET standard).
270
See Gordon, supra note 197, at 13 (characterizing recent alterations to BIT preamble
language as motivated by a desire to “lower the risks that arbitration under the agreements will be
used in ways that were not intended by the parties to the agreements”).
271
See supra subsection III.B.3.
272
Newcombe, supra note 2, at 407.
273
See id. at 365-66 (describing this asymmetry in terms of the fact that BITs “impose
obligations on host states with respect to investments and investors . . . [but impose] no
corresponding international obligations . . . on foreign investors in the operation of investments . . .
to ensure [they] comply with standards of conduct in their operations abroad”).
1338 University of Pennsylvania Law Review [Vol. 164: 1281
3. Taming the Preamble
Conversely, in certain situations parties may have a shared interest in
controlling the preamble and precluding the possibility of undesired
interpretations of its language and legal eect. Such an interest may arise
when the parties perceive the treaty as being particularly critical, as in the
case of the U.N. Charter following the end of World War II.
Eorts to tame the preamble should presumably strike at the two sources
of uncertainty in preambular interpretation: textual interpretation and
object-and-purpose analysis. Several paths exist to reduce the range of
possible interpretations arising from textual analysis. One approach that may
seem ideal, but which is likely dicult to realize in practice, is to focus on
quality drafting through textual precision and harmonization of preamble
terms with the subsequent articles. In other words, this path would attempt
to avoid the poor drafting noted by the I.C.J. in Arbitral Award of 31 July 1989
and the consequence of the tribunal being unable to arrive at what, it was
suggested, was the proper result, due to limits imposed by the textual terms
of the treaty.
274
Alternatively, drafters could focus on the numbered articles of
the treaty, reducing the amount of content in the preamble in an effort to avoid
any misinterpretations. Taken to the extreme, negotiators could dispense with
the preamble altogether, breaking with tradition and shifting any absolutely
necessary content to the treaty’s operative provisions, although such an
approach may risk reproducing the very problem it intends to solve.
275
Another approach would have treaty drafters attempt to take the reins of
the unruly object-and-purpose analysis. The tendency of treaty interpreters
to direct their gaze to the preamble when conducting object-and-purpose
analysis presents a problem for treaty drafters because preambles traditionally
also contain language that does not reect object and purpose. Arguably, this
is true of the references to “stability” that produced the investor-friendly
FET standards in the BIT context.
276
One solution, therefore, is to expressly
state or restate the object and purpose of the treaty in order to preclude mere
considerations or motivating factors mentioned in the preamble from being
elevated to statements of object and purpose when they are not so intended.
The U.N. Charter eectively takes this approach, diverting the
interpreter’s focus from the preamble by intentionally repeating its language
274
See supra notes 228–229 and accompanying text (noting the Court’s dissatisfaction with the
drafting of the arbitral agreement as expressed by the majority opinion and by two judges in separate
concurring opinions).
275
Interpreters’ response to a novel form of treaty might ultimately reproduce the uncertainty
that the new form intended to address. Moreover, moving content to the substantive provisions
arguably brings this issue full circle because of the relative agreement about the importance of a
treaty’s operative provisions to its interpretation.
276
See supra subsection III.B.2.
2016] Preambles in Treaty Interpretation 1339
in later provisions. The Charter’s preamble underwent a fascinating
transformation during negotiations, evolving rst from a non-existent to a
purely ceremonial text, before eventually becoming an element of the treaty
that was perceived to have a “legal validity” equal to all other provisions of
the treaty.
277
In practice, however, its actual application in terms of setting
forth the object and purpose of the Charter has been limited, largely because
the Charter also includes explicit “Purposes” and “Principles” provisions that
reiterate and expand upon the preamble’s language.
278
Indeed, decades after
the Charter was concluded, certain participants in its drafting noted the
institutional preference to rely primarily on the mentions of human rights in
the Charter’s first and fifty-fifth articles, as opposed to in its preamble.
279
This
preference is also evident in the early, unsuccessful attempts of U.S. courts to
invoke the human rights language of the Charter for civil rights purposes.
280
In both contexts, it is the repetitive—or intentionally redundant—nature
of the preamble’s and operative provisions’ language that enables such an
approach. The Charter’s drafters recognized the preamble to have equal legal
weight to other parts of the treaty text. But by repeating and expanding upon
its statements of object and purpose in later provisions, they lifted from it the
burden of doing heavy legal work. This approach of intentional redundancy
277
Compare Christof Heyns, The Preamble of the United Nations Charter: The Contribution of Jan
Smuts, 7 A
FR. J. INT’L & COMP. L. 329, 334 (1995) (recounting that originally no preamble was
envisioned for the U.N. Charter, but that a preamble project was commenced after Jan Smuts
successfully argued for “an entirely new rst Chapter, which would state our human faith in the
ideas for which we had fought and which we considered basic”), with L
ELAND M. GOODRICH,
EDVARD HAMBRO & ANNE PATRICIA SIMONS, CHARTER OF THE UNITED NATIONS:
COMMENTARY AND DOCUMENTS 20 (3d rev. ed. 1969) (recalling that the preamble was considered
“a customary part of a treaty” but also one that “serves the purpose of dening in general terms the
purposes which the parties have in view”), and Katarina Månsson, Reviving the ‘Spirit of San
Francisco’: The Lost Proposals on Human Rights, Justice and International Law to the UN Charter, 76
N
ORDIC J. INT’L L. 217, 224 (2007) (observing that, by the nal draft of the Charter, “[i]t was indeed
stressed that there were no grounds for supposing that the Preamble has less legal validity” than the
other provisions of the treaty).
278
See GOODRICH, HAMBRO & SIMONS, supra note 277, at 21 (“[I]n the discussions and
decisions of United Nations organs relatively little use has been made of [the preamble] . . . . [A]ll
that one can say with some certainty is that the preamble reinforces, without being essential to, the
propositions being advanced.”). Compare U.N. Charter pmbl. (mentioning its “ends” and
“principles”), with id. ch. 1, art. 1 (expanding on the “purposes” mentioned in the preamble), and id.
ch. 1, art. 2 (setting forth the “principles” underlying the Charter).
279
See GOODRICH ET AL., supra note 277, at 21 (making this observation slightly over two
decades after the Charter was created and entered into force).
280
See, e.g., Fujii v. State, 217 P.2d 481 (Cal. Dist. Ct. App. 1950) (providing an example of a
domestic court invoking the U.N. Charter for human rights purposes and, after briey citing the
Preamble’s general reference to human rights, focusing on the more detailed language of articles 1,
2, 55 and 56), rev’d on other grounds, 38 Cal. 2d 718 (1952); see also Oyama v. California, 332 U.S. 633,
649-50 & n.4 (1948) (Black, J., concurring) (citing the U.N. Charter, and specically article 55, as
an “additional reason[]” why a Californian law discriminating against Japanese persons was invalid).
1340 University of Pennsylvania Law Review [Vol. 164: 1281
is one that could be replicated by treaty drafters today to tame the
object-and-purpose analysis mandated by the VCLT.
4. Invoking the Preamble in Disputes
Beyond the negotiation and drafting process, the recent instances of
tribunals giving preambles expansive weight in their object-and-purpose
analysis in the WTO and BIT contexts naturally invites nations to invoke
preambles in their favor in future international disputes. For example,
although the line of decisions in the investment treaty context discussed supra
in Part III slants heavily in favor of investors, there is no reason that
preambles could not be made to work in nations’ favor as well. The recent
trend of including in BIT preambles additional norms that coexist alongside
the promotion of investment indicates that states have recognized this fact.
The act of relying on such language in the case of a treaty dispute constitutes
the other half of this equation, following through with the groundwork laid
in the preamble.
The case of Philip Morris Brands Sàrl v. Oriental Republic of Uruguay
currently before an ICSID tribunal presents an example of a nation trying to
do just that. The dispute, brought under the Swiss–Uruguayan BIT, concerns
claims by Philip Morris’s Swiss subsidiary against Uruguay in response to its
labelling and plain-packaging ordinances designed to discourage smoking.
281
Philip Morris claims that the ordinances violated Uruguay’s obligations under
the BIT by limiting its right to use its trademarks and causing substantial
losses and a reduction in value to its investment in that country.
282
For its
part, Uruguay argued that ICSID had no jurisdiction over the dispute, relying
in part on language in the BIT’s preamble as a sign of the treaty’s object and
purpose.
283
Specically, the nation claimed that Philip Morris’s activities were
not an investment under either the ICSID Convention or the BIT, citing
language in the preambles of both to inform the object and purpose of each:
Uruguay referred, rst, to “the need for international cooperation and
economic development” in the ICSID Convention’s preamble, and then to
the “economic development process” and “substantial[] contribut[ions] to the
development of the country” in the BIT’s preamble.
284
Because Philip
281
Philip Morris Brands Sàrl v. Oriental Republic of Uru., ICSID Case No. ARB/10/7,
Decision on Jurisdiction, ¶¶ 1-10 (July 2, 2013) http://www.italaw.com/sites/default/les/case-
documents/italaw1531.pdf [https://perma.cc/6R9P-UWGK].
282
Id. ¶¶ 7-9.
283
Id. ¶¶ 176-180.
284
Id. ¶ 179; see also International Convention for the Settlement of Investment Disputes
between States and Nationals of Other States, pmbl., Mar. 18, 1965, 17 U.S.T. 1270, 575 U.N.T.S.
159 [hereinafter ICSID Convention]; Accord entre la Confédération suisse et la République
2016] Preambles in Treaty Interpretation 1341
Morris’s economic contributions were far outstripped by the costs of their
adverse eects on public health, the company’s “interests and activities [were]
not investments” under either the ICSID Convention or the relevant BIT.
285
The analogy to the FET standard that was the subject of the disputes discussed
supra is clear. Like FET, “investment” is a term left undefined by the ICSID
Convention, although the Swiss–Uruguayan BIT does provide a broad asset- and
category-based definition.
286
And like the investors in those earlier cases, here
Uruguay pointed to preamble language suggestive of object and purpose to further
define a term used in the provisions of the BIT in a way favorable to its position.
But the tribunal rejected Uruguay’s argument, finding that that the language
Uruguay cited could “reasonably be understood in different ways” and was “too
general to permit the drawing of definitive conclusions . . . .”
287
Uruguay’s attempt, while unsuccessful, serves as an example of eorts that
if continued might lead tribunals to clarify or rethink the role of preambles
in treaty interpretation. It has been argued that the tribunal’s determination
was correct and unsurprising, given that “most preambles are drafted in a
general manner and are therefore susceptible to varied interpretations . . . .”
288
Yet commentators also lamented the fact that, “like many prior tribunals, this
one did not oer guidance on the role that preambles should play as an aid in
interpretation.”
289
Seen in light of both of the investor-friendly FET
standards that were drawn from preambles and the facts and relevant
preamble language in Philip Morris, Uruguay’s argument was not
unreasonable. Indeed, while the tribunal may not have provided the desired
guidance on the question of treaty preambles generally, its conclusion did not
necessarily reject the argument outright as implausible. Rather, it arguably
acknowledged that too much uncertainty existed about the cited preambles
and their language to make the argument decisive. As time unfolds, it will be
interesting to see how tribunals react to arguments invoking the language of
more recent BITs that integrate stronger statements of additional
considerations other than investment protection into their preambles. Their
responses may provide an additional and useful data point for understanding
the relative inuences on tribunals of textual interpretation, object-and-
purpose analysis, and preambles themselves.
orientale de l’Uruguay concernant la promotion et la protection réciproques des investissements,
Switz.–Uru., pmbl., Oct. 7, 1988, 1976 U.N.T.S. 389 [hereinafter Switz.–Uru. BIT].
285
Philip Morris, ICSID Case No. ARB/10/7, Decision on Jurisdiction, ¶ 182.
286
ICSID Convention, supra note 284, art. 25(1) (conferring jurisdiction only over disputes
involving an “investment”); Switz.–Uru. BIT, supra note 284, art. 1(2) (dening investments to
include “toutes les catégories d’avoirs” and providing a non-exhaustive list of categories included in
the denition).
287
Id. ¶ 201.
288
Sabahi & Duggal, supra note 15, at 72.
289
Id.
1342 University of Pennsylvania Law Review [Vol. 164: 1281
C
ONCLUSION
The preamble occupies an uncertain position in treaty practice, pulled in
multiple directions by the forces of doctrine and practice. On one hand, the
preamble is unquestionably a part of the treaty it introduces, being both
subject to and the product of negotiations between state parties and existing
within the four corners of the treaty text. As a matter of logic, it seems
inherently important as the statement that sets the stage for all that follows.
On the other hand, evidence suggests a not-uncommon perception of
preambles as standing apart, subjugated to the treaty’s later provisions
whether because of its historical origins, its often ceremonial structure and
language, or the inuence of domestic approaches to the preamble that serve
to check its legal power in other contexts. In practice, this perception may
inuence the approaches not only of parties tasked with interpreting treaties,
but also of those who negotiate them and draft them. But the preamble’s
association with object and purpose swings the pendulum the other way, with
longstanding practice making the preamble the de facto and go-to source for
these statements sought by interpreters and often used to decisive eect.
The primary argument of this Comment is that the VCLT has placed no
limits on preambles’ legal power. In crafting their treaties, nations may have
their reasons for not entrusting the preamble with substantive provisions—
tradition, notions of propriety, and uncertainty foremost among them—but
there exists no rm rule to prevent them from doing so. Rather, the VCLT
provides the preamble with two routes in which to exert its inuence: rst,
as an integral part of the holistic textual analysis of the treaty, and second, as
the standard repository for statements of object and purpose.
The examples cited by this Comment make clear that, in the half-century
of practice applying the VCLT’s interpretive doctrine, important instances of
tribunals deeming preambles to possess substantial legal and interpretive
weight have arisen, particularly in the recent contexts of the WTO and
international investment disputes. Whether these outcomes constitute
exceptional cases, are a function of the specic treaties at issue, or denote a
trend of increasing receptiveness to preambular power remains unclear. The
variety of responses to preambles visible across tribunals and elds of
international law underscores the diculty in isolating and dening concrete
approaches to these instruments, which sit at the conuence of issues arising
from treaty drafting and negotiation, textual interpretation and object-and-
purpose analysis.
This uncertainty warrants an increased attention to and focus on
preambles by participants in and observers of treaty practice alike. For legal
scholars, it presents an intriguing puzzle worthy of further study with
consequential doctrinal and normative implications. For treaty interpreters,
2016] Preambles in Treaty Interpretation 1343
it provides an opportunity and impetus to reevaluate their preconceived
notions of preambles in light of the specic texts before them. And most
importantly and presently, for nations entering into treaties, it provides a
strong motive to carefully consider the opportunities and perils that the
preamble may present and to recognize the possible approaches they might
adopt toward preambles moving forward.
* * * * *
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