| I. | Substantive International Law - First Part |
| 7. | LAW OF TREATIES |
| 7.8. | Interpretation |
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Territorial Dispute
(Libyan Arab Jamahiriya/Chad),
Judgment, I.C.J. Reports 1994, p. 6
[pp. 21-22] 41. The Court would recall that, in accordance with
customary international law, reflected in Article 31 of the 1969 Vienna
Convention on the Law of Treaties, a treaty must be interpreted in good faith in
accordance with the ordinary meaning to be given to its terms in their context
and in the light of its object and purpose. Interpretation must be based above
all upon the text of the treaty. As a supplementary measure recourse may be had
to means of interpretation such as the preparatory work of the treaty and the
circumstances of its conclusion.
[p. 25-26] 52. Reading the 1955 Treaty in the light of its object
and purpose one observes that it is a treaty of friendship and good
neighbourliness concluded, according to its Preamble, "in a spirit of
mutual understanding and on the basis of complete equality, independence and
liberty". The parties stated in that Preamble their conviction that the
signature of the treaty would "serve to facilitate the settlement of all
such questions as arise for the two countries from their geographical location
and interests in Africa and the Mediterranean", and that they were "Prompted
by a will to strengthen economic, cultural and good-neighbourly relations
between the two countries". The object and purpose of the Treaty thus
recalled confirm the interpretation of the Treaty given above, inasmuch as that
object and purpose led naturally to the definition of the territory of Libya,
and thus the definition of its boundaries. Furthermore the presupposition that
the Treaty did define the frontier underlies Article 4 of the Treaty, in which
the parties undertake to take "all such measures as may be necessary for
the maintenance of peace and security in the areas bordering on the frontiers".
It also underlies Article 5 relating to consultations between the parties
concerning "the defence of their respective territories". More
particularly Article 5 adds that "With regard to Libya, this shall apply to
the Libyan territory as defined in Article 3 of the present Treaty". To "define"
a territory is to define its frontiers.
[p. 28] 56. It is clear from these minutes that the Libyan Prime
Minister expressly accepted the agreement of 1919, the "implementation"
of the agreement to be left "to the near future"; and in this context,
the term "implementation" can only mean operations to demarcate the
frontier on the ground. The Prime Minister spoke also of an agreement on "demarcation",
which presupposes the prior delimitation - in other words definition - of the
frontier. Use of the term "demarcation" creates a presumption that the
parties considered the definition of the frontiers as already effected, to be
followed if necessary by a demarcation, the ways and means of which were defined
in Annex I.
[pp. 64-65 S.O. Ajibola] 53. ... The special rule of interpretation
of treaties regarding boundaries is that it must, failing contrary evidence, be
supposed to have been concluded in order to ensure peace, stability and
finality. Many multilateral conventions have provisions safeguarding and
ensuring stability and finality with regard to boundary treaties. An example of
such treaties is the 1978 Convention on the Succession of States in Respect of
Treaties (which I referred to above) especially Article 11 therein, which
stipulates that a succession of States does not alter or affect a boundary
established by a treaty, and neither does it affect the obligations and rights
established by such a treaty when it involves the issue of boundaries.
Similarly, in the 1969 Vienna Convention on the Law of Treaties, Article 62,
paragraph 2 (a), provides:
"A fundamental change of circumstances may not be invoked as a ground
for terminating or withdrawing from a treaty
| (a) | | | if the treaty established a boundary." (Emphasis
added.)
|
54. Furthermore, Article 62, paragraph 2, of the 1986 Vienna Convention on
the Law of Treaties between States and International Organizations or between
International Organizations also created an exemption regarding boundary
treaties by stating that:
"A fundamental change of circumstances may not be invoked as ground for
terminating or withdrawing from a treaty between two or more States and one or
more international organizations if the treaty establishes a boundary."
(Emphasis added.)
55. The 1955 Treaty does not exclusively deal with the issue of boundaries,
nevertheless it is common ground that it is partially a boundary treaty in view
of Article 3 of the Treaty and Annex I thereto. Failing proof to the contrary,
this Article must be viewed as a provision inserted by both parties to establish
and ensure some degree of stability and finality with regard to their boundary.
[p. 74 S.O. Ajibola] 88. In the interpretation of treaties,
preparatory work and the circumstances of their conclusion are considered as
secondary or supplementary means, either for confirming the primary meaning or
for determining the same when other means of interpretation lead to results
which are either obscure, or ambiguous, manifestly absurd or unreasonable. This
is stated in Article 32 of the Vienna Convention. For actually determining the
meaning, I doubt that there is any need at all to resort to the travaux,
firstly because the primary means of interpretation do not leave any residue of
ambiguity or absurdity, and secondly because the voluminous items of
correspondence, maps, negotiation documents, reports and parliamentary debates
presented to us as forming part of the travaux préparatoires are
themselves frequently subject to conflicting interpretations.
