조약법상 준비문서(Travaux Préparatoires)의 지위

The Status of Travaux Préparatoires in the Law of Treaties

This study aims to examine the substantial status of the Vienna rules of treaty interpretation (Articles 31 and 32 of the Vienna Convention on the Law of Treaties) as a norm of international law and reflect upon the value and role of preparatory work, or travaux préparatoires, within the said Vienna rules. It begins with inquiry into the genesis of rules of treaty interpretation from the era of classicism up to the early modern academic discourse of Europe, followed by an overview of different theoretical approaches advocated by Western academics in the early 20th century. The jurisprudence of the Permanent Court of International Law (PCIJ) and certain early decisions of the International Court of Justice (ICJ) are also analyzed in order to understand the status of rules of treaty interpretation in international law prior to the International Law Commission (ILC)’s intervention. The ILC proposed systematic rules of treaty interpretation building on the mainstream academic views as well as the approaches taken by the International Courts. The ILC-drafted rules were finally adopted by the Vienna Conference on the Law of Treaties (1968-1969). It is understood that the Vienna rules are the product of compromise and fusion of existing schools of thought, that is textualism, intentionalism, and teleological view. The ICJ began to accept the Vienna rules in its jurisprudence two decades after adoption of the Vienna Convention: Articles 31 and 32 were gradually recognized by the Court to be the authoritative guide to treaty interpretation in the 1990s, culminating in recognition of Article 31 as reflection of customary international law in 1994, followed by the declaration several years later that Article 32 was also reflective of customary international law. The customary status of the Vienna rules have been repeatedly confirmed by the ICJ’s subsequent judgments and opinions with cumulative reference to its own precedents, starting from the 1994 decision. Looking back on the trajectory of how the Vienna rules emerged and gained its current status, certain narrative could be identified: that is, customary rules of treaty interpretation have been formed through seamlessly continuous, linear development of law from the jurisprudence of the PCIJ to early decisions of the ICJ, integrated by the work of the ILC, leading to final confirmation and recognition by modern practice of the ICJ. A closer examination of each linkage, however, reveals inconsistency, discontinuity or gaps between what was declared to be and what really was: the internal inconsistency of the jurisprudence of the PCIJ; incorrect reference to the PCIJ cases by the early ICJ decisions; lack of any argument or evidence in the identification of customary international law in the ICJ cases, to name a few. In particular, the rise of the Vienna rules to the level of the rules of customary international law could be seen as a typical example of how the ICJ resorted to the technique of assertion, rather than induction or deduction, to identify customary international law in existing treaties, in an inevitable normative attempt to perform its essential judicial functions. There still remains uncertainty as to the basis of assertion of customary character of the Vienna rules as well as its inevitability. In this context, a fundamental question is raised of the genuine status of the Vienna rules: are they obligatory legal rules, or do they exist as a guide for treaty interpretation that is a normative act of fundamentally discretionary character? A critical analysis of the existing discourse on treaty interpretation shows that the Vienna rules function and exist as a guide, rather than strictly binding legal rules, for treaty interpretation. In other words, the Vienna rules are the flexible and practical guide based on the essentially binding legal principle of good faith. This view is consistent with how the rules actually work.