Thread by @hhesterm

Oh my. Maybe it is time to explain how treaties work, with particular regard to fudge. Because this is just wrong. (thread)

https://twitter.com/bbclaurak/status/1417848704405549056

Let's start off with some very very very basic facts: treaties are instruments concluded by two or more parties. The Vienna Convention on the Law of Treaties actually defines them (I'll spare you details)

Treaties are binding. Art. 26 VCLT. Pacta sunt servanda.

So how do you handle fudge? Let's start with some disappointing basics again: every legal rule blurs at the edges. Event the clearest one. That is normal - and not a revelation.

Funny anecdote: The Prussians - to the surprise of no-one - once tried to actually lay down rules in detail and without so much blurriness. Their "Allgemeines Preußisches Landrecht" ran over 19000 articles. Needless to say, that might have made it more blurry.

But apart from the inevitable vagueness inherent in every norm, both treaties and statutes often contain compromise language. Fudge. Both sides didn't get their language through and so settled on additional language.

There are, by the way, different ways to handle this is a treaty drafter: you can provide for a Joint Committee to deal with issues . You can decide not to include an issue in the treaty. Or you put in language glossing over the problem.

You will note that here some issues WERE left to the Joint Committee. Of course, strangely, rather than yelling gleefully "fudge" we yelled mournfully "the horror, an institution". Maybe we just like yelling, though.

So what happens when there's language that is unclear? That's where treaty interpretation kicks in. How do you interpret treaties? Let us turn to our beloved Vienna Convention.

This is the basic rule of treaty interpretation.

Ordinary meaning, context, object and purpose. (Purposive interpretation, yes, yes, I know).

Multilingual treaties, by the way, need to take into account all of the authoritative languages and the treaty is then presumed to have the same meaning. Multilingual treaty interpretation is great fun.

But what about the history of the provision - earlier drafts and such? Those (we snooty internationalists call them travaux préparatoires even if my autocorrect cannot quite believe it) - are merely supplementary means of interpretation.

When it comes to the NI Protocol some provisions are quite easy to interpret - Art. 5(4) for example provides that a list of roughly 30 pages of EU legal documents apply. That's not really fudge.

Other provisions are far harder to understand and make sense of. Some parts of Art. 5 are a bit of a nightmare.

Some provisions actually appear contradictory. Sadly, though, this is not entirely unusual. Take one of my favourite provisions: Art. 8(1) TRIPS Agreement.

Now the first half reads like a right to do something, doesn't it? Then you read "provided that" - and are left wondering what the point of it was...

And TRIPS even has more to offer: Art. 28(1)(a) seems to make it mandatory to give patent holders a right to block imports. But then there's a footnote. Which makes the right subject to Art. 6. Which, sort of, seems to take that away again.

None of this allows for interpretation by one side.

Where dispute settlement clauses are in the treaty, this can at times mean delegating the interpretation to dispute settlement.

CAVEAT (no legal tweet without caveat). This, of course does not mean that in practice any and all of the following does not happen:

a) parties breaching agreements with or without being challenged
b) parties changing agreements

It also does not mean that any given treaty is perfect. Of course not.

Nor does it mean that there aren't horrible treaties. This is not a thread about how a treaty is wonderful because it is a treaty.

(Nor is this a thread about how I like everything about the NI Protocol - it's a complex situation with LOTS of difficulties and problems that need to be resolved, which requires a cooperative approach).

(So no, I don't like everything about the NI Protocol - but I don't think you'll find anyone who does)