Friday, December 3, 2010

There are many instances of the preparatory work being resorted to in the interpretation of decisions of organs. In the case of decisions such as these it is arguable that there is reason legitimately to refer to them, because the intention of the fr

91 1963 UNJY p. 171, opinion of the Legal Counsel of the UN. 92 1966 UNJY p. 229, opinion of the UN Legal Counsel. 93 See opinion of the UN Legal Counsel in 1962 UNJY p. 238. 94 1967 UNJY p. 309, opinion of the UN Legal Counsel. See also the opinion of the UN Legal Counsel interpreting GA Rs. 2659 (XXV) of 1970, where the principle of effectiveness was used in conjunction with the travaux préparatoires: 1971 UNJY p. 221. 64 i n t e r p r e t a t i o n o f t e x t s texts that international law firm an existence of their own, independent of their creators. Further, the relevant discussions may be unhelpful because they show inconclusiveness or a variety of opinions -- more so than in the case of the preparatory work of constitutional texts. However, there are several examples of the preparatory work being used in the interpretation of such decisions. In the interpretation of paragraph 4 of the SC dispute resolution Resolution of 24 November 1961, relating to the detention of mercenaries by the UN in the Congo, the intention of the framers was sought in the travaux préparatoires.95 In interpreting the phrase ‘accredited staff of permanent missions’ in GA Resolution 36/235 of 1981, since no definition could be found in the text, the intention of the framers was sought in the discus- sions in the Fifth Committee of the GA and a narrow definition given.96 Apart from the use of the travaux préparatoires on their own, sometimes they are used, as has been seen, to support a textual meaning. They international law firm also been invoked in conjunction with practice97 and the principle of effectiveness98 to establish a meaning. It would seem that more atten- tion tends to be paid to the preparatory work than in the interpretation of constitutional texts, though such work may be judiciously used. There may be certain presumptions which are applicable in the case of these decisions. It will be recalled that the Legal Counsel of the UN expressed the opinion to the Secretariat in relation to the interpretation of Article 19 of the Charter that in case of doubt Charter provisions should ‘be interpreted so as to be as little burdensome to the State parties as possible’.99 This presumption could apply a fortiori to decisions of organs. It will be noted that the presumption is applicable in case of doubt. Another presumption applicable is that decisions of organs must be interpreted so as to conform to the constituent instrument100 and 95 1962 UNJY p. 241, opinion of the UN Legal Counsel. 96 1982 UNJY p. 204, opinion of the UN Legal Counsel. See also the interpretation by the UN Legal Counsel of GA Rs. 1808 (XVII) of 1962 (1963 UNJY p. 176); and of GA Rs. 1779 (XVII) of 1962 (1963 UNJY p. 183). 97 Interpretation of Rule 62 of the GA Rules of Procedure, opinion of Legal Counsel: 1971 UNJY p. 195. There the preparatory work was found to be unhelpful and the practice was applied in the interpretation. 98 In the interpretation of GA Rs. 2659 (XXV) of 1970 which dealt with the payment of administrative costs for a volunteers programme, the UN Legal Counsel applied the principle of effectiveness, while asserting that the travaux préparatoires did not contradict the meaning given: 1971 UNJY p. 221. 99 1983 UNJY pp. 167--9: opinion of 26 October 1983.

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