Immunities and Criminal Proceedings (Equatorial Guinea v. France) - ‘통상적 의미’를 찾아서 -

A great number of cases brought before international courts and tribunals involve some problem of treaty interpretation. Articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT) have been repeatedly declared to reflect customary rules of treaty interpretation and have regulated the interpretation of treaties in international adjudication. In particular, article 31(1) of the VCLT provides that 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. However, it is not always easy and simple to apply those rules of treaty interpretation in practice. Despite uncomplicated factual background and applicable law, the case between Equatorial Guinea and France clearly shows that the application of the rules of treaty interpretation in international adjudication is sometimes not as simple as the case itself might be. As required by article 31(1), a treaty should be interpreted in accordance with the ordinary meaning of its terms. In this case, however, the majority considers the relevant provisions of the Vienna Convention on Diplomatic Relations (VCDR) in their ordinary meaning to be of little assistance and thus does not attempt to interpret them. Instead the majority turns to the context of those provisions and the VCDR’s object and purpose, and produces the result of treaty interpretation. The context of a treaty and its object and purpose are designed to be used in elucidating the ordinary meaning of treaty provisions, while the treaty should be interpreted according to that ordinary meaning. It can be said therefore that the majority interprets the VCDR in accordance not with a criterion but with a means of finding it. It would be understandable to rely on the context of a treaty and its object and purpose if the treaty does not contain any relevant provisions whose ordinary meaning should be elucidated. It is not an interpretation in good faith, however, if the relevant provisions do exist in a treaty and there is no attempt to find their ordinary meaning. Furthermore, interpretation in accordance not with ordinary meaning but with context, object and purpose could be to revise the treaty or to read into it what it does not contain. Therefore, the proper work of treaty interpretation should concentrate on finding the ordinary meaning of the relevant provisions whenever they exist. In the case between Equatorial Guinea and France, the interpretation in accordance with the ordinary meaning of the relevant provision, that is article 1(i) of the VCDR defining the “premises of the mission”, suggests that the diplomatic status of a building as “premises of the mission” should be determined by the test of “used for the purposes of the mission”. There could be disagreement as to whether an intended use of premises for the purposes of the mission is sufficient to benefit from protection under article 22 of the VCDR. In any event, the VCDR cannot be interpreted to grant France, the receiving State, a power to object to Equatorial Guinea's designation of the building in question as premises of its diplomatic mission.