Preambles in Treaty Interpretation

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The New START Treaty debate provides a glimpse of what is a general state of uncertainty surrounding preambles, the roles they should play, and the roles they do in fact play in international law and treaty interpretation. The diverse views espoused by participants in the New START debate are notable for three reasons: First, they represent both ends of the spectrum of possible views on the question. Second, the individuals expressing those views are in many cases experienced players in the realm of foreign relations. And third, while both extremes of the debate can be understood as matters of common sense, neither seems to correspond to the approach of the VCLT or to the actual conclusions of international tribunals that have wrestled with the question of preambles. In short, their disagreement begs the question: Do treaty preambles in fact matter?

This Comment argues that the answer must be in the affirmative. Contrary to the propositions on display in the New START debate, there is quite simply no basis for a broad statement that preambles, by their very nature, are legally inconsequential. Customary international law, as embodied in the VCLT, supports this conclusion—although it does not provide clear guidance. Nevertheless, in practice, preambles are a frequent subject of discussion among treaty makers, parties to disputes, and adjudicators alike. This state of affairs naturally raises an additional query: To what extent do treaty preambles matter? This Comment aims to construct an answer to this question.

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