Uncloseting Travaux

Abstract

We cite travaux preparatoires to resolve ambiguity. Because (as Lauterpacht wrote) international law ‘knows no gaps,’ we learn from day one to ‘fix’ uncertainty with travaux. After all, treaties have clauses that mean things. A clause can mean many things while we aren’t looking, but it must eventually conform to one, ‘common’ meaning, and not flaunt its multiplicity in our faces. A clause that resists definition ‘cannot... be accepted, because it would amount to... an uncertain and precarious situation’ (Jurisdiction of the Danube, [27]). Therefore, again quoting Lauterpacht, ‘it is the right and duty’ of the international legal community to ‘straighten out’ such clauses. Otherwise, they do not matter. Otherwise, we do not matter.

But what is travaux? The ILC avoided defining it beyond ‘relevant evidence’ (ILC 1966, 223), and subsequent international practice draws no clear lines. Indeed, even drawn lines can sometimes be travaux (Frontier Dispute, [103]) – but not always (Indonesia/Malaysia, [57]). Travaux’s implicit boundaries often become shorthand for a limited history curated by/for White tenured men. Does this do what travaux should? At what cost? How could a queer approach better understand the power of labels to emancipate/confine, and the potential of ambiguity to empower/erase?

Travaux is made of contradictions. Its legal basis refuses to name it, it is subordinate but ever-present, it is ambiguous but ‘fixes’ ambiguity. It’s a queer mess. But accepting travaux’s ambiguities without ‘fixing’ them unveils its potential as a queer method. This chapter explores travaux across international caselaw, tracing its fluidity, what it includes, and who it erases. By ‘celebrating the mess’ of travaux, we expand the sources we can see, the meanings we can know, and the subversive impacts we can have as international legal interpreters.

Keywords: travaux preparatoires, international law, treaty interpretation, law and history, queer studies