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Against Hortatory Language in Treaties: Lessons for International Law from the Battle over Article 17bis of the U.S./EU Air Transport Agreement

This article analyses a question of first impression in international treaty negotiation and interpretation – should hortatory language be included in international agreements and what are the consequences if it is? The article relies on a recent international controversy concerning the legal effect of a labour rights provision in the 2007/2010 air services agreement between the United States and the European Union to show how compromiseoriented hortatory language can be a tripwire that upsets the treaty relations of otherwise well-intentioned States. The article includes a detailed analysis of a ruling of the United States Circuit Court of Appeals for the District of Columbia on the contested language in the US-EU agreement, as well as of related legal opinions issued by legal counsel in the US Departments of State and Transportation. The article breaks new ground in proposing a three- part holistic approach to the interpretive principles in Articles 31 and 32 of the Vienna Convention of the Law of Treaties, thereby offering a more flexible alternative to the “linearity” of traditional approaches to the Vienna rules.

Vienna Convention, air transport agreement, EU-US ATA, international agreement, hortatory norms

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