Surprisingly, this addition was met with very little discussion and no
objections. There were 120 states represented at the eleventh session when this
provision was introduced. All the states had an opportunity to speak to this
proposal during the concluding remarks of the ad-hoc committee. None of the
states voiced any concerns about the proposed addition. This silence on behalf of
the States Parties, coupled with the opportunity to speak, makes it reasonable to
conclude that the States Parties acquiesced in the addition of transnational
prevention obligations.
In Sum: Subsequent state practice demonstrates that states have
implemented novel transnational programs since the Protocol came into force.
However (except for perhaps the EU who specifically cite the Protocol as a
reason for acting), we cannot know whether states are acting because they feel
legally obliged to under the Protocol, or for some other reason. Further, the
discussion of this provision at the negotiations of the Protocol is sparse, and does
not confirm nor deny the position of this paper.
Under the general interpretation principles set forth in the Vienna
Convention, Articles 31 and 32, the starting point is the ordinary meaning of the words and phrases.102 If this interpretive method results in ambiguities, the next
stage is to examine subsequent state practice and the travaux preparatoires which
document the negotiations leading up to the conclusion of the agreement. The
plain language of the provision clearly indicates a mandatory transnational
obligation and arguably there is no ambiguity. If there is no ambiguity, there is
no need to resort to subsequent state practice or the negotiations. When these
sources are examined, they do not contradict the interpretation set forth in this
paper. Therefore, the fact that these sources are inconclusive is not determinative.