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2018 | OriginalPaper | Chapter

4. PCIJ/ICJ Practice on Treaty Interpretation

Author : Liliana E. Popa

Published in: Patterns of Treaty Interpretation as Anti-Fragmentation Tools

Publisher: Springer International Publishing

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Abstract

In Chap. 2, I provided an overview of the major theoretical propositions related to the potential ‘fragmentation’ of international law as a result of the proliferation of international judicial bodies which could apply international law differently. Using the insights provided in the second chapter, in the present chapter and in the subsequent ones, I will attempt to empirically verify those propositions from the perspective of treaty interpretation, relying on case law analyses at the PCIJ/ICJ and two major specialised judicial bodies, the ECtHR and WTO, and also on scholarship. Since the 1969 VCLT purported to eliminate the conceptual difficulties related to treaty interpretation, I take into my empirical analysis the moment of the adoption of the 1969 Vienna Convention as a conventional historical point. My assumption is that there is both an internal coherence dimension for treaty interpretation—each individual court (ICJ, ECtHR, WTO) applying coherently and consistently the same (canons) customary rules of treaty interpretation, both prior and after the adoption of the 1969 VCLT—and an external coherence dimension, which is given by the existence of common patterns of treaty interpretation applied by the ICJ, ECtHR, WTO and also by the use of the ECtHR and WTO of the ICJ’s precedents on treaty interpretation. Thus, I provide in this chapter an analysis of the treaty interpretation approaches of the PCIJ/ICJ over the last 90 years, respectively both prior to and post the adoption of the 1969 VCLT. This framework of analysis will be used in the subsequent chapters in order to detect the internal/external coherence of treaty interpretative practice at the ECtHR and the WTO. Based on case law analyses, I show in this chapter that the ICJ’s approaches to interpretation, prior to, and after, the VCLT’s adoption, are consistent with the canons of treaty interpretation, which this Court has greatly developed and applied since its inception. Finally, the case law analysis reveals a preference of the PCIJ/ICJ for holistic interpretation, thus for the use of more rules and methods of interpretation than initially declared, in an interpretative pattern/approach that I termed ‘overbuilding’. I argue that even if a conclusion of a case could apparently be obtained by the ICJ upon one (declared) method of interpretation, the Court does not stop the interpretation but continues with the application of other rules/methods (expressly or implicitly) that eventually lead to the same conclusions. The ICJ develops its process of building/overbuilding the case of interpretation by successive steps (expressly declaring the applicable rules/methods or only suggesting them), each step enhancing the conclusions reached after applying the rule/s and method/s it expressly (or implicitly) stated. The holistic character that the ICJ imprints to treaty interpretation is also reflected in this Court’s tendency to ascribe equal interpretative value to each of the rules of interpretation employed in a given case, since all rules serve in rendering the final decision.

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previous chapter Treaty Interpretation

next chapter Treaty Interpretation at the European Court of Human Rights

International Court of Justice (available at: http://www.icjcij.org/court/index.php?p1=1&p2=1).

Id.

Spiermann (2007), p. 122.

Id.

International Court of Justice, supra note 1. See, e.g., the S.S. Wimbledon case (PCIJ, Ser. A, No. 1, 1923).

Id. In addition, several hundred treaties, conventions and declarations conferred jurisdiction upon the PCIJ over specified classes of disputes.

Id.

Charter of the United Nations (1945) Article 92 of the UN Charter (Chapter XIV) provides: ‘The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter.’

International Court of Justice, supra note 1. The ICJ exercises the advisory form of jurisdiction, and only states may be parties to contentious proceedings. The Court’s authority in cases between states is given by the states concerned. It is thought that of all international judicial bodies, the ICJ is probably the one that still adheres most closely to the consensual paradigm.

Gross (1971), p. 256. The author notes that ‘the experience of the 25 years is otherwise, in the sense that the Court did not become a substitute for the reign of brutal force, although the Court enabled to adjudicate some tension disputes. Neither this Court has occupied a “central” place in the procedures for the settlement disputes.’

Llamzon (2007), pp. 818–819.

Henkin et al. (1999), p. 665. In conformity with Articles 34–36 of the ICJ’s Statute, states can provide such consent in various ways, i.e., by agreements with respect to a particular dispute, through a clause in a treaty by the states parties agreeing to submit disputes arising under the treaty to the ICJ or by making a declaration under so-called optional clause, prospectively recognising the Court’s jurisdiction.

Romano (2006), p. 818.

Irwin (1997), p. 759.

Henckaerts (1993), reviewing Renata Szafarz’s book on the compulsory jurisdiction of the International Court of Justice (Renata Szafarz served as rapporteur of a Working Group set up by the Polish Branch of the International Law Association to draft a Polish declaration accepting the compulsory jurisdiction of the ICJ).

Merrills (2005), p. 167. An example of a treaty clause providing for submission of disputes to the ICJ at the request of states parties, known as a compromissory clause, is Article IX of the Genocide Convention on the Prevention and Punishment of the Crime of Genocide (adopted by Resolution 260 (III) A of the UN General Assembly on 9 December 1948, entry into force: 12 January 1951), which provides: ‘Disputes between the Contracting Parties relating to the interpretation, application or fulfillment of the present Convention, including those relating to the responsibility of a State for genocide or for any other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute’.

Scott et al. (1996).

Id.

See, e.g., Irwin (1997), p. 759; Scott et al. (1996), p. 1. According to Irwin, one of ICJ’s limits is that the ICJ has a rigid procedure and that the enforceability of its decisions decreases as sometimes the Security Council must take measure to enforce the ICJ’s judgments. See also Llamzon (2007), pp. 818–819. Llamzon observes that, in the last few decades, the overwhelming majority of the Court’s case docket has been initiated by unilateral invocation by the applicant states of ‘compulsory jurisdiction’.

International Court of Justice, supra note 1. From 22 May 1947 to 16 September 2013, had been entered 153 cases in the General List of the ICJ (contentious cases and advisory opinions).

‘Overbuilding’—is the present author’s suggestion for explaining the Court’s pattern (tendency/preference) in building its case of interpretation.

Case of S.S. Wimbledon, PCIJ, Ser. A., No. 1, 1923, p. 6.

Condition of admission of a state to membership in the United Nations (Article 4 of the Charter), ICJ, Advisory Opinion of May 28th, 1948.

Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (second phase), Advisory Opinion of July 18th, 1950.

Haya de la Torre Case, Judgment of June 13th, 1951: ICJ Reports 1951.

Exchange of Greek and Turkish Population (Lausanne Convention VI, January 30th, 1923, Article 2), Advisory Opinion, PCIJ, Series B, No 10, 1925.

Ambatielos Case (Greece v. United Kingdom), ICJ, Preliminary objections, Judgment of July 1st, 1952.

Question Concerning the Acquisition of Polish Nationality, Advisory Opinion of 15 September 1923, Series B, PCIJ, No. 7.

Constitution of the Maritime Safety Committee of the Inter-governmental Maritime, Consultative Organization, Advisory Opinion of 8 June, ICJ, 1960.

See Chap. 3 of this book.

Wimbledon (1923), p. 6, supra note 33.

Id, p. 20 (titled ‘Ports, Waterways and Railways’).

Id.

Id, p. 21.

Id, p. 22.

Id, p. 29. Thus, Germany argued that the general grant of a right of passage to vessels of all nationalities through the Kiel Canal cannot deprive Germany’s exercise of its rights as a neutral power in time of war to allow the passage through the Canal of contraband destined for one of the belligerents.

Id, p. 8. Albeit recognising that the Kiel Canal was constructed as an internal waterway of the German state, the Court considers that ‘the Treaty has taken care not to assimilate it to the other internal navigable waterways of the German Empire’ and ‘a special section has been created at the end of Part XII, dealing with ports, water-ways and railways, and in this special section rules exclusively designed for the Kiel Canal have been inserted’.

Id, p. 23.

Id, p. 24.

Id, p. 23. Also, the ‘context’ is revealed by the Court when stating that the rules provided by Part XII for the Kiel Channel ‘differ on more than one point from those to which other internal navigable waterways of the Empire are subjected by Article 321 to 327’.

Id, p. 26 (and closed to the vessel of war and commerce of nations not at peace with Germany).

Id, p. 24.

Id.

Id, p. 23.

Id, p. 24.

Id, p. 14.

Id, p. 25.

Id. Dissenting Opinion by Judges Anzilotti and Huber, p. 36.

Id, p. 19.

In this sense the Court was faithful to such progressive body of treaties as those concluded under the Versailles system, which acknowledged the dissolution of three empires, allowed for the principle of self-determination, and also the creation of several new nation states.

Koskenniemi (2004), pp. 333–334 (emphasis added).

Id.

First Admissions Case (1948), supra note 34.

Id, p. 5.

Id.

Id, p. 9.

Id.

Id (emphasis added).

Id.

Id, pp. 9–10.

Id, p. 10.

Id.

Id. However, the Court concludes that a State could only be subjected to a limited set of conditions in order to be admitted to the UN, and such limitation is explicitly provided by the Charter.

Id. Rule 60 provides: ‘The Security Council shall decide whether in its judgment the applicant is a peace loving State and is able and willing to carry out the obligations contained in the Charter, and accordingly whether to recommend the applicant State for membership.’

Id, pp. 9–10 (emphasis added).

Id, p. 10.

Id. See Joint dissenting opinion of Judge Basdevant, Winiarski, McNair and Read, p. 86.

Id.

Id (emphasis added). The disagreement between judges in the present case was therefore not on the principle but on the application of principle to the case. They argued that ‘when confronted with a rule or principle of law … no restriction on it can be presumed, unless it has been clearly established, and … in case of doubt it is the rule or principle of law which must prevail’.

Id, p. 10 (emphasis added).

See e.g. ILC’s Draft Articles on the Law of Treaties with commentaries (1966), pp. 187 and 204.

Endicott (2000), p. 29.

Id, p. 183.

Lauterpacht (1982), pp. 69–70.

Stone (1953), p. 345. Stone states in this regard that by no means it is always clear ‘whether it means that the principles of interpretation (a) do in fact give objectivity to the Court’s conclusions, or (b) merely free the Court from the suspicion of deciding cases on subjective or arbitrary grounds’.

Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (1950), supra note 35.

Id, p. 12.

McDougal and Gardner (1951), p. 266. See also a similar restrictive ICJ approach to interpretation (after the VCLT’s adoption) in: Land, Island and Maritime Frontier Dispute ((El Salvador/Honduras: Nicaragua intervening) [1992] ICJ Reports 351, Separate Opinion of Torres Bernardez, p. 719, para 35)—pointed out in Gardiner (2008), p. 18.

In the first phase of this case, the Court was asked to give an advisory opinion in principal on whether diplomatic exchanges between Bulgaria, Hungary and Romania, on the one hand, and certain Allied and Associated Powers signatory to the Treaty of Peace, on the other hand, disclosed the existence of disputes subject to the Treaty provisions.

(Under Article 2 of the Treaty with Bulgaria and Hungary and Article 3 of the Treaty with Romania). Article 2 of the Treaty with Bulgaria (to which correspond mutatis mutandi Article 2, paragraph 1, of the Treaty with Hungary and Article 3, paragraph 1, of the Treaty with Romania) provides:

Bulgaria shall take all measures necessary to secure to all persons under Bulgarian jurisdiction, without distinction as to race, sex, language or religion, the enjoyment of human rights and of fundamental freedom, including freedom of expression, of press and publications, of religious worship, of political opinion and of public meeting.

Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (1950).

Id, pp. 7–8. Article 36 of the Treaty with Bulgaria (to which correspond mutatis mutandis Article 40 of the Treaty with Hungary and Article 38 of the Treaty with Romania) provides:

1.

Except where another procedure is specifically provided under any article of the present Treaty, any dispute concerning the interpretation or execution of the Treaty, which is not settled by direct diplomatic negotiations, shall be referred to the Three Heads of Mission acting under Article 35, except that in this case the Heads of Mission will not be restricted by the time- limit provided in that Article. Any such dispute not resolved by them within a period of two months shall, unless the parties to the dispute mutually agree upon another means of settlement, be referred at the request of either party to the dispute to a Commission composed of one representative of each party and a third member selected by mutual agreement of the two parties from nationals of a third country. Should the two parties fail to agree within a period of one month upon the appointment of the third member, the Secretary-general of the United Nations may be requested by either party to make the appointment.

2.

The decision of the majority of the members of the Commission shall be the decision of the Commission, and shall be accepted by the parties as definitive and binding.

Id. This request was formulated in Question III of the General Assembly (in the first phase for an advisory opinion) of 22 October 1949.

Id, p. 13. In sum, the Court acknowledges that the governments of Bulgaria, Hungary and Romania denied from the beginning the very existence of a dispute and refused to take part in the disputes’ clauses of the Treaties and also to appoint a representative to a Treaty Commission, disregarding the Court’s Advisory Opinion.

Id, p. 10.

Id.

Id (emphasis added).

Id.

Id.

Id (emphasis added).

Id, p. 11.

Id, p. 12.

Id.

Id, pp. 11–12.

Id, p. 12.

Id. Dissenting opinion of Judge Read, p. 23.

110

Id.

111

Id, pp. 23–25. Judge Read admits that all the three countries denied all the charges justification of the conduct complained of and finds in arguing such situation that ‘international practice has treated those provisions as conferring rights or privileges upon the parties to the dispute which they would refrain from exercising at their peril– the peril of being confronted with an arbitral decision by a tribunal on which they had no representatives’.

112

Id.

113

Id, p. 11.

114

Id, p. 12 (emphasis added).

115

Id, p. 13.

116

A view that can accord with, and to effectuate, the larger general purpose which the parties desired that these Treaties to serve. See on this point McDougal and Gardner (1951), also the Dissent Opinion of M. Azeveda in this case (p. 33) in which Azeveda points out that ‘conventions will often be shown to be useless if, by excessive attachment to the letter of the texts and by resorting to vague penalties especially when it is known that there is an intention to evade the agreements, the defects attributed to the undertakings are allowed to prevail’.

117

See Nielsen v. Johnson, 279 U.S. 41, 51, 2, 1929.

118

Haya de la Torre Case (1951), supra note 36.

119

See Asylum Case (Colombia v. Peru), ICJ, Judgment of November 20th, 1950. This case originated from circumstances related to the 1948 civil war in Peru. As the war broke out on 3 October 1948, a prominent Peruvian civil leader, Víctor Raúl Haya de la Torre, head of the American People’s Revolutionary Alliance, fearing for his life, took safe haven in the Columbian Embassy of Lima and was subsequently granted asylum by the Columbian Ambassador and by the Columbian government. The Peruvian government refused to grant him safe passage out of Peru.

120

Haya de la Torre Case (1951). Article 1 of the 1928 Havana Convention on Asylum provides:

It is not permissible for states to grant asylum in legations, warships, military camps, or military aircraft, to persons accused of or condemned for common crimes, or to deserters from the army or navy. Persons accused of or condemned for common crimes taking refuge in any of the places mentioned in the preceding paragraph, shall be surrendered upon request of the local government. Should said persons take refuge in foreign territory, surrender shall be brought about through extradition, but only in such cases and in the form established by the respective treaties and conventions or by the constitutional laws of the country of refuge.

Id, p. 14.

Id.

Id, p. 13.

Id.

Id.

Id. The Court concludes that the Government of Peru had not proven that the acts of Mr. Haya de la Torre constituted ‘common crimes’ (emphasis added).

127

Id, p. 14 (emphasis added).

Id.

Id.

Id.

Id, p. 16. The Court assumes that the parties ‘will be able to find a practical and satisfactory solution by seeking guidance from those considerations of courtesy and good neighbourliness which, in matters of asylum, have always held a prominent place in the relations between the Latin-American republics’.

Id.

Id, p. 16.

Id (emphasis added).

Exchange of Greek and Turkish Population (1925), supra note 37.

136

Id, p. 17.

Article 1 of the Convention, reflecting the principles of emigration in questions provides:

As from May 1st, 1923, there shall take place a compulsory exchange of Turkish nationals of the Greek Orthodox religion established in Turkish territory, and of Greek nationals of the Moslem religion established in Greek territory …

The word ‘established’ appears in this provision, and it is related to the scope and meaning of the word used in

Article 2, which provides:

The following persons shall not be included in the exchange provided for in Article 1: a) The Greek inhabitants of Constantinople. b) The Moslem inhabitants of Western Thrace. All Greeks who already established before the 30th October, 1918, within the areas under the Prefecture of the City of Constantinople, as defined by the law of 1912, shall be considered as Greek inhabitants of Constantinople.

Id.

Id, p. 18.

Id.

Id, p. 19.

Id, p. 23.

Id.

Id. See for Article 1 of the Convention on the Exchange of Greek and Turkish, supra note 136.

144

Id, p. 20.

145

Id, p. 25.

146

Id. Turkey Government based its arguments on sovereign rights, that municipal courts should decide, respectively, ‘whether a person is established or not within the meaning of Article 2’.

Id (emphasis added).

Id, p. 21.

Id, p. 16.

Id, p. 17.

Id.

Id.

Id, p. 19. Later, the Court again refers to the preparatory work of the Convention in clarifying the criterion (date and place) after which inhabitants of Constantinople would be considered ‘established’. It states that to consider the date of 18 October 1912 to Greek inhabitants of Constantinople who establish themselves there between that and 30 October 1918 (which was a subject of long discussion at the Lausanne), would deprive Article 2 of a great part of value.

154

The Turkish Government claimed that the term ‘established’ must be interpreted as understood in its national law, for an international agreement could not infringe the sovereign rights of the High Contracting Parties, nor could it permit the abrogation of a municipal law in a specific provision to the contrary.

155

Exchange of Greek and Turkish Population (1925), p. 21 (emphasis added).

156

Id.

157

Id, p. 19.

158

Waldock (1964), p. 48 (emphasis added).

159

Often is cited Vattel (unjustly) in the scholarship in regard to this rule.

160

Ciobanu (1991), p. 91.

161

Id.

162

Ambatielos (1952), supra note 38.

163

Ris (1991), p. 129.

164

Ambatielos (1952) On the other hand, the Government of the United Kingdom contended that the Court lacked jurisdiction to decide on that question.

165

Id, p. 20.

166

Id, p. 24. The United Kingdom contested that the provisions of that Declaration were not provisions of that Treaty within the meaning of Article 29. And both parties agreed on the question that ‘the Declaration was signed separately from the Treaty proper, thought by the same signature and on the same day’.

167

Article 29 of the Treaty of Commerce between the United Kingdom and Greece provides:

The two Contracting Parties agree in principle that any dispute that may arise between them as to the proper interpretation or application of any of the provisions of the present Treaty shall, at the request of either Party, be referred to arbitration.

The court of arbitration to which disputes shall be referred shall be the Permanent Court of International Justice at The Hague, unless in any particular case the two Contracting Parties agree otherwise.

168

Ambatielos (1952), pp. 18–19.

Id, p. 42.

Id.

Id.

Id. The United Kingdom claimed that ‘before Declaration being signed and that Greek Government did not formulate any legal claim in respect of M. Ambatielos until 1933, not indeed any legal claim under the Treaty of 1886 until 1939’.

Id.

Id.

Id.

Id, p. 45.

Id, p. 24.

Id, p. 42. The phrase used in the Declaration is ‘claims based on the provisions of the Anglo-Greek Commercial Treaty of 1886’.

179

Id.

180

See the effectiveness principle applied in, e.g., Condition of Admission Case (1948), p. 73, discussed above, as also other cases analysed in this chapter.

181

Villiger (2011), p. 110.

182

Acquisition of Polish Nationality (1923), supra note 39.

183

Id. Article 4 of the Polish Treaty of Minorities provides:

Poland admits and declares to be Polish nationals ipso facto and without requirement of any formality persons of German, Austrian, Hungarian, or Russian nationality who were born in the said territory of parents habitually resident there even if at the date of the coming into force of the present treaty they are not themselves habitually resident there.

Id, p. 18.

Id, pp. 12–13.

Id, p. 21.

Id, p. 14.

Id, p. 18.

Id.

Id, pp. 14–15.

Id, p. 15.

Id.

Id, p. 18. See, i.e., the discussion of the Court in respect of Article 12 of the Minorities Treaties relating to the League of Nations’ competence to protect minorities.

194

Id.

195

Id. The Court interpreted the protection of the minorities Treaty as extended to persons who were not of Polish nationality for the reason that ‘it here were not the case, the value and sphere of application of the Treaty would be greatly diminished’.

196

Id, p. 20.

197

Id, p. 17.

198

See a similar line of argument relating to the protection of the human rights of minorities, in, e.g., Settlers of German Origin in Poland, Advisory Opinion, 1923 P.C.I.J. (ser. B) No. 6 (Sept. 10), p. 25. The Court held in this case: ‘The effect of the enforcement of the law of July 14th, 1920, would be to eradicate what had previously been done, so far as de-“Germanisation” would result from requiring the settlers in question to abandon their homes. But, although such a measure may be comprehensible, it is precisely what the Minorities Treaty was intended to prevent. The intention of this Treaty was no doubt to eliminate a dangerous source of oppression, recrimination and dispute, to prevent racial and religious hatreds from having free play and to protect the situations established upon its conclusion, by placing existing minorities under the impartial protection of the League of Nations.’

199

Ghandhi (2011), p. 528. See earlier cases involving a human rights dimension, e.g., Rights of Minorities in Upper Silesia (Minority Schools) (1928), PCIJ, Series A 15; Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzing Territory (1932) PCIJ, Series A/B 44; Minority Schools in Albania (1935) PCIJ, Series A/B 64.

200

See Third Report on the law of treaties, ILC (1964), p. 53.

201

Constitution of the Maritime Safety Committee of the Inter-governmental Maritime, Consultative Organization, (IMCO), supra note 40.

202

Id, pp. 5–7.

203

Id, p. 8. The provision of Article 28(a) provides that the 14 members of the Committee shall be elected by the Assembly from the members, governments of those nations having an important interest in maritime safety, of which not less than eight shall be the largest ship-owning nations.

Id (emphasis added).

Id.

Id.

Id, p. 13.

Id.

Id.

Id.

Id.

Id.

Id (emphasis added).

Id, p. 21.

Id. This approach could be reflected in the later formulation of Article 31(3)(c) VCLT. According to the scholarship, there is an extensive jurisprudence predating the VCLT that makes reference to ‘the relevant rules of international law’ as interpretative means. See discussing this aspect, e.g., Merkouris (2010a).

Id, p. 21.

Id.

Id.

Id, p. 21.

Namely, that whichever were the largest ship-owing nations that each possessed an important interest in maritime safety was accepted as axiomatic.

221

Id, p. 24.

222

Kasikili/Sedudu Island (Botswana v. Namibia), I.C.J. Judgment of 13 December, 1999, p. 18.

223

Case concerning military and paramilitary activities in and against Nicaragua (Nicaragua v. United States of America), Merits, I.C.J., 27 June 1986.

224

Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction of the Court and admissibility of the Application, I.C.J., Judgment of 20 December, 1988.

225

Application of the Interim Accord of 13 September 1995 (The Former Yugoslavia Republic of Macedonia v. Greece), Judgment of 5 December 2011.

226

Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, I.C.J., 12 December 1996, I.C.J. Summary 1996/4 Order of 12 December 1996.

227

Case concerning the territorial dispute (Libyan Arab Jamahirya v. Chad), I.C.J., Judgment of 3 February 1994.

228

Orakhelashvili (2008), p. 338.

229

Id.

230

See 1969 Vienna Convention on the Law of the Treaties (entered into force in Jan. 1980), United Nations, Treaty Series, vol 1155, p. 331. Article 1 of the VCLT provides that ‘The present Convention applies to treaties between States’.

231

Linderfalk (2007) (emphasis added).

232

Id.

233

Kasikili/Sedudu Island (1999), supra note 222.

234

Id, p. 18 (emphasis added). See a similar ICJ holding in Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malayesia), (2002) ICJ Reports, pp. 23–23, para 37. This case is a also an illustratiion of the ICJ's application of the VCLT rules of interpretation even if the parties involved in litigation were not parties to the VCLT. See other such cases, e.g., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports; Case Concerning Legality of Use of Force (Serbia and Montenegro v. United Kingdom) (Preliminary Objections) [2004], ICJ Reports; Oil Platforms case discussed further in this chapter.

235

Article III of the 1890 Treaty provides:

In Southwest Africa the sphere in which the exercise of influence is reserved to Germany is bounded: 1) To the south by a line commencing at the mouth of Orange river, and ascending the north bank of that river to the point of its intersection by the 30th degree of east longitude; 2) To the east by a line commencing at the above-named point, and following the 20th degree of east latitude; it runs eastward along that parallel to the point of its intersection by the 22nd parallel of south latitude; it runs eastward along that parallel to the point of its intersection by the 21st degree of east longitude; thence it follows that degree northward to the point of its intersection by the 18th parallel of south latitude; it runs eastward along that parallel till it reaches the river Chobe, and descends the centre of the main channel of that river to its junction with the Zambezi, where it terminates (emphasis added).

236

Kasikili/Sedudu Island (1999), p. 18.

Id, pp. 19–20.

Id.

Id, p. 33.

Id.

Id.

Id, p. 18.

Id, p. 22.

Id, p. 61.

Id, p. 46.

Id, p. 61.

Id, p. 46. The Court invokes the Libyan Arab Jamahirya/Chad case (1994). See a similar approach adopted by the ICJ in the recent case Maritime Delimitation in the Indian Ocean (Somalia v. Kenya) Preliminary Objections, Judgment of 2 February 2017. This case is an interesting illustration of the manner in which the ICJ declared expressly that it looked first to establish the intention of the Parties to the treaty in question, showing an emphasis on the intention element rather than on the text as the Court usually did in many other cases before it.

248

Id, p. 60. In his Separate Opinion (at p. 102), Judge Oda suggests that, rather than a laborious analysis by virtue of the plain meaning rule dedicated to the word ‘Thalweg’, which was just simply a translation of the English term ‘centre’, as the Judgment itself admits, the Court could have considered the historical background, past practices and a scientific expert as sufficiently determinative of the boundary, without having any bearing on the provisions of the VCLT.

249

Id, p. 21.

250

See a similar approach, e.g., in the Libyan Arab Jamahirya/Chad and Oil Platforms cases discussed further in this chapter.

251

Merkouris (2010b), p. 9.

252

See Merkouris’ analysis of ‘Article 31(3)(c) of the VCLT’ in Merkouris (2010a), p. 41.

253

Case concerning military and paramilitary activities in and against Nicaragua (Merits) (1986), supra note 223.

254

Case concerning military and paramilitary activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction of the Court and Admissibility of the Application, I.C.J. Judgment of 26 November, 1984, p. 7. (Nicaragua claimed that a violation of the United Nations Charter is equally a violation of Articles 20 and 21 of the Organization of American States Charter).

255

Nicaragua (1984), p. 37.

Nicaragua (1986).

Id.

Id.

Id, p. 126.

Id (emphasis added).

Id (emphasis added).

Id, p. 128 (emphasis added).

263

Id.

264

Id, p. 137. Article XIX, para 1, of the 1956 FCN, provides:

Between the territories of the two Parties there shall be freedom of commerce and navigation’… and continues at para 3): ‘Vessels of either Party shall have liberty, on equal terms with vessels of other Party and on equal terms with vessels of any third country, to come with their cargoes to all ports, places and waters of such other Party open to foreign commerce and navigation…

Id, p. 95.

Id.

Id, p. 106.

Id.

Id, pp. 106–107. The Court refers, i.e., to ‘decisions of the Security Council taken as basis of Chapter VII of the UN Charter, decisions taken by the Organ of Consultation of the Inter American-System’.

270

Id, p. 27.

271

Id, p. 132.

272

According to the ILC, general international law consists in general customary law and general principles of law.

273

Sornarajah (2010), p. 181 (‘FCN’—Treaties of friendship, commerce, and navigation).

274

Boyle (1987), p. 86.

275

Id. According to Boyle, the Court ‘carefully premised this result on finding that it had insufficient evidence to reach a definitive conclusion on such a delicate matter’ and ‘apparently decided to avoid adjudicating the politically charged issue of whether United States government officials are personally responsible for any degree of complicity in the commission of international crimes by contra forces against the civilian population in Nicaragua’. The reason for doing so, as concluded by the author, was that ‘the Court realized full well that its ruling in favor of Nicaragua would be subjected to an enormous amount of hostile criticism from one source that has traditionally served as its foremost proponent - The United States Government’.

276

Nicaragua (1986), p. 167. Equally worthy is that the Court found the U.S. responsible under general principles of humanitarian law.

277

Moore (1987), p. 152.

278

Koskenniemi (2006), p. 292.

279

Linderfalk (2007), p. 110 (emphasis added).

280

Border and Transborder Armed Actions (1988), supra note 224.

281

Id, p. 10.

282

Article XXXI provides:

In conformity with Article 36, paragraph 2, of the Statute of the International Court of Justice, the High Contracting Parties declare that they recognize, in relation to any other American State, the jurisdiction of the Court as compulsory ipso facto, without the necessity of any special agreement so long as the present Treaty is in force, in all disputes of a judicial nature that arise among them concerning:
a)

The interpretation of a treaty;

b)

Any question of international law;

c)

The existence of any fact which, if established, would constitute the breach of an international obligation;

d)

The nature or extent of the reparation to be made for the breach of an international obligation.

283

Border and Transborder Armed Actions (1988). Article XXXII of the Bogota Pact provides:

When the conciliation procedure previously established in the present Treaty or any agreement of the parties does not lead to a solution, and the said parties have not agreed upon an arbitral procedure, either of them shall be entitled to have recourse to the International Court of Justice in the manner prescribed in Article 40 of the Statute thereof. The Court shall have compulsory jurisdiction in accordance with Article 36, paragraph 1, of the said Statute.

Id, p. 25.

Id, pp. 14–16.

Id, p. 23.

Id, p. 24.

Id, p. 20. Moreover, the Spanish, English and Portuguese versions speak in general terms of an entitlement to have recourse to the Court and do not justify the conclusion that there is a link between Article XXXI and Article XXXII of the Bogota Pact.

Id, p. 23.

Id, p. 25.

Id, p. 22.

Id, p. 24.

Id.

Id.

Id.

Id, p. 40.

The concept of the ‘use of force’ is provided by Article 52 of the 1969 VCLT, according to which a treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations. Also, Article 2(4) of the United Nations Charter provides:

All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other measure inconsistent with the purposes of the United Nations.

298

Lauterpacht (1949), p. 73.

299

Engelen (2004), p. 175.

300

Application of the Interim Accord of 13 September 1995 (2011), supra note 225. Macedonia requests the Court to make a declaration to this effect and to order Greece to ‘take all necessary steps to comply with its obligations under Article 11, paragraph 1, of the Interim Accord’.

301

Id.

302

The Interim Accord concluded between the parties on 13 September 1995 provided for the establishment of diplomatic relations between them and addressing other related issues.

Article 11, paragraph 1, of the Interim Accord provides:

‘Upon entry into force of this Interim Accord, the Party of the First Part agrees not to object to the application by or the membership of the Party of the Second Part in international, multilateral and regional organizations and institutions of which the Party of the First Part is a member; however, the Party of the First Part reserves the right to object to any membership referred to above if and to the extent the Party of the Second Part is to be referred to in such organization or institution differently than in paragraph 2 of United Nations Security Council resolution 817 (1993).’ A note here: the Interim Accord refers to the Applicant as ‘Party of the Second Part’ and to the Respondent as ‘Party of the First Part’ so as to avoid using any contentious name.

303

With the exception of the ‘difference’ referred to in Article 5, paragraph 1, of the Interim Accord, which reads as follows: ‘The Parties agree to continue negotiations under the auspices of the Secretary-General of the United Nations pursuant to Security Council resolution 845 (1993) with a view to reaching agreement on the difference described in that resolution and in Security Council resolution 817 (1993).’

304

Application of the Interim Accord of 13 September 1995 (2011), pp. 16–17.

Id, p. 18.

Id.

Id.

Id, p. 16.

Id, p. 30.

Id.

Id, p. 37.

Id, p. 38.

Id.

Id.

Id.

Id.

Id, p. 35.

Id, p. 36. The Applicant was admitted under the provisional designation prescribed by paragraph 2 of resolution 817 and has been referred to in the organisation by that name.

319

Id. According to Greece’s interpretation, ‘duties’ under a prior treaty would take precedence over obligations in the Interim Accord (referring to its right under Article 10 of the North Atlantic Treaty), a view which the Court admitted as unacceptable.

Id.

Id.

Id, p. 44.

Jonas and Saunders (2010), p. 581.

324

Id. The authors address in this connection Article 19, paragraph (c), of the VCLT, referring to the importance of the ‘object and purpose’ as a test to preserve treaty rule coherence. Article 19 provides:

A state may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation, unless: …c)… the reservation is incompatible with the object and purpose of the treaty.

325

Villiger (2009), p. 110. See in this regard one of the most recent cases decided at the ICJ: Maritime Delimitation in the Indian Ocean (Somalia v. Kenya) (2017), supra note 247. In this case the Court made an express statement that when interpreting a treaty provision which does not provide clarity (insufficient clear text), the Court must look to ascertain first the intention of the Parties in respect of that provision in the context of the treaty as a whole.

326

Oil Platforms (1996), supra note 226.

Id, p. 12.

Id, p. 11.

Id, p. 13.

Id. Although the United States has not ratified the VCLT, it has declared that the VCLT is ‘generally recognized as the authoritative guide to current treaty law and practice’ (see for this opinion, e.g., Roger Alford: Treaty Interpretation, at opiniojuris.org/2006/10/19treaty-interpretation-101/).

Id, p. 23.

Id, p. 24.

Id, p. 14.

Id.

Id, p. 14.

Id, p. 13.

Id, p. 15.

Id, p. 16.

Id (emphasis added). The Court cites Nicaragua (1986), p. 137, para 273.

Id, p. 15.

Id.

Id.

Id. See Separate Opinion of Judge Rigaux (at p. 65, para 29). Also in the Dissenting Opinion of Vice President Schwebel, ‘these papers may properly be weighed by the Court not as travaux preparatoire but as part of the circumstances of the conclusion of the Treaty of Friendship, Commerce and Navigation’.

344

Id.

345

Id, p. 16. In particular, the Court finds that ‘The United States has never relied upon that Article I in proceedings involving Iran and, more particularly, did not invoke that text in the case concerning United States Diplomatic and Consular Staff in Tehran. Neither did Iran rely on that Article, for example in the proceedings before the Court in the case concerning the Aerial Incident of 3 July 1988.’

346

Id, pp. 13–15.

347

Id, p. 16.

348

Article X, paragraph 1, provides:

Between the territories of the High Contracting Parties there shall be freedom of commerce and navigation.

Id, p. 16.

Id, p. 19.

Id, p. 35.

Id, p. 20.

Id, p. 21.

Id.

Gardiner (2008), p. 104.

356

Id, p. 100.

357

Territorial dispute (1994), supra note 227.

358

Id, p. 22.

359

Id, p. 20. As in other cases before the adoption of the VCLT, also similar approaches could be observable in the ICJ’s practice after the adoption of the VCLT, i.e., in LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 466, at paras 41–43. The Court held in LaGrand: ‘Given the conclusions reached by the Court above in interpreting the text of Article 41 of the Statute in the light of the object and purpose, it does not consider it necessary to resort to the preparatory work in order to determine the meaning of that Article.’ However, the Court explicitly resorted in the course of the LaGrand’s judgment to the preparatory work of the provision at issue (Article 41 of the Statute of the Court), finding that ‘it is clear that none of the sources of interpretation referred in the relevant Articles of the Vienna Convention on the Law of Treaties, including the preparatory work, contradict the conclusions drawn from the terms of Article 41 read in their context and in the light of the object and purpose of the Statute’.

360

Id, p. 9. The application had been drawn up pursuant to Article 2 of the Framework Agreement [Accord-Cadre] on the Peaceful Settlement of the Territorial Dispute between the Great Socialist People’s Libyan Arab Jamahirya and the Republic of Chad on 31 August 1989 as basis for the Court’s jurisdiction, and subsidiary on Article 8 of the Franco-Libyan Treaty of Friendship and Good Neighbourliness of August 1955.

Article 2 (a) of the Accord Cadre provides:

In the absence of a political settlement of their territorial dispute, the two parties undertake: a) to submit the dispute to the International Court of Justice.

361

Id, pp. 12–13. Article 3 of the 1955 Treaty provides:

The two High Contracting Parties recognize that the frontiers between the territories of Tunisia, Algeria, French West Africa and French Equatorial Africa on the one hand, and the territory of Libya on the other, are those that result from the international instruments in force on the date of the constitution of the United Kingdom of Libya as listed in the attached Exchange of Letters.

Id, p. 20.

Id.

Id.

Id, p. 27.

Id.

Id, p. 25.

Id.

Id.

Id.

Id.

Id.

Id, p. 26. See similarity between the interpretative approaches adopted by the ICJ in the Case Concerning the Territorial Dispute and the recent case Maritime Delimitation in the Black Sea (Romania v. Ukraina), ICJ, Judgment of 3 February 2009.

374

Id (emphasis added). See similarity with the approach adopted by the ICJ in the recent Maritime Delimitation in the Indian Ocean (Somalia v. Kenya) (2017), supra note 247. In this case the Court's emphasis was on the context of the treaty (treaty as a whole) as determinative for other elements of the treaty. For example, the Court stated that: ‘[i]t is, however, difficult to understand that paragraph without a prior analysis of the text of the MOU as a whole, which provides the context in which any particular paragraph should be interpreted and gives insight into the object and purpose of the MOU.’

375

E.g., Interpretation of Article 3, para 2, of the Treaty of Lausanne, PCIJ, Advisory Opinion of 21 November 1925, Series B, No. 12, dealing with a provision of the Treaty of Lausanne: ‘It is … natural that any article designed to fix a frontier should if possible, be interpreted that the result of the application of its provisions in their entirety should be the establishment of a precise, complete and definitive frontier’; The Temple of Preah Vihear Case (Cambodia v. Thailand), Merits, ICJ Reports, 1962, where the Court held that it based its decision upholding the ‘map line’ on the fact that ‘both Parties, by their conduct recognized the line and thereby in effect agreed to regard it as being the frontier line’; or Sovereignty over Certain Frontier Land, ICJ Reports 1959, pp. 221–222.

376

See on this aspect, e.g., Hagle (1990).

377

See e.g. the case discussed in this chapter: Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (1950). This case is perceived in the scholarship as one of the rare examples of the World Court’s taking a narrower, restrictive view of interpretation (textualist method as prevalent in this case).

378

E.g., Kasikili/Sedudu Island (1999), discussed in this chapter. Article 4 of the VCLT provides for ‘Non-retroactivity’ of the Convention, namely that it applies only to treaties that are concluded by states after the entry into force of the present Convention with regard to such states. See also the recent case at the ICJ: Maritime Delimitation in the Indian Ocean (Somalia v. Kenya) (2017), supra note 247. In this case the Court held that the customary international law of treaties were applicable to the dispute even if neither Somalia nor Kenya were party to the Vienna Convention. This case is important since the Court clearly and expressly admits that the treaty interpretation act must be a unitary, single combined operation. It confirms this approach by placing on the same footing the various elements enumerated in the four paragraphs of Article 31 of the VCLT, also admitting the rules provided by Article 32 of the VCLT as equally important interpretative devices in reaching the final interpretation/decision.

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Title: PCIJ/ICJ Practice on Treaty Interpretation
Author: Liliana E. Popa
Publisher: Springer International Publishing
Book: Patterns of Treaty Interpretation as Anti-Fragmentation Tools
Print ISBN: 978-3-319-65487-4

Electronic ISBN: 978-3-319-65488-1

Copyright Year: 2018
DOI: https://doi.org/10.1007/978-3-319-65488-1_4

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