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2018 | OriginalPaper | Chapter

3. 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

This chapter provides a review of philosophical ideas related to legal reasoning and interpretation, respectively an examination of the evolution of treaty interpretation doctrine prior to, and after, the adoption of the 1969 Vienna Convention on the Law of Treaties. Among the arguments developed in this chapter, an important one is that interpretation in law is, in essence, an inevitable and necessary aspect when applying a legal norm due, in principle, to an inherent indeterminacy that characterises legal texts. Since interpretation is an inherent aspect of relationship with the legal norm, it means that even when a text of a legal norm is declared by the interpreter as being ‘clear’ in a given context, in order to declare the clarity of that text, the interpreter necessarily subjects that norm to interpretation. Another argument developed in the chapter is that the act of legal interpretation is characterised by the interplay between freedom and creativity of the interpreter on one side and constraints on the other side, which applies regardless of the particular context in which the interpreter applies the law. And finally, when states are submitted to the filter of treaty interpretation, the Vienna Convention on the Law of the Treaties provides a pertinent holistic frame for interpreting treaties. The examination of ideas on interpretation and treaty interpretation advanced in this chapter offers the necessary theoretical background for approaching the topic of treaty interpretation in the subsequent chapters, where specialised international regimes’ practices are analysed.

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previous chapter Does Proliferation of International Judicial Bodies Lead to the Fragmentation of International Law?
next chapter PCIJ/ICJ Practice on Treaty Interpretation
Footnotes
1
ILC (2006), p. 6.
 
2
There is a dramatic proliferation with respect to both bilateral and multilateral international treaties, purporting to govern broad subject matters.
 
3
ILC (2006), p. 6.
 
4
Id.
 
5
In the light of the varieties of approaches (schools of thought) related to treaty interpretation.
 
6
Endicott (2001), p. 161.
 
7
Bederman (2001), p. 22. According to Bederman, Grotius’ intention was to refashion questions relating to the construction of agreements, especially agreements concerning the public domain in one single inquiry to provide a legal taxonomy that could form a guide for the interpreter of a treaty.
 
8
Id, p. 23.
 
9
Id.
 
10
Falk (1967), p. 324.
 
11
Id.
 
12
Id.
 
13
Id.
 
14
Id, p. 329.
 
15
Id.
 
16
Id (Falk quoting Finnis).
 
17
Patterson (2005), p. 688.
 
18
Id, p. 700.
 
19
Id, p. 692.
 
20
Id.
 
21
Id, p. 689.
 
22
Id, p. 692.
 
23
Id, p. 696.
 
24
Id. See Patterson (2001) for a discussion on normativity in law.
 
25
Id.
 
26
Id, p. 692.
 
27
Id, p. 693.
 
28
Id.
 
29
Id, pp. 693–694.
 
30
Id. According to Patterson, a norm is defined as a linguistic formulation that performs a ‘stimulative’ function in a given context, a pattern of due behavior.
 
31
Id, p. 697.
 
32
Id, p. 709.
 
33
Peczenik (1985), p. 291.
 
34
Id.
 
35
Wróblewski (1985), pp. 240–243.
 
36
Id, p. 150 (or, however, there are consistency problems in applying a norm, i.e., when the norm in question, understood as its prima facie meaning, contradicts other norms belonging to the legal system-conflict of norms that must be resolved or when fuzziness in the norm language is related to the rules governing the consistency of a legal system).
 
37
Id. Wroblewski identifies the causes that generate doubts or fuzziness in the legal language of a norm on the basis of the type of contexts that influences the meaning of a norm (i.e., doubts or fuzziness due to the semantic features of the legal language, the features of the legal system, the functional context of the interpretation and application of law).
 
38
Id.
 
39
Id, p. 248.
 
40
Id.
 
41
Id, p. 244.
 
42
Id.
 
43
Id.
 
44
Id, pp. 245–246. The author notes (at p. 253) in this sense: ‘There are arguments for treatening an interpretative decision as future-oriented, based on the axiology of formal justice and the role of precedent as a tool for safeguarding the decisional consistency in time’.
 
45
Id.
 
46
Id.
 
47
Id, p. 254 (emphasis added).
 
48
Id.
 
49
Id.
 
50
Id.
 
51
Id, p. 248.
 
52
Id, p. 245 (emphasis added).
 
53
Venzke (2012), p. 51.
 
54
Id, pp. 48–50.
 
55
Id.
 
56
Id.
 
57
Id, p. 7.
 
58
Id, p. 64 (emphasis added).
 
59
Id, p. 54. Venzke observes that a norm’s meaning does not lie hidden in or behind the norm text itself but is a product of interpretation. While the author admits the text as ‘the first and foremost authoritative reference point in legal argument’, interpretations are, in his view, embedded in societal practice and past uses of the law.
 
60
Stone (1953), pp. 367–368.
 
61
Id.
 
62
Fish (1980), p. 342. Fish observes that where there is no core of agreement in the text, there is, certainly, ‘a core of agreement concerning the ways of producing the text’, although one subject to change.
 
63
Id, p. 340.
 
64
Id, pp. 338–339. In the author’s view, disagreements on the text depend on one’s point of view, and some readers may choose to perversely substitute their own meanings for the meanings that texts obviously bear.
 
65
Id, p. 355. Fish considers that the interpreter can stand charged of having substituted his own meanings for the meanings of which he is supposedly the guardian, or even found guilty of having interpreted.
 
66
Id, p. 338.
 
67
Id, p. 349 (emphasis added). Since these ‘ridiculous’ examples can be seen not as such under different conditions, it means that the canons of acceptability can change, not randomly but orderly, and to some extent they are predictable. Given this, Fish concludes that ‘we are always right to rule out at least some readings’.
 
68
Fish (1980), p. 340. The author sees that, in this way, interpretation appears itself as remedying a deficiency in the interpretation that has come before it.
 
69
Klabbers (2010), p. 23.
 
70
Id.
 
71
Id.
 
72
Id, p. 25.
 
73
Id.
 
74
Id.
 
75
Endicott (2001), p. 20.
 
76
Id, p. 30.
 
77
Id, p. 162.
 
78
Id, p. 160.
 
79
Id, p. 165.
 
80
Id, p. 163.
 
81
Id, p. 31.
 
82
Id, p. 181.
 
83
Id. The author notes in this regard: ‘Interpretive techniques make a difference to the requirements of the law, but it seems that we have no grounds for a general conclusion that they make the requirements of the law more precise.’
 
84
Id, p. 12 (emphasis added).
 
85
Id. See, e.g., Patterson’s view discussed above.
 
86
Id, p. 161.
 
87
Id.
 
88
Id, p. 30.
 
89
Id.
 
90
Id, pp. 161–162 (emphasis added).
 
91
Endicott (2001), p. 29. The author suggests in this regard that ‘if judges do not intent to do what a statute says to do, they should not take refuge in claims of indeterminacy or claim that they are interpreting the words of the statute’ or in that the plain meaning of words compels a decision.
 
92
Id.
 
93
Id, p. 138.
 
94
Id, p. 180. To distinguish interpretation from invention, Endicott identifies two aspects: (1) ‘When does an interpretation become so outrageous that it can be condemned as invention?’ and (2) ‘If a rule does not determine an action in a case, can a court be said to apply the rule at all? If not, then interpretation must simply be a subcategory of invention.’
 
95
Id.
 
96
Id, p. 160.
 
97
See on this point Chap. 2 of this book, Ciobanu (1991); in this chapter De Vattel (1758), Endicott (2001). See also illustration of this aspect in case law analyses provided in the empirical part of this book.
 
98
ILC Report (2006), p. 614. According to the ILC, in applying international law, ‘interpretation’ is a prerequisite, i.e., in determining the relationships between two or more rules and principles that are both valid and applicable to a given situation.
 
99
Id.
 
100
Id, p. 11.
 
101
Constantinou (2005), p. 2. The author finds a similar term for the Latin word tractus (treaty) as recorded conventio, from which the English word convention derives. According to the author, the term ‘convention’ ‘is currently used as a synonym for treaty, especially when following long multilateral negotiations. Conventio has in addition the meaning of an assembly and is a word that literally translates sumbasis, an ancient Greek word for treaty. Sumbainō had the meaning of coming to an agreement but also of walking together, just like the Latin word convenio.’
 
102
Id.
 
103
Id.
 
104
Id.
 
105
Id. Constantinou citing Cicero (106–43 B.C.E.), who spoke extensively in De officiis (3.24) of ethical conduct, with no difference between agreements and promises (pacta et promisa).
 
106
Id.
 
107
Id.
 
108
See Gentili (1933) for De iure belli libri tres (1612).
 
109
Id. Constantinou citing Gentili: ‘For although the impious oath of an infidel may be accepted, yet what trust can be put in an unbeliever.’
 
110
Vitányi (1983), p. 45.
 
111
Id.
 
112
Id.
 
113
Grotius (2005), II, p. 848. It should be reminded that there are several authoritative English translations of Grotius’ seminal work, corresponding to the various editions of the De Jure Belli ac Pacis. Here, a majority of references are made to the most recent English translation (2005) made by Richard Tuck, corresponding to the 1720 Jean Barbeyrac’s edition. In addition to this text, there is also the Francis W. Kelsey translation (Grotius 1925), not utilised here, which was drawn from the second, vastly revised version by Grotius of The Rights of War and Peace in 1646, near the conclusion of the Thirty Years’ War. See, e.g., Gordon (1995), noting that Grotius made nearly a thousand corrections to the first edition. In several instances, I have chosen to cite the 1814 translation by A. C. Campbell, republished in 1901 as part of the Universal Classics Library. This was a translation of the first, 1625, edition of the book. So references in this section will be made to Tuck’s (Grotius, De Jure…1720) and, also, to Campbell’s (Grotius, De Jure...1625) translation, Book II, Chapter XVI.
 
114
Id.
 
115
Id.
 
116
Grotius (1901) (emphasis added).
 
117
Id.
 
118
Id.
 
119
Grotius (2005), p. 863.
 
120
Grotius (1901).
 
121
Grotius (2005), p. 866.
 
122
Id.
 
123
Id.
 
124
Id, p. 871.
 
125
Id. Grotius observes that ‘… conjecture that enlarge the obligation is not rashly to be admitted, but with a great deal more caution … where words are allowed a large signification … for here we look for a conjecture, which the words of the promise do not directly imply, and therefore this conjecture ought to be extremely certain, to form an obligation from it’.
 
126
Id, p. 870.
 
127
Id, p. 875. An original defect according to Grotius derives ‘either from the absurdity which would otherwise evidently follow, or upon failure of the reason which alone did fully and efficaciously move the will, or from a defect in the matter’.
 
128
Id.
 
129
Id.
 
130
Bederman (2001), p. 28. The author notes that both Grotius’ and Pufendorf’s use of textual conjectures form the essence of basic, grammatical canons:
(1)
the plain meanings of words should be used unless they lead to absurd results;
 
(2)
technical words should be given their technical meanings; and
 
(3)
a correct interpretation of doubtful words and phrases might be made in relation to the use of the terms or expressions in the same, or related, documents.
 
 
131
Pufendorf (1934), v. 12.8.
 
132
Id, passage v. 12.9.
 
133
Id, passage v. 12.10 (or ‘that cause and concern which moved the lawgiver to have the law passed’).
 
134
Id.
 
135
Id (emphasis added).
 
136
Bederman (2001), p. 37.
 
137
Id, p. 36.
 
138
Id, p. 37.
 
139
McDougal et al. (1994), pp. 216–217.
 
140
De Vattel (1758), p. 271. Vattel makes clear in this regard that ‘[i]n the interpretation of treaties, compacts, and promises, we ought not to deviate from the common use of the language, unless we have very strong reasons for it’.
 
141
See Ciobanu (1991).
 
142
De Vattel (1758), p. 262.
 
143
Id, para 268.
 
144
Id.
 
145
Id, para 274 (emphasis added).
 
146
Id, para 287.
 
147
Id, para 322.
 
148
Id (emphasis added).
 
149
Id, p. 262. Among Vattel’s principles of treaty interpretation (maxims) are: ‘if he who could and ought to have explained himself has not done it, it is to his own detriment’; ‘neither of the contracting parties has a right to interpret the treaty according to his own fancy’; ‘what is sufficiently declared, is to be taken for true’; ‘we ought to attend rather to the words of the persons promising’; ‘the interpretation ought to be made according to certain rules’; ‘the faith of treaties lays an obligation to follow these rules’.
 
150
Id, para 280 (emphasis added).
 
151
Id, para 283.
 
152
Id (emphasis added).
 
153
Id, para 207.
 
154
Id.
 
155
Orakhelashvili (2008), p. 303.
 
156
Phillimore (1856), p. 70. As Phillimore, also W. E. Hall adopted the approach of established rules for treaty interpretation in his work: A Treaties in International Law (1895). He pronounced for treaty interpretation to be undertaken on the basis of predetermined rules. See also Sir Eric Beckett (1950).
 
157
Id, p. 89.
 
158
Id (emphasis added).
 
159
Id.
 
160
Id.
 
161
Id, p. 97.
 
162
Id.
 
163
Id.
 
164
Id, pp. 98–99.
 
165
Id, pp. 102–105. General maxims such as ‘good faith clings to the spirit, and fraud to the letter of the convention’ or ‘that no one is supposed to intend what is absurd’ are intended by Phillimore to guide an interpreter, especially, when adopting an extensive interpretation and, respectively, a restrictive interpretation. For example, in a case not foreseen or provided by the treaty, an interpretation must be conducted, according to Phillimore (at p. 109), ‘as nearly as possible in accordance with what the party would have done if the circumstance which has now happened had been foreseen’.
 
166
For the value of the rules proposed by Phillimore and their influence upon the doctrinal development of canons of interpretation, it is worth noting here some of his rules, as for example: ‘interpretation in the context of the whole treaty’; ‘the rule of considering the ground or reason (ratio legis) in which the treaty originated, and the object of those who were parties to it’; ‘the rule of instituting a comparison between the treaty in dispute and other treaties (prior, posterior or contemporary, upon the same subject and between the same parties to that treaty)’; ‘when a provision or clause in a treaty is capable of two significations, it should be understood in that one which will allow it to operate, rather than in that which will deny to it effect’; or ‘when the same provision or sentence expressed two meanings, it should be adopted that on which most conduces to carry into effect the end and object of the Convention.’
 
167
Orakhelashvili (2008), p. 302.
 
168
Merkouris (2010a), p. 5.
 
169
Zemanek (2009).
 
170
ILC (2007), p. 143. To orient the work towards the preparation of draft articles serving as a basis for an international convention, the International Law Commission appointed the last Special Rapporteur, Sir Humphrey Waldock, in 1961.
 
171
Id, p. 113.
 
172
Id.
 
173
Id, p. 55.
 
174
Id. See Fitzmaurice’s formulation of the ‘major principles’ of interpretation in Fitzmaurice (1957).
 
175
Jacobs (1969), p. 322.
 
176
Id, p. 318.
 
177
Orakhelashvili (2008), p. 305.
 
178
Articles 19(a) of the Harvard Draft provided a more teleological approach:
A treaty is to be interpreted in the light of the general purpose which it is intended to serve. The historical background of the treaty, travaux preparatoire, the circumstances of the parties at the time the treaty was entered into, the change in these circumstances sought to be effected, the subsequent conduct of the parties in applying the provisions of the treaty, and the conditions prevailing at the time interpretation is being made, are to be considered in connection with the general purpose which the treaty is intended to serve.
 
179
Zhang (1933).
 
180
Jacobs (1969), p. 318.
 
181
Zhang (1933).
 
182
Jacobs (1969), p. 322.
 
183
Id, p. 332.
 
184
Harvard Research (1957).
 
185
Id.
 
186
Id.
 
187
Jacobs (1969), p. 322.
 
188
ILC (1964) Article 70: ‘General rules’ provided:
1.
The terms of a treaty shall be interpreted in good faith in accordance with the natural and ordinary meaning to be given to each term-
a)
in its context in the treaty and in the context of the treaty as a whole; and
 
b)
in the context of the rules of international law in force at the time of the conclusion of the treaty.
 
 
2.
If the natural and ordinary meaning of a term leads to an interpretation which is manifestly absurd or unreasonable in the context of the treaty as a whole, or if the meaning of a term is not clear owing to its ambiguity or obscurity, the term shall be interpreted by reference to-
a)
its context and the objects and purposes of the treaty; and
 
b)
the other means of interpretation mentioned in article 71, paragraph 2.
 
 
3.
Notwithstanding paragraph 1, a meaning other than its natural and ordinary meaning may be given to a term if it is established conclusively that the parties employed the term in the treaty with that special meaning.
 
 
189
Id. Article 71: ‘Application of the general rules’ provided:
1.
In the application of article 70 the context of the treaty as a whole shall be understood as comprising in addition to the treaty (including its preamble)—Taking shape in any agreement arrived at between the parties as a condition of the conclusion of the treaty or as a basis for its interpretation; any instrument or document annexed to the treaty; any other instrument related to, and drawn up in connection with the conclusion of the treaty.
 
2.
Reference may be made to other evidence or indications of the intentions of the parties and, in particular, to the preparatory work of the treaty, the circumstances surrounding its conclusion and the subsequent practice of parties in relation to the treaty, for the purpose of:
(a)
confirming the meaning of a term resulting from the application of paragraph 1 of article 70;
 
(b)
determining the meaning of a term in the application of paragraph 2 of that article;
 
(c)
establishing the special meaning of a term in the application of paragraph 3 of that article
 
 
 
190
Article 72—Effective interpretation of the terms (ut res magis valeat quam pereat):
In the application of articles 70 and 71 a term of a treaty shall be so interpreted as to give it the fullest weight and effect consistent — (a) with its natural and ordinary meaning and that of the other terms of the treaty; and (b) with the objects and purposes of the treaty.
 
191
Article 73—Effect of a later customary rule or of a later agreement on interpretation of a treaty:
The interpretation at any time of the terms of a treaty under articles 70 and 71 shall take account of — (a) the emergence of any later rule of customary international law affecting the subject-matter of the treaty and binding upon all the parties; (b) any later agreement between all the parties to the treaty and relating to its subject-matter; (c) any subsequent practice in relation to the treaty evidencing the consent of all the parties to an extension.
 
192
Waldock (1964).
 
193
Van Damme (2009), p. 42. According to Van Damme, the Commission’s decision to codify was based on the relevance of principles such as ‘good faith’ interpretation for the effectiveness of the principle of pacta sunt servanda, the need to interpret other draft articles and the function of principles of interpretation in drafting treaties.
 
194
Waldock (1964).
 
195
Fitzmaurice (1951), p. 1.
 
196
Oppenheim (1921), p. 555. Oppenheim, citing and analysing Phillimore’s rules of interpretation, observes that such rules ‘recommended themselves on account of their suitability’. According to Oppenheim, Phillimore’s mixed intentionalist and textualist views on interpretation are reflected in the following rules:
‘all the treaties must be interpreted in their literal sense; the terms used in the treaty must be interpreted in their usual meaning of everyday language, that they are not expressly used in a certain technical meaning or that another meaning is not apparent from the context; the whole of the treaty must be taken in consideration, if the meaning is doubtful, and not only the wording of the treaty, but also its purpose; in case of discrepancy between the clear meaning of a stipulation and the intention of one party as declared upon negotiations, which preceded the signing of a treaty, the decision must depend on the merits of the case; if two meanings of a stipulation are admissible according to the text of a treaty, such meaning should prevail’.
Oppenheim concludes that the essence of treaty interpretation is a matter, in the first instance, of consent between the contracting parties.
 
197
Id.
 
198
ILC (1964). The ILC admits that the principle of natural and ordinary meaning of the terms is at the core of the textualist approach and is to be determined not in the abstract but by reference to the context in which the terms occur.
 
199
Vitányi (1983).
 
200
Id, p. 49.
 
201
Jacobs (1969), p. 320. The author mentions Lauterpacht’s proposals to the Institute of International Law in 1950, which laid particular stress on recourse to travaux preparatoire in ascertaining the intentions of the parties.
 
202
Id, p. 321.
 
203
Fitzmaurice (1951), p. 7.
 
204
Id.
 
205
Id, p. 5.
 
206
Lauterpacht (1949), p. 52.
 
207
Id.
 
208
Id, p. 53.
 
209
Waldock (1964), p. 56.
 
210
Engelen (2004), pp. 56–57. For example, the ICJ held in The Admission of a State to the United Nations case: ‘The Court considers it necessary to say that the first duty of a tribunal which is called upon to interpret and apply the provisions of a treaty, is to endeavor to give effect to them in their natural and ordinary meaning in the context in which they occur. If the relevant words in their natural and ordinary meaning make sense in their context that is an end of the matter.’ It added: ‘The Court considers that the text is sufficiently clear; consequently, it does not feel that it should deviate from the consistent practice of the Permanent Court of International Justice, according to which there is no occasion to resort to preparatory work if the text of a Convention is sufficiently clear in itself.’
 
211
ILC (1964).
 
212
Id, p. 48.
 
213
Id.
 
214
Id.
 
215
Id.
 
216
Id, p. 62.
Article 74 ‘Treaties drawn up in two or more languages’, provided:
1.
When the text of a treaty has been authenticated in accordance with the provisions of article 7 in two or more languages, the text is authoritative in each language, except in so far as a different rule may be agreed upon by the parties.
 
2.
A version drawn up in a language other than one in which the text of a treaty was authenticated shall also be authoritative, and considered as an authentic text if:
a)
the parties so agree; or
 
b)
the established rules of an international organisation so provide.
 
 
Article 75 ‘Interpretation of treaties having two or more texts or versions’ provided:
1.
The expression of the terms of a treaty is of equal authority in each authentic text, subject to the provisions of the present article. The terms are to be presumed to be intended to have the same meaning in each text and their interpretation is governed by article 70-73.
 
2.
When a comparison between two or more authentic texts discloses a difference in the expression of a term and resulting ambiguity or obscurity as to the meaning of the terms is not removed by the application of articles 70-73, the rules contained in paragraphs 3-5 apply, unless the treaty itself provides that, in the event of divergence, a particular text or method of interpretation is to prevail.
 
3.
If in each of two or more authentic texts a term is capable of being given more than one meaning compatible with the objects and purposes of the treaty, a meaning which is common to both or all the texts is to be adopted.
 
4.
If in one authentic text the natural and ordinary meaning of a term is clear and compatible with the objects and purposes of the treaty, whereas in another it is uncertain owing to the obscurity of the term, the meaning of the term in the former text is to be adopted.
 
5.
If the application of the foregoing rules leaves the meaning of a term, as expressed in the authentic text or texts, ambiguous or obscure, reference may be made to the text or version which is not authentic in so far as it throw light on the intentions of the parties with respect to the term in question.
 
 
217
Id.
 
218
Id.
 
219
Id, pp. 61–62.
 
220
Id.
 
221
Id.
 
222
Id.
 
223
Id, p. 64.
 
224
Article 75, para 4, see supra note 216.
 
225
ILC (1964), p. 65.
 
226
Fitzmaurice (1951), p. 7. G.G. Fitzmaurice specifies that the object of interpretation consists in determining the meaning of the text, which speaks for itself, rather than the intention of the parties, because ‘[a] common intention may not even exist or be very obscure, and if it does not exist, there will be no dispute’ and that the conclusion of the treaty itself must be presumed to express the real intention of the framers of the treaty.
 
227
Id, p. 2.
 
228
Id.
 
229
Id.
 
230
Id.
 
231
Id.
 
232
Jacobs (1969), p. 326.
 
233
Id, p. 327.
 
234
Id, pp. 327–328. And this is, as appreciated by G. Jacobs, ‘the most striking innovation in the interpretative provisions of the Convention’ and the most significant modification of the textual approach as the main characteristic of the second Draft Convention.
Id, p. 321.
 
235
Id.
 
236
Lauterpacht (1949), p. 73. As observed by Lauterpacht, ‘the intention of the parties expressed or implied – is the law’. He implies that whatever considerations of effectiveness or otherwise that tend to transform ‘the ascertainable intention of the parties into a factor of secondary importance’ are detrimental to the true purpose of a treaty.
 
237
Van Damme (2009).
 
238
See the principle of effectivness as formulated in Draft Article 72, in the ILC’s Third Draft on the Law of Treaties (1964), p. 55, supra note 190.
 
239
Besides the principle of effectivness, as part of the general rules of interpretation (provided in Articles 70–75), the (general) principles regarding interpretation of treaties proposed by G. G. Fitzmaurice were clearly defined as follows:
I.
Principle of actuality (or textuality).Treaties are to be interpreted primarily as they stand, and on the basis of their actual texts.
 
II.
Principle of the natural and ordinary meaning. Subject to principle IV below, when applicable, particular words and phrases are to be given their normal, natural, and unstrained meaning in the context in which they occur. This meaning can only be displaced by direct evidence that the terms used are to be understood in another sense than the natural and ordinary one, or if such an interpretation would lead to an unreasonable or absurd result. Only if the language employed is fundamentally obscure or ambiguous may recourse be had to extraneous means of interpretation, such as consideration of the surrounding circumstances, or travaux preparatoire.
 
III.
Principle of integration. Treaties are to be interpreted as a whole, and particular parts, chapters or sections also as a whole.
 
IV.
Principle of effectiveness. Treaties are to be interpreted with reference to their declared or apparent objects and purposes; and particular provisions are to be interpreted so as to give them their fullest weight and effect consistent with the normal sense of the words and with other parts of the text, and in such a way that a reason and a meaning can be attributed to every part of the text.
 
V.
Principle of subsequent practice. In interpreting a text, recourse to the subsequent conduct and practice of the parties in relation to the treaty is permissible, and may be desirable, as affording the best and most reliable evidence, derived from how the treaty has been interpreted in practice, as to what its correct interpretation is.
 
VI.
Principle of contemporaneity. The terms of a treaty must be interpreted according to the meaning which they possessed, or which would have been attributed to them, and in the light of current linguistic usage, at the time when the treaty was originally concluded.
 
 
240
Falk (1967), pp. 334–335.
 
241
Id. Falk mentions the influence of McDougal, Lasswell and Miller’s theory on interpretation of international agreements in the relevant provisions of the final Draft Articles of Treaties of the ILC. According to Falk, for these authors the primary aim of a process of interpretation is to discover the ‘shared expectations’ that the parties to the relevant agreement succeeded in understanding each other to have over it.
 
242
Hernandez (2014), p. 343.
 
243
Gardiner (2008), p. 66.
 
244
Id.
 
245
Id.
 
246
Id.
 
247
Harvard Research (1957), p. 938.
 
248
Id.
 
249
Id.
 
250
ILC (1966), p. 187.
 
251
Koskenniemi (2006), p. 143.
 
252
Engelen (2004), p. 72.
 
253
ILC (1966), p. 228.
Article 27 of the Draft Article (1966) stated:
1.
A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose;
 
2.
The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes (a) Any agreement relating to the treaty which was made between all the parties connection with the conclusion of the treaty; (b) Any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
 
3.
There shall be taken into account, together with the context: (a) Any subsequent agreement between the parties regarding the interpretation of the treaty; (b) Any subsequent practice in the application of the treaty which establishes the understanding of the parties regarding its interpretation; (c) Any relevant rules of international law applicable in the relations between the parties;
 
4.
A special meaning shall be given to a term if it is established that the parties so intended.
 
 
254
Id, p. 220 (emphasis added).
 
255
Id, pp. 219–220.
 
256
Id.
 
257
Id, p. 204.
 
258
Id (emphasis added).
 
259
Id.
 
260
Id.
 
261
Id.
 
262
Jacobs (1969), p. 334. See for comparison with Article 70, which provided in paragraph 2 (a) that ‘If the natural and ordinary meaning of a term leads to an interpretation which is manifestly absurd or unreasonable in the context of the treaty as a whole … shall be interpreted by reference to —a) its context and the objects and purposes of the treaty’.
 
263
ILC (1966), pp. 221–222. These means of interpretation were part of Article 73 of the Draft Articles of the Third Report on the Law of Treaties (1964).
 
264
Id.
 
265
Id.
 
266
McDougal (1967), p. 992.
 
267
Id. McDougal concludes that the ‘ordinary meaning’ expression itself is an invincible term of textuality.
 
268
ILC (1966), p. 204.
Article 28 stated:
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 27, or to determine the meaning when the interpretation according to Article 27: (a) Leaves the meaning ambiguous or obscure; or (b) Leads to a result which is, manifestly absurd or unreasonable.
 
269
Id, p. 220.
 
270
Id.
 
271
McDougal (1967), p. 995.
 
272
ILC (1966) Article 29: ‘Interpretation of treaties in two or more languages’, stated:
1.
When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail.
 
2.
A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree.
 
3.
The terms of the treaty are presumed to have the same meaning in each authentic text, except in the case mentioned in paragraph 1, when a comparison of the texts discloses a difference of meaning which the application of articles 27 and 28 does not remove, a meaning which as far as possible reconciles the texts shall be adopted.
 
 
273
Id, p. 224, paras 6–7. According to the ILC, ‘the first rule for the interpreter is to look for the meaning intended by the parties to be attached to the terms by applying the standard for the interpretation of treaties’.
 
274
Id, para 2.
 
275
Id, para 1.
 
276
Id, para 2.
 
277
Id.
 
278
Id, p. 225, para 7. The ILC stated that ‘The unity of the treaty and of each of its terms is of fundamental importance in the interpretation of plurilingual treaties …’.
 
279
Id, para 8.
 
280
Id. In the Judgment on the Arbitral Award of 31 July 1989, the International Court of Justice held that ‘… [a]rticles 31 and 32 of the Vienna Convention on the Law of Treaties may in many respects be considered as a codification of existing customary international law …’ (I.C.J. Reports 1991, pp. 69–70, para 48).
 
281
VCLT (1969).
 
282
Gardiner (2009).
 
283
Villiger (2009), p. 434. According to Villiger, in its final draft articles on treaty interpretation with regard to Article 27, the ILC makes it clear that the ‘general rule’ in the actual Article 31 functions as a single process of application in which all means will be considered in one.
 
284
Id.
 
285
Id, pp. 434–436. Villiger admits that the starting point in interpretation is ‘ordinary meaning’ but then on equal level follows consideration of the ‘context’, ‘object and purpose’ and ‘any relevant rules of international law’.
 
286
Id.
 
287
Id.
 
288
Id. In respect of paragraph 3(a) and (b), Villiger observes that it differs from paragraph 2 as ‘any subsequent agreement’ and ‘any subsequent practice’ by definition originate after the conclusion of the treaty; however, they are to be equally considered to be the subject matter of the treaty itself.
 
289
French (2006), p. 301.
 
290
ILC (1966), pp. 219–220 (emphasis added).
 
291
Buffa (2010), p. 604.
 
292
Id.
 
293
Merkouris (2010b), pp. 17–19. The author takes each of the terms of the provision into analysis. He observes, for example, that ‘the rules’ create confusion for an interpreter, who should bear in mind not only the principles but also all the relevant rules, be they treaty or customary nature, also the term ‘general’ that could link to regional custom to which the drafters could not contemplate, or the term ‘parties’ that could identify either a party to an agreement (or legal transaction), i.e., a treaty, or a party to a legal dispute.
 
294
Id, p. 34. The author refers to ‘equity’ (advocated by Vattel) in reference to things that ‘tend to the common advantage’ of the contracting parties or ‘useful and salutary to human society’.
 
295
McLachlan (2005), p. 268.
 
296
Id.
 
297
Id.
 
298
Based on treaty terms as drafted at the time of its conclusion.
 
299
Pauwelyn and Elsig (2013), pp. 460–462. The authors define ‘evolutionary’ as ‘meaning at the time the dispute is decided (dynamic, evolves with new developments); addresses problem of treaty rigidity’.
 
300
Id. According to the authors, the WTO, for example, by using broad, unspecified terms such as ‘exhaustible natural resources’, ‘public morals’, ‘essential security interests’ (in GATT Articles XX, XXI), indicates that the drafters of the WTO Agreements intended these terms to evolve with society and international law, foreseeing an evolutionary interpretation to be approached. The authors see this approach as both logical and necessary also in respect of interpreting the ECHR by the ECtHR. I.e., in the Tyrer case, the ECtHR recalled that ‘the Convention is a living instrument which … must be interpreted in the light of the present day conditions … the Court cannot but be influenced by the development and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field’. See also on ‘evolutionary interpretation’ subject: Bjorge (2014).
 
301
ILC (2006), p. 213.
 
302
Pauwelyn and Elsig (2013), p. 460.
 
303
ILC (2006), p. 213 (emphasis added). In the words of the ILC Study Group (at p. 413, para 18): ‘Systemic integration governs all treaty interpretation, the other relevant aspects of which are set out in the other paragraphs of Articles 31 and 32 VCLT. These paragraphs describe a process of legal reasoning, in which particular elements will have greater or less relevance depending upon the nature of the treaty provisions in the context of interpretation.’
 
304
Id, p. 213.
 
305
Id, p. 206.
 
306
Id, p. 211.
 
307
Id, p. 223.
 
308
Id, p. 93. See in this regard the ILC citing the Georges Pinson case (France v. United Mexican States), Award of 13 April 1928, UNRIAA, vol V, p. 422, in which the Permanent Court of Arbitration held that: ‘Every international convention must be deemed tacitly to refer to general principles of international law for all the questions which it does not itself resolve in express terms and in a different way’.
 
309
Id, p. 96.
 
310
Id (the ILC citing Lucius Caflisch and Cancado Trinidade’s Study on European and American conventions on human rights).
 
311
Id, pp. 411–414, paras 237–251. The ILC concludes that jus cogens is expressly non-derogable and that customary international law and general principles of law are of particular relevance to the interpretation of a treaty under Article 31(3)(c) in certain situations, which are ‘when the treaty rule is unclear or open textured; the terms used in the treaty has a recognized meaning in customary international law or under general principles of law; the treaty is silent on the applicable law’.
 
312
Jurisdictional Immunities of the State (Germany v. Italy), ICJ, Judgment of 3 February 2012, p. 27, para 54. The Court held that ‘any entitlement to immunity can be derived only from customary international law, rather than the treaty’.
 
313
Arrest Warrants Case (Democratic Republic of Congo v. Belgium), ICJ Reports 3, 2002, 41 ILM 536, para 58.
 
314
Webb (2013), p. 72. The author states that the Court actually provided a functional justification for an expansion of the categories of persons enjoying immunity rationae personae.
 
315
See, e.g., El Sheemy (2007). The author observes that many writers have disagreed on the desirability of lawmaking on the basis of functional necessity in Arrest Warrants as many were astonished by the ICJ taking this position because there was no apparent legal foundation for rules on which the case was decided.
 
316
Klabbers (2010), p. 35.
 
317
Id, p. 34.
 
318
ILC (2006), p. 27. The ILC admits that ‘systemic integration’ provides in general an acceptable outcome for normative conflict.
 
319
See reference to this case in Chap. 2 of this book.
 
320
Case of Al Adsani v. the United Kingdom, Application no. 35763/97, ECHR, Judgment of 21 November 2001. In principle, the issue concerned whether a state enjoyed immunity from civil suit in the courts of another state where acts of torture are alleged.
 
321
Id.
 
322
Id. See Joint dissenting opinion of Judges Rozakis and Caflisch joined by Judge Wildhaber, Costa, Cabral Barreto and Vajic, pp. 31–35. According to these judges, in the situation of ‘a conflict between a jus cogens rule and any other rule of international law, the former prevails’, and therefore ‘State immunity, deriving from both customary and conventional international law, have never been considered by the international community as rules with a hierarchically higher status’.
 
323
Id, paras 59–60. The ECtHR relied its finding on a number of international instruments/authorities, which demonstrates that the prohibition of torture has gradually been crystallised as a jus cogens rule. Also, the statutes of both the ad hoc tribunals for the Former Yugoslavia and Rwanda, as well as the statute of the International Criminal Court give a definition of this crime.
 
324
Id.
 
325
Id, paras 55–56.
 
326
European Communities – Measures Affecting the Approval and Marketing of Biotech Products, 7 February 2006, WT/DS291-293/INTERIM.
 
327
Id, p. 300, para 7.70.
 
328
European Communities-Measures Concerning Meat and Meat Products (Hormones), 13 February 1998, WT/DS26/AB/R, WT/DS48/AB/R, p. 47, para 123. For the Appellate Body, it was ‘less than clear’ in this case that the precautionary principle has been accepted as general or customary international law. However, the Body held: ‘the principle does not by itself, and without a clear distinction to that effect, relieve a panel from the duty of applying the normal (i.e. customary international law) principles of treaty interpretation in reading the provision of the SPS Agreement’.
 
329
Id.
 
330
Prosecutor v. Omar Hassan Ahmad Al Bashir, Judgment on the appeal of the Prosecutor against the Decision on the Prosecution’s Application for Warrant of Arrest against Omar Hassan Ahmad Al Bashir (ICC-02/05-01/09, P.T.C.I.), Appeals Chamber, 3 February 2010. In the appeal, the prosecution is asked not to establish that there are ‘reasonable grounds to believe’, as required by Article 58(1) of the statute, but to establish the genocidal intent ‘beyond reasonable doubt’, however, without indicating how to apply the standard of proof, given the particular nature of the evidence provided.
 
331
See on this aspect, e.g., Jacobs (2010).
 
332
Prosecutor v. Omar Hassan Ahmad Al Bashir (2009), pp. 53–54, paras 150–151 (‘the only reasonable [one] available on the evidence’).
 
333
Jacobs (2010). The author considers that this is nothing but a multiplication of standards of proof that leads to unnecessary semantic debates on such vague notions as ‘reasonableness’ and serves to prolong the proceedings. See the analogy with the Genocide case (2007), where the ICJ established a high threshold for the finding of control of non-state actors by a state for the purpose of attribution to the state of the acts of those non-actors. The ICJ found in Genocide that Serbia did not have ‘effective control’ over the Bosnia-Serb paramilitary forces accused of purported acts of genocide, but it found, however, a breach of Serbia’s duty to prevent genocide.
 
334
Sands (1998), p. 95 (emphasis added).
 
335
Villiger (2009). Villiger observes that the ‘special meaning’ is often to be found in the technical or historical context of specialised treaties.
 
336
Id, pp. 436–437.
 
337
Mortenson (2013), p. 780.
 
338
Buffa (2010), p. 604.
 
339
Mortenson (2013), p. 781 (emphasis added).
 
340
Id, p. 821.
 
341
Id.
 
342
Id, p. 788.
 
343
Id, p. 821 (emphasis added).
 
344
Villiger (2009), p. 436. The author enumerates some of the supplementary means, included but not listed in Article 32., e.g: travaux preparatoire of the earlier version of the treaty, interpretative declaration made by treaty parties which does not qualify as a reservation; documents not strictly labeled as travaux preparatoire, the rational techniques of interpretation, such as per a contrario, contra proferentem, expresio unius est exclusio alterius, lex posterior derogat legi priori, lex specialis, etc.
 
345
Waibel (2011), p. 573.
 
346
See, e.g., Merrills (1968) (emphasis added). Also, for a similar opinion, see Van Damme (2009), pp. 605–648; Merkouris (2010a, b).
 
347
Villiger (2009), pp. 459–460.
 
348
See the comparison between Articles 74–75 and Article 29 regarding the teleological approach, supra note 216.
 
349
Gardiner (2008), p. 357.
 
350
Id.
 
351
Id.
 
352
Id.
 
353
Linderfalk (2007), p. 356.
 
354
Id, p. 359.
 
355
Id, p. 363.
 
356
Id.
 
357
Id.
 
358
Despite each approach tried to impose the principle governing the process of interpretation.
 
359
Abi-Saab (2010), p. 105.
 
360
Id, p. 106.
 
361
Id. The author gives a great deal to the specificity of the subject matter of forums, which ‘may affect the relative weight attributed to the various principles of interpretation’.
 
362
Linderfalk (2007), pp. 273–274.
 
363
Klabbers (2010), p. 29. As the author notes, interpretation depends of interpretative community as well (and can come to radically different conclusions of one and the same text, and can do so by relying also on rules of interpretation).
 
364
Id.
 
365
Id.
 
366
Id, p. 23.
 
367
Id.
 
368
Id, p. 33.
 
369
Id, p. 31.
 
370
Id, pp. 30–31 (emphasis added).
 
371
Id.
 
372
Merkouris (2010a), p. 11. See also on this point, e.g., Van Damme (2009).
 
373
Gardiner (2008).
 
374
Toufayan (2005), p. 19 (emphasis added).
 
375
As pointed earlier in Sect. 3.3.2.1.1 of this chapter, the New Haven School leaves the use of the travaux preparatoire to the discretion of the decision-maker interpreter, but for this school a treaty and its travaux preparatoire are equally valid sources of interpretation. See above: Harvard Research in International Law (1957), p. 938.
 
376
See the ILC (1966), pp. 219–220.
 
377
Id.
 
378
Gardiner (2008), p. 67 (emphasis added).
 
379
Lévesque (2006), p. 53.
 
380
Id.
 
381
Id.
 
382
Id.
 
383
See ILC’s Summary records of the sixteenth session (1964), 1:23; the comment of the Chairman-member of the International Law Commission.
 
384
Id.
 
385
Van Damme (2009).
 
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Metadata
Title
Treaty Interpretation
Author
Liliana E. Popa
Copyright Year
2018
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_3