Skip to main content
main-content

Über dieses Buch

This book investigates whether treaty interpretation at the ECtHR and WTO, which are sometimes perceived as promoting ‘self-contained’ regimes, could constitute a means for unifying international law, or, conversely, might exacerbate the fragmentation of international law. In this regard, the practice of the ICJ on treaty interpretation is used for comparison, since the ICJ has made the greatest contribution to the development and clarification of international law rules and principles. Providing a critical analysis of cases at the ICJ, ECtHR and WTO, both prior to and since the adoption of the 1969 Vienna Convention on the Law of Treaties, the book reveals how the ECtHR and WTO apply the general rules of treaty interpretation in patterns which are similar to those used by the ICJ to address difficulties in interpreting the text of treaties. Viewed in the light of the ECtHR’s and WTO’s interpretative practices, both the VCLT’s general rules of interpretation and the ICJ’s interpretative practice serve to counteract the fragmentation of international law.

Inhaltsverzeichnis

Frontmatter

Chapter 1. Introduction

Abstract
Interpretation in philosophy and in law is a venerable topic, older than two millennia. In spite of the arguments exchanged by philosophers and jurists alike during those millennia, not all the issues related to ‘interpretation’ could be settled definitively. In law, from the nineteenth century onwards, and with the advancement of modern civil codes in municipal law of continental Europe, the topic of ‘interpretation’ has received renewed consideration (Koskenniemi 2001). Initially, general rules of interpretation were laid down in the nineteenth century following Roman law ideas. As national laws evolved and diversified, ideas about legal interpretation also evolved, so in the twentieth century legal scholars were able to provide a more nuanced picture of the concept of ‘interpretation’ (Pound 1923; Curtis 1949). Meanwhile, on the international arena, several developments have made even more visible the potential of ‘legal interpretation’ to operate as one of the cornerstones of the international legal system. Thus, after the end of World War II, a complex array of international organisations was created, and numerous treaties were adopted. Later, after the end of the Cold War and with the advancement of a globalised world, characterised by a pluralistic legal order, this picture complicated further as the number of international judicial bodies, and the treaties that they were entrusted with, multiplied apace. It is not surprising then that, in this intellectual milieu, one of the problematic topics of international law, especially in the past two decades, has been whether the multiplication of international judicial bodies leads to the fragmentation of international law. Accordingly, the topic of treaty interpretation has received in the last decade a great deal of attention, especially in relation to the issues of the possible fragmentation of international law that may result from the proliferation of international adjudication fora. Thus, how treaty interpretation is undertaken by international judicial bodies, especially by specialised adjudicatory bodies, is perceived in the scholarship as one of the most salient topics of international law.
Liliana E. Popa

Chapter 2. Does Proliferation of International Judicial Bodies Lead to the Fragmentation of International Law?

Abstract
In the past two decades, two phenomena, one occurring at the international level and one more theoretical, have preoccupied the scholarly analysis of international courts and tribunals. The occurring phenomenon is the proliferation or multiplication of international judicial bodies, witnessed in the international law towards the end of the twentieth century. The more ‘theoretical’ phenomenon is the possible fragmentation of international law that may accompany the proliferation (or multiplication) phenomenon. This chapter provides an overview of these two phenomena in international law. It reviews the concepts of ‘international judicial body’, ‘proliferation of judicial bodies’, ‘international law’, ‘unity of international law’, ‘fragmentation of international law’, ‘lex specialis’, ‘lex generalis’, ‘forum shopping’, ‘self-contained regime’. The chapter also examines the main scholarly views on the ‘fragmentation’ phenomenon advanced in the scholarship and provides a response to the question of whether the creation of multiple international judicial forums is likely to become a cause of fragmentation in international law. The overview and the analyses offered in this chapter are intended to provide the necessary theoretical background that will inform the response to the main questions of this study: whether the practice on treaty interpretation of two relatively new specialised courts, the ECtHR and WTO (the Appellate Body), may contribute to the fragmentation of international law, or otherwise such practices could constitute tools for keeping the coherence and unity of international law.
Liliana E. Popa

Chapter 3. Treaty Interpretation

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.
Liliana E. Popa

Chapter 4. PCIJ/ICJ Practice on Treaty Interpretation

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.
Liliana E. Popa

Chapter 5. Treaty Interpretation at the European Court of Human Rights

Abstract
This chapter examines the ways in which the European Court of Human Rights (ECtHR/Strasbourg Court) applies the customary rules of treaty interpretation. Based on analyses of cases decided by the ECtHR, it argues that the methods of approaching the customary rules of treaty interpretation by this specialised court did not differ prior to, and after, the adoption of the VCLT and have been applied in patterns similar to those of the ICJ. This uniform application of customary rules of interpretation by the ECtHR has contributed to enhancing the formation of these rules as customary and to expanding the understanding of the universal applicability of the VCLT general methodology of treaty interpretation (Articles 31–33). Moreover, the autonomous or specific concept doctrines (techniques) of interpretation developed by the Strasbourg Court do not appear to replace or impede the application of the customary rules of interpretation when this Court interprets the Convention (ECHR) provisions. However, the application of the customary rules of treaty interpretation appears to play an important role in shaping the ECtHR’s own treaty interpretative approach. The isolated cases when the ECtHR appears to deviate from the basic (standard) rule of interpretation provided by Article 31(1)(2) of the VCLT do not form an interpretative path, as the ECtHR has shown willingness to ‘revert’ after such decisions to an interpretative path that is more in line with the VCLT standard of interpretation and with its own previous approaches. The argument based on the examination of cases developed in this chapter thus provides an empirical response to the theoretical discussion related to the possible ‘self-contained’ nature of the human rights regimes. It allows for assessing whether the interpretative practice of the ECtHR could be a tool for unification of an alleged fragmented landscape of international law or it contributes to fragmentation in international law.
Liliana E. Popa

Chapter 6. Treaty Interpretation at the World Trade Organization

Abstract
This chapter examines the ways in which the dispute settlement mechanism at the World Trade Organization (WTO) applies the customary rules of treaty interpretation of public international law. Similarly to the selection of the ECtHR, the selection of the WTO as a testing case for the uniform development of customary rules and principles of treaty interpretation allows for a through test of the conclusions drawn in respect of the ICJ’s interpretative practice. This chapter supports the argument that the WTO adjudicative bodies, generally, use patterns of reasoning which resemble those of the ICJ when applying the general rules/methods and principles of interpretation to solve treaty interpretation difficulties (e.g., insufficient clarity, ambiguity, obscurity, vagueness or silence in the language of the treaty text). Based on case law analyses, I argue that in interpreting the provisions of the WTO Agreement, the WTO adjudicative bodies (panels and the Appellate Body) have generally tended to apply holistically the customary rules of interpretation, in successive steps, equally valuing all these rules, regardless of whether they are applied explicitly or implicitly, or with an emphasis on one of the rules or another. This chapter’s analysis shows that such an approach, which I termed ‘overbuilding’, has been commonplace also for the ICJ in its practice on treaty interpretation. In addition, a consistency in the treaty interpretative approaches adopted by the GATT/WTO adjudicative bodies prior to, and after the adoption of the 1969 VCLT is evidenced. Also, the analysis here shows that a relation between the treaty interpretative practices of the WTO and ICJ exists and that the WTO dispute settlement practice appears to be highly influenced by the ICJ’s long experience on treaty interpretation and, generally, on international law. This determination provides an empirical response to the theoretical discussion related to the possible ‘self-contained’ nature of the WTO economic regime and allows for an answer to the more general question of whether the practice of application of general international law (lex generalis) by a specialised adjudicative body would contribute to, or exacerbate the fragmentation of international law.
Liliana E. Popa

Chapter 7. Conclusions

Abstract
The process of adjudication in international law is thought to involve a wide range of activities and institutions. Some of the judicial institutions adjudicating treaty disputes have been perceived as ‘self-contained regimes’ and more politically active than others (especially the WTO, ECtHR and CJEU), promoting judicial activism and thus becoming a potential threat to the global unity and efficacy of the international legal order. This judicial activism of some international courts and tribunals has generated a fear of fragmentation of international law and a wide ongoing debate. However, in order to admit or reject the theoretical proposition advanced in the legal scholarship that the proliferation of international judicial bodies may create chaos in the international legal system, leading to fragmentation of international law, I considered it essential to examine comparatively in this book the practices of the general (ICJ) and two specialised courts (ECTHR and WTO) on the application of general rules of treaty interpretation of public international law as reflected in the 1969 VCLTs general rule of interpretation. What I did not purport, however, to provide in this book was an extensive argument/discussion or contribution to the debate related to the fragmentation of international law. My goal was to provide several specific key findings related to the treaty interpretative trends of two different international specialised courts, the ECtHR and WTO, compared with the ICJ, as a general international court, and to to assess the impact of the two specialised courts’ practices on treaty interpretation upon the international law’s unity.
Liliana E. Popa

Backmatter

Weitere Informationen

Premium Partner

    Bildnachweise