The Evolutionary Interpretation of Treaties [1 ed.] 0198716141, 9780198716143

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Table of contents :
Foreword
Contents
Table of Cases
Table of Legislation
List of Abbreviations
1. Introduction
2. Different Regimes, Different Methods of Interpretation?
3. The Means of Interpretation Admissible for the Establishment of the Intention of the Parties
4. The Intertemporal Law
5. Evolutionary Interpretation, Or Not? Evolutionary Interpretation and Jurisdiction Ratione Temporis
6. Conclusion: Evolution Intended
Bibliography
Index

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The Evolutionary Interpretation of Treaties [1 ed.]
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T H E E VOLU T ION A RY I N T E R PR E TAT ION OF T R E AT I E S

The Evolutionary Interpretation of Treaties E I R I K BJORG E

1

1 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Eirik Bjorge 2014 The moral rights of the author‌have been asserted First Edition published in 2014 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2014934938 ISBN 978–0–19–871614–3 Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

Foreword A treaty. An international court or Tribunal. Two states. The search for meaning. Submissions are made by the parties as to the ‘correct’ or ‘best’ interpretation of the treaty. Recourse is had to the canons of interpretation in the Vienna Convention on the Law of Treaties. Terms like ‘good faith’, ‘ordinary meaning’, ‘object and purpose’ are repeated like incantations. So too, almost as often, terms like ‘subsequent agreement’, ‘subsequent practice’ and ‘evolutionary interpretation’ reverberate. One sometimes wonders what has happened to the actual text of the treaty to be interpreted, blanketed as it now is in interpretative theory. In this careful and lawyerly study, Eirik Bjorge cuts through all this, drawing our attention back to basics. First and above all one has to look at the text of the treaty. The text, in its authentic language(s), is the primary expression of the common intention of the parties. This common intention is to be determined objectively by applying the canons of interpretation established in Articles 31–33 of the Vienna Convention. Bjorge points out that the evolutionary interpretation of treaties is nothing more than that: an expression of the traditional canons of treaty construction. It is a method suited for all treaties, not just one class. It is a method for all international tribunals, not just one. But how much interpretation can the text stand? It is this question that encapsulates the quest for meaning. Take the Navigational and Related Rights case as an example. The text in question was the Treaty of Limits, concluded between Costa Rica and Nicaragua in 1858. Lengthy submissions were made by both states as to the correct interpretation of a simple expression, ‘libre navegación . . . con objetos de comercio’ (ICJ Reports 2009, paras 43–71). The Court read the text as ‘for the purposes of commerce’, as Costa Rica had argued, and not ‘with objects of trade’, in Nicaragua’s contrary argument. The freedom accordingly encompassed not only the transport of goods but also the transport of people, including tourists. If one considers evolutionary interpretation to involve bringing a treaty up to speed with modern times, then the Court engaged in such an interpretation. It considered the term ‘commerce’ as having its modern meaning, rather than the one it had during the conclusion of the Treaty of Limits. But in truth it was not necessary to engage in such an interpretation because the 1859 traveller was in evidence (the principal use of the ‘Nicaragua route’ in the mid-19th century was for transit of persons to California). Although evolutionary interpretation was hardly necessary, the Court interpreted the text on the basis that some terms had a ‘meaning or content capable of evolving’ (para 64). Take, by contrast, Whaling in the Antarctic. The text in question was the International Convention for the Regulation of Whaling 1946, Article VIII, which permitted nationals of states parties to obtain a permit authorizing them to ‘kill, take and treat whales for purposes of scientific research’ (ICJ Reports 2014, para 43). The expression ‘scientific research’ was intensely disputed. The Court referred to the Convention as ‘an evolving instrument’ (para 45), but it did not seem to

vi

Foreword

engage in an evolutionary interpretation. It accepted that the term scientific research could include ‘lethal methods’, but it rejected the criterion (which the parties had accepted) that lethal methods ‘must avoid an adverse effect on the relevant stocks’ (para 85). In a case where an evolutionary interpretation might have seemed called for to bring the Convention in line with modern understandings of the preservation of whale stocks, the Court insistently did not ‘devise any alternative’ criteria (para 86): it decided the case on the facts as put in evidence. We seem to have a Court that is evolutionary when it is not really necessary but not evolutionary when the text invites such an interpretation. For his part, Bjorge has grasped the heart of the Vienna Convention. With the object and purpose of the treaty of treaties in mind—determining the true intention of the parties—he incisively analyses an array of cases from a series of international tribunals. Given a solid grounding in the Vienna Convention, Bjorge reveals as clear and unitary what others with their categories have struggled to understand. James Crawford AC, SC, FBA Lauterpacht Centre for International Law University of Cambridge 14 April 2014

Contents Table of Cases Table of Legislation List of Abbreviations

ix xx xxiii

1. Introduction 1.1 Research Question and Argument 1.2 Impermissibility of Courts Reconstructing Treaty Obligations 1.3 Outline of the Positions with Which this Book Takes Issue 1.4 Methodological Questions

1 1 6 9 14

2. Different Regimes, Different Methods of Interpretation? 2.1 Introduction 2.2 Constitutional Treaties, Human Rights Treaties, ‘Ordinary Treaties’ 2.3 Systemic Coherence in both Content and Method 2.4 Conclusion

23 23 31 48 54

3. The Means of Interpretation Admissible for the Establishment of the Intention of the Parties 3.1 Introduction 3.2 Evolutionary Interpretation and Good Faith 3.3 Evolutionary Interpretation and the Intention of the Parties 3.4 Conclusion

56 56 63 76 139

4. The Intertemporal Law 4.1 Introduction 4.2 Normative Criticisms of the Principle of Intertemporality 4.3 Jus Cogens Superveniens: Peremptory Norms and Time 4.4 Conclusion

142 142 150 161 167

5. Evolutionary Interpretation, Or Not? Evolutionary Interpretation and Jurisdiction Ratione Temporis 5.1 Introduction 5.2 Jurisdiction Ratione Temporis in the European Court of Human Rights 5.3 The Traditional Doctrine of Jurisdiction Ratione Temporis 5.4 Conclusion

168 168 169 174 183

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Contents

6. Conclusion: Evolution Intended 6.1 Intention of the Parties and Evolution 6.2 One Coherent Method of Treaty Interpretation 6.3 Evolving International Law 6.4 A Redundant Concept?

188 188 189 191 191

Bibliography Index

195 209

Table of Cases PE R M A N E N T C OU RT OF I N T E R N AT ION A L J US T IC E Acquisition of Polish Nationality PCIJ (1923) Series B No 7�� 7, 9, 32, 34, 73, 135 Case of the SS ‘Wimbledon’ (1923) PCIJ Series A No 1��24, 34, 47, 49, 51, 93, 111, 189 Certain German Interests in Polish Upper Silesia (Merits) (1926) PCIJ Series A No 7�� 65 Competence of the International Labour Organisation to Regulate, Incidentally, the Personal Work of the Employer (1926) PCIJ Series B No 13, 6��32 Convention concerning Employment of Women during the Night PCIJ (1932) Series A/B No 50��125, 140–1, 192 Delimitation of Polish–Czechoslovak Frontier (Question of Jaworzina) (1923) PCIJ Series B No 8��32 Delimitation of the Serbo–Albanian Frontier (Monastery of Saint-Naoum) (1924) Series B No 9��32 Electricity Company of Sofia and Bulgaria (Belgium v Bulgaria) (1939) PCIJ Rep Ser A/B No 77�� 32, 138, 179, 180, 184–7 Exchange of Greek and Turkish Populations (Advisory Opinion) (1925) PCIJ Series A No 10, 6 ��24 Factory at Chorzow (Merits) (Judgment No 13) (1928) PCIJ Series A No 17 �� 16, 65 Free Zones of Upper Savoy and the District of Gex, Order of 6 December (1930) PCIJ Series A No 24�� 65 Free Zones of Upper Savoy and the District of Gex, Order of 6 December (1932) PCIJ Series A/B No 46��56 German Settlers in Poland (1923) PCIJ Series B, No 6, 19��32, 34 Greco–Bulgarian Communities (1930) PCIJ Series B No 17 ��33 Interpretation of the Greco–Turkish Agreement of December 1, 1926 (1928) PCIJ Series B No 16 ��32 Interpretation of the Statute of the Memel Territory (1932) PCIJ Series A/B No 49 ��56 Interpretation of the Treaty of Lausanne, Article 3, paragraph 2 (1925) PCIJ Ser B, No 12 �� 57, 80 Jurisdiction of the Courts of Danzig (‘Danzig Railway Officials’) (1928) PCIJ Series B No 15 ��34, 80, 84–5, 94–6 Jurisdiction of the European Commission of the Danube (1927) PCIJ Series B No 14 ��32 Legal Status of Eastern Greenland (Judgment) (1933) PCIJ Series A/B No 53�� 146 Lighthouses Case between France and Greece (Judgment) (1934) PCIJ Series A/B No 62��8, 61, 70, 93–4, 190 Mavrommatis Palestine Concessions (1924) PCIJ Rep Ser A No 2��176–8 Minority Schools in Albania (1935) PCIJ Ser A/B, No 64�� 32, 113 Nationality Decrees Issued in Tunisia and Morocco (French Zone) (Advisory Opinion) (1923) PCIJ Series B No 4�� 24, 79, 119, 136 Phosphates in Morocco (1938) PCIJ Rep Ser A/B No 74��172, 176, 179 Polish Postal Service in Danzig (1925) PCIJ Series B No 11 ��34, 42 Rights of Minorities in Upper Silesia (Minority Schools) (1928) PCIJ Series A No 15 ��32, 34, 36, 117

x

Table of Cases

Territorial Jurisdiction of the International Commission of the River Oder (1929) PCIJ Series No 23 ��32, 94 The Borchgrave Case (Preliminary Objections) PCIJ (1937) Series A/B No 72 ��60 I N T E R N AT ION A L C OU RT OF J US T IC E Admissibility of Hearings of Petitioners by the Committee on South West Africa (Advisory Opinion) [1956] ICJ Rep 23��32 Aegean Sea Continental Shelf [1978] ICJ Rep 22 ��8, 58, 77, 79, 80, 136, 143, 167 Aerial Incident of 27 July 1955 (Israel v Bulgaria) (Preliminary Objections) [1959] ICJ Rep 127 ��68 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Preliminary Objections) [2007] ICJ Rep 582 ��48–9 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Merits) (Judgment) [2010] ICJ Rep 639�� 48–9, 51–3 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), Compensation (Judgment) [2012] ICJ Rep 324 ��48–50, 54 Ambatielos case (Jurisdiction) (Judgment) [1952] ICJ Rep 28�� 36, 101, 115, Anglo–Iranian Oil Co Case (Jurisdiction) (Judgment) [1952] ICJ Rep 93��71 Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947 (Advisory Opinion) [1988] ICJ Rep 57 �� 16 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) [2007] ICJ Rep 43 ��82, 110, 177–8 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia Herzegovina v Serbia and Montenegro) (Preliminary Objections) [1996] ICJ Rep 595��176–8 Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v Russian Federation) (Provisional Measures) [2008] ICJ Rep 353 ��138 Armed Activities on the Territory of the Congo (DRC v Uganda) [2005] ICJ Rep 168 ��138 Avena and Other Mexican Nationals [2004] ICJ Rep 12 ��82 Barcelona Traction, Light and Power Co Ltd (Judgment) [1970] ICJ Rep 3 ��68 Case concerning Right of Passage over Indian Territory (Merits) (Judgment) [1960] ICJ Rep 6�� 138–9, 145, 180, 184 Case of Certain Norwegian Loans (Judgment) [1957] ICJ Rep 9 �� 36, 61, 93, 112, 134 Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter) (Advisory Opinion) [1962] ICJ Rep 151 �� 32, 70, 132 Certain Property (Liechtenstein v Germany) (Preliminary Objections) (Judgment) [2005] ICJ Rep 25��172, 180, 184 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France) (Judgment) [2008] ICJ Rep 177��112, 115 Competence of the General Assembly for the Admission of a State to the UN (Advisory Opinion) [1950] ICJ Rep 4 �� 110 Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter) (Advisory Opinion) [1948] ICJ Rep 57��65–6 Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization (Advisory Opinion) [1960] ICJ Rep 150��36, 112, 115 Continental Shelf (Libya/Malta) [1995] ICJ Rep 13��82 Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) Judgment [2009] ICJ Rep 213��1–3, 5, 9–10, 21, 32, 41, 45–6, 51, 58–9, 61, 74, 76–7, 79–80, 82, 93, 107, 113, 120, 126, 136, 139, 141, 190, 192–3

Table of Cases

xi

Effect of Awards of Compensation made by the UN Administrative Tribunal (Advisory Opinion) [1954] ICJ Rep 47�� 32, 131 Elettronica Sicula SpA (ELSI) (United States v Italy) [1989] ICJ Rep 15��44 Fisheries Jurisdiction (Federal Republic of Germany v Iceland) (Jurisdiction) (Judgment) [1973] ICJ Rep 18�� 65 Fisheries Jurisdiction (Spain v Canada) Jurisdiction of the Court (Judgment) [1998] ICJ Rep 432 �� 101 Frontier Dispute (Burkina Faso/Mali) [1986] ICJ Rep 554 ��82 Gabčíkovo–Nagymaros Project (Hungary/Slovakia) (Judgment) [1997] ICJ Rep 7�� 58, 79–80, 82, 112, 115, 119 Interpretation of Peace Treaties (Second Phase) (Advisory Opinion) [1950] ICJ Rep 221 �� 7, 70 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt [1980] ICJ Rep 73�� 64, 154 Judgment No 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development (Advisory Opinion) [2012] ICJ Rep 10��33 Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) [2012] ICJ Rep 99 ��46 Jurisdictional Immunities of the State (Germany v Italy) (Counter-Claim) (Order) [2010] ICJ Rep 310 �� 179 Kasikili/Sedudu Island (Botswana/Namibia) (Judgment) [1999] ICJ Rep 1045�� 78, 82, 89, 93, 115, 127, 153, 157–8 LaGrand (Germany v United States of America) (Judgment) [2001] ICJ Rep 466�� 36, 50, 53, 82, 112, 116–17 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening) (Judgment) [2002] ICJ Rep 303 �� 4, 13–14, 58, 127, 143 Land and Maritime Boundary between Cameroon and Nigeria (Preliminary Objections) (Judgment) [1998] ICJ Rep 275 �� 65 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) [1992] ICJ Rep 351 ��68 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) [1971] ICJ Rep 35��8, 19, 32, 37, 58, 61, 63, 75, 77, 79–80, 129–30, 139, 143 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136�� 82, 112, 138, Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Request by WHO) (Advisory Opinion) [1996] ICJ Rep 66��37, 189 Legality of the Use of Force (Serbia and Montenegro v Belgium) (Preliminary Objections) (Judgment) [2004] ICJ Rep 279�� 110–11 Maritime Delimitation and Territorial Questions between Qatar and Bahrain [1995] ICJ Rep 6�� 66, 110 Military and Paramilitary Activities in and against Nicaragua [1986] ICJ Rep 14�� 36, 115 Minquiers and Ecrehos Case (France/United Kingdom) (Judgment) [1953] ICJ Rep 47�� 146 Nuclear Tests (Australia v France) (New Zealand v France) ICJ Rep 1974 253�� 65, 66 North Sea Continental Shelf (Federal Republic of Germany/Netherlands; Federal Republic of Germany/Denmark) [1969] ICJ Rep 3��12 Oil Platforms (Islamic Republic of Iran v United States of America) (Preliminary Objection) (Judgment) [1996] ICJ Rep 803 ��36, 82, 112, 116 Pulau Ligitan/Sipadan [2002] ICJ Rep 625�� 82, 110 Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Judgment) [2012] ICJ Rep 422��36, 112–13, 116

xii

Table of Cases

Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174��32, 37, 131–2 Reservations to the Convention on Genocide (Advisory Opinion) [1951] ICJ Rep 15 �� 34, 36–7, 40, 61, 84, 93, 112, 115, 134, 189 Right of Passage (Portugal/India) [1960] ICJ Rep 6 ��138, 143, 145, 183–4 Right of Passage over Indian Territory (Preliminary Objections) [1957] ICJ Rep 125 ��25 Rights of Nationals of the United States of America in Morocco (France v United States of America) [1952] ICJ Rep 176�� 7, 65, 70, 123, 143 South West Africa—Voting Procedure, Advisory Opinion [1955] ICJ Rep 67�� 32, 75, 81 South West Africa, Second Phase (Judgment) [1966] ICJ Rep 6�� 19 South-West Africa Cases (Ethiopia and Liberia v South Africa) (Preliminary Objections) [1962] ICJ Rep 319 �� 32, 36, 112 Sovereignty over Certain Frontier Land [1959] ICJ Rep 209�� 85, 113 Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) [2008] ICJ Rep 12��4, 143, 154 Status of South-West Africa [1950] ICJ Rep 132��32 Temple of Preah Vihear (Cambodia v Thailand) (Preliminary Objections) (Judgment) [1961] ICJ Rep 17�� 143, 145, 191 Territorial Dispute (Libya/Chad) (Judgment) [1994] ICJ Rep 6��3, 8, 36, 69, 82, 91, 110–12, 190 United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) [1980] ICJ Rep 3�� 24, 36, 49, 52, 115 Western Sahara (Advisory Opinion) [1975] ICJ Rep 12 ��119–20, 127–8, 152–3 Whaling in the Antarctic (Australia v Japan: New Zealand Intervening) (Judgment) 31 March 2014��68, 80–2, 120 T R I BU N A L S OF A D HO C J U R ISDIC T ION Abyei Arbitation (Government of Sudan/Sudan People’s Liberation Movement/ Army) (2009) 144 ILR 348�� 112 Affaire Chevreau (France v Royaume-Uni) (1931) 2 RIAA 1113; (1933) 27 AJIL 153��93 Affaire de l’île de Timor (Pays-Bas c Portugal) (1914) 11 RIAA 481�� 93, 99 Affaire de l’indemnité russe (Russie/Turquie) (1912) 11 RIAA 421�� 71, 80 Affaire de la Compagnie agricole du détroit de Puget (1869) 2 Recueil des arbitrages internationaux 513�� 4, 143 Affaire de la Dette publique ottomane (Bulgarie, Irak, Palestine, Transjordanie, Grèce, Italie et Turquie) (1925) 1 RIAA 529 ��93 Affaire des boutres de Mascate (France c Grande-Bretagne) (1905) 11 RIAA 83��25, 118 Affaire relative à l’interprétation du traité de commerce conclu entre l’Italie et la Suisse le 13 juillet 1904 (Italie/Suisse) (1911) 11 RIAA 257��71 Affaire relative à l’or de la Banque nationale d’Albanie (1953) 12 RIAA 12 ��112, 117 Affaire relative à la concession des phares de l’Empire ottoman (Grèce c France) (1956) 12 RIAA 155��93 Air Services Agreement of 27 March 1946 (United States v France) (1978) 54 ILR 303�� 30 Alsing Trading Co v The Greek State (1954) 23 ILR 633 �� 65 Argentina/Chile Frontier Case (Palena) (1966) 16 RIAA 109; (1966) 38 ILR 10�� 2, 60–1, 93, 96 Award in the Arbitration regarding the Iron Rhine (‘Ijzeren Rijn’) (Belgium v Netherlands) (2005) 27 RIAA 35��2, 5, 8–9, 13, 36, 42, 47, 52, 56, 58, 83, 91, 112, 118–19, 159, 190 Award of the Alaska Boundary Tribunal (1903) 15 RIAA 490�� 4, 143

Table of Cases

xiii

Award of the Tribunal of Arbitration between the United States of America and the Kingdom of Norway under the Special Agreement of June 30, 1921 (1923) 17 AJIL 362��46 Baer Case (1959) 14 RIAA 402 ��72–3 Banks of Grisbadarna (Sweden v Norway) (1909) 11 RIAA 155�� 147–8, 158 British Claims in the Spanish Zone of Morocco (1925) 2 RIAA 722; (1923–24) 2 Annual Digest and Reports of Public International Law Cases 19 ��10–11, 44, 140 Cape Horn Pigeon (United States v Russia) (1902) 9 RIAA 63 ��145, 148 Carolines, 22 October 1885, reprinted in MC Calvo, Le droit international: théorique et pratique (6th edn, Pedone, 1888), 420��149–50 Case Concerning a Boundary Dispute between Argentina and Chile Concerning the Delimitation of the Frontier Line between Boundary Post 62 and Mount Fitzroy (1994) 22 RIAA 3 ��7, 70, 127 Case Concerning the Auditing of Accounts between the Kingdom of the Netherlands and the French Republic Pursuant to the Additional Protocol of 25 September 1991 to the Convention on the Protection of the Rhine against Pollution by Chlorides of 3 December 1976 (Netherlands/France) (2004) 25 RIAA 267; (2004) 144 ILR 259�� 2, 5, 67, 69, 110–11, 122, 190 Case Concerning the Delimitation of Maritime Areas between Canada and the French Republic (1992) 31 ILM 1149��46 Case Concerning the Delimitation of Maritime Boundary between Guinea-Bissau and Senegal (1989) 20 RIAA 119�� 4, 7, 58, 143, 165 Cayuga Indians (Great Britain) v United States (1926) 6 RIAA 173��69 CH White (United States v Russia) (1902) 9 RIAA 71��145, 149 Decision regarding delimitation of the border between Eritrea and Ethiopia (2002) 25 RIAA 83; (2002) 130 ILR 1��2, 4, 6, 60–1, 70, 93, 121–2, 127, 143 Différend concernant l’accord Tardieu-Jaspard (Belgium/France) (1930) 3 RIAA 1701��25 Dispute between Argentina and Chile concerning the Beagle Channel (1977) 21 RIAA 53�� 8, 9, 52, 101, 190 Dispute concerning Filleting within the Gulf of St Lawrence (‘La Bretagne’) (Canada/France) (1986) 82 ILR 591 �� 35, 46, 58, 83, 121, 125 Diverted Cargoes Case (Greece v United Kingdom) (1955) 12 RIAA 53�� 70, 94, 99 Enterprize in A de Lapradelle and N Politis, Recueil des arbitrages internationaux I (Pedone, 1905), 703�� 145 Eritrea v Yemen (Phase One: Territorial Sovereignty and Scope of the Dispute) (1998) 114 ILR 1�� 4, 143 FH Neer and Pauline Neer v United Mexican States (1926) 3 ILR 213; (1926) 4 RIAA 60; (1927) 21 AJIL 555��43–5 Guiana Boundary (Brazil/Great Britain) (1904) 11 RIAA 11�� 157 Hermosa and Créole in A de Lapradelle and N Politis, Recueil des arbitrages internationaux I (Pedone, 1905), 703�� 145 Hopkins (1926) 3 ILR 229��44 Indus Waters Kishenganga Arbitration (Pakistan v India) (Partial Award) (2013) 154 ILR 1�� 82, 112 Interpretation of Article 78(7) of the Peace Treaty with Italy 1947 (Franco–Ethiopian Railway Co claim) (1956) 24 ILR 602 �� 65 Island of Clipperton (Mexico v France) (1931) 2 RIAA 1105�� 156 Island of Palmas (Netherlands v United States of America) (1928) 2 RIAA 829 �� 4, 47, 144–7, 149–55, 158–61, 163, 167 Italy–United States Air Transport (Arbitration) (1965) 45 ILR 393 �� 57, 93, 112 James Hamilton Lewis (United States v Russia) (1902) 9 RIAA 66�� 145, 148–9 Kate & Anna (United States v Russia) (1902) 9 RIAA 76��145, 149

xiv

Table of Cases

Kuwait v American Independent Oil Co (AMINOIL) (1982) 66 ILR 518�� 4, 165 Lac Lanoux Arbitration (1957) 24 ILR 101 �� 42–6 Lawrence in A de Lapradelle and N Politis, Recueil des arbitrages internationaux I (Pedone, 1905), 740�� 145 Lederer v German State in (1928) III Recueil des décisions des tribunaux arbitraux mixtes 762 ��94 Lighthouses Arbitration (Claim No 26) (1956) 23 ILR 342�� 65 Mixed Claims Commission: Sambaggio case (Italy v Venezuela) (1903) 10 RIAA 499 �� 145 North Atlantic Fisheries (Great Britain v United States) (1910) 11 RIAA 167 ��65, 124–6 Ottoman Debt Arbitration in (1925–26) Annual Digest of Public International Law Cases Case No 270 ��94 Pelletier in Moore, History and Digest of International Arbitrations to which the United States has been a Party II (Government Printing Office, 1898), 1750�� 145 Pertosula Claim (1951) 18 ILR 414��71 Petroleum Development (Trucial Coast) Ltd and the Sheikh of Abu Dhabi (1952) 1 ICLQ 247 �� 99–100, 124–6 Polyxene Plessa v the Turkish Government in (1929) VIII Recueil des décisions des tribunaux arbitraux mixtes 224��93 Portendick (1843), in A de Lapradelle and N Politis, Recueil des arbitrages internationaux I (Pedone, 1905), 530�� 156 Re Italian Special Capital Levy Duties (1949) 18 ILR 406�� 65 Roberts (1926) 3 ILR 227 ��44 Sarropoulos in (1927–28) Annual Digest of Public International Law Cases Case No 291��93 Sentence arbitrale relative aux requêtes de la Grande-Bretagne et du Portugal (Baie de Delagoa ou Lorenzo Marques) (1875) 28 RIAA 157��156–7 SS Lisman: disposal of pecuniary claims arising out of the recent war (1914–1918) (United States v United Kingdom) (1937) 3 RIAA 1767 �� 145 Tax regime governing pensions paid to retired UNESCO officials residing in France (France v UNESCO) (2003) 25 RIAA 231�� 61, 93 The Channel Tunnel Group Ltd and France-Manche SA v United Kingdom and France (‘Eurotunnel’) 132 (2007) ILR 1��104 The Indo–Pakistan Western Boundary (Rann of Kutch) between India and Pakistan (1968) 50 ILR 2; (1968) 17 RIAA 1�� 4, 71, 73–4, 143 The Oriental Navigation Company (United States v United Mexican States) (1928) 4 RIAA 341 �� 145 The Pious Fund Case (United States v Mexico) (1902) 9 RIAA 1 �� 145 Veloz-Mariana in H La Fontaine, Pasicrisie internationale: histoire documentaire des arbitrages internationaux (Stämpfli, 1902), 26 �� 156 Volusia in A de Lapradelle and N Politis, Recueil des arbitrages internationaux I (Pedone, 1905), 741 �� 145 Young Loan Arbitration (1980) 59 ILR 494 �� 2, 5, 58, 83 I N V E S T M E N T DISPU T E T R I BU N A L S ADF Group v United States of America ICSID Case No ARB(AF)/00/1 (Award) 9 January 2003�� 45 Aguas del Tunari SA v Bolivia (Decision on Jurisdiction 21 October 2005) ��43, 93, 118 Amco Asia Corporation and others v Republic of Indonesia (Amco II), ICSID Case No ARB/81/1, Decision on the Applications by Indonesia and Amco Respectively for Annulment and Partial Annulment, 17 December 1992 ��117–18 Azpetrol International Holdings BV, Azpetrol Group BV, Azpetrol Oil services Group BV v the Republic of Azerbaijan, ICSID Case No ARB/06/15, 8 September 2009��104 Azurix Corpn v Argentine Republic ICSID Case No ARB/01/12 (Final Award) 14 July�� 45

Table of Cases

xv

Cargill Inc v Mexico (2009) 146 ILR 642 ��44 CMS Gas Transmission Co v Argentine Republic (Award) (2005) 44 ILM 1205�� 43, 45 Continental Casualty Co v Argentina (Decision on Jurisdiction 22 February 2006) ��43 Czech Republic v European Media Ventures [2007] EWHC 2851 (Comm)��43 Daimler Financial Services AG v Argentine Republic, ICSID Case No ARB/05/1, 22 August 2012��56–7 Ecuador v Occidental (No 2) [2007] 1 Lloyd’s Rep 352 ��43 Glamis Gold v United States, 8 June 2009��44 HICEE BV v The Slovak Republic (Permanent Court of Arbitration) Case No 2009–11, 23 May 2011 �� 113 Hussein Nuaman Soufraki v United Arab Emirates, ICSID Case No ARB/02/7, Decision of the ad hoc Committee on the Application for Annulment of Mr Soufraki, 5 June 2007�� 117 Industria Nacional de Alimentos SA and Indalsa Perú (formerly Lucchetti SA and Lucchetti Perú SA) v Peru (Annulment) Case No ARB/03/4�� 3, 15 Klöckner Industrie-Anlagen GmbH and others v United Republic of Cameroon and Société Camerounaise des Engrais (Klöckner I), ICSID Case No ARB/81/2, Decision of the ad hoc Committee, 3 May 1985 �� 117 Lauder v Czech Republic (Award 3 September 2001) [2001] 9 ICSID Rep 66��43 LG & E Energy Corpn and Others v Argentine Republic ICSID Case No ARB/02/1 (Decision on Liability) 3 October 2006 �� 43, 45 Maritime International Nominees Establishment v Republic of Guinea, ICSID Case No ARB/84/4, Decision on the Application by Guinea for Partial Annulment of the Arbitral Award dated 6 January 1988, 22 December 1989�� 117 Mondev v United States of America (Award 11 October 2002) (2002) 125 ILR 98; (2002) 6 ICSID Rep 192��43–5 MTD v Chile (Award 25 May 2004) (2005) 44 ILM 91��43 Noble Ventures v Romania (Award 12 October 2005)��43 Pope and Talbot v Canada (2001) 122 ILR 293�� 45 RosInvestCo UK Ltd v Russian Federation SCC Case No Arb V079/2005, Award on Jurisdiction ��131, 139 Salini Costruttori SpA & Italstrade SpA v Hashemite Kingdom of Jordan, ICSID Case No ARB/02/13, Award 31 January 2006�� 21 Saluka Investments BV (The Netherlands) v The Czech Republic (Partial Award) 17 March 2006��43 SGS Société Générale de Surveillance SA v Republic of the Philippines (2004) 8 ICSID Rep 515��42–3, 45 Siemens v Argentina (Decision on Jurisdiction 3 August 2004) (2005) 44 ILM��43 TECMED v Mexico (2003) 10 ICSID Rep 130�� 45 Waste Management v Mexico (30 April 2004) ICSID Case No ARB(AF)/00/3�� 45 I N T E R-A M E R IC A N C OU RT A N D C OM M IS SION OF H U M A N R IGH TS Aloeboetoe et al, judgment 10 September 1993, Series C, No 15.I/A ��4, 165–6 Bámaca Velásquez v Guatemala, Series C No 70, judgment 2 November 2000�� 11 Case of the ‘Street Children’ (Villagrán Morales et al), Series C No 63, judgment 19 November 1999�� 11 Case of the Gómez Paquiyauri Brothers, Series C No 110, judgment 8 July 8 2004�� 11 Effect of Reservations Opinion (1982) 67 ILR 559��30 Juridical Condition and Rights of the Undocumented Migrants, Series A No 18 Advisory Opinion OC–18/03, 17 September 2003�� 11 The Mayagna (Sumo) Awas Tingni Community v Nicaragua (2008) 136 ILR 73�� 11

xvi

Table of Cases

The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Series A No 16 Advisory Opinion OC–16/97, 14 November 1997�� 11 W TO BODI E S China— Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/AB/R, 21 December 2009��61, 83, 93, 126, 141, 192 EC and its Member States—Tariff Treatment of Certain Information Technology Products, WT/DS375, 376 and 377/R, 16 August 2010 �� 83, 192 EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R; WT/ DS48/AB/R ��42 EC—Computer Equipement, Report of the Appeallate Body WT/DS62/ AB/R; WT/DS67/AB/R; WT/DS68/AB/R �� 6, 60, 83, 93 US—Gambling, Report of the Appellate Body WT/DS363/AB/R��6, 61, 83, 93 US—Import Prohibition of Certain Shrimp and Shrimp Products, WB/DS58/AB/R, 12 October 1998 �� 83, 126 EU ROPE A N C OU RT A N D C OM M IS SION OF H U M A N R IGH TS A, B and C v Ireland App No 25579/05 judgment [GC] 16 December 2010��79 Airey v United Kingdom App No 6289/73, judgment 9 October 1979 �� 8, 12, 52, 129, 133, 139 Al-Adsani v United Kingdom App No 35763/97, judgment [GC] 21 November 2001��29 Al-Skeini v United Kingdom App No 55721/07��137 Austria v Italy (Pfunder’s Case) App No 788/60 11 January 1961 (1962) 4 Yearbook 116 (EcomHR)�� 172, 178–9 Bankovic v Belgium (2001) 123 ILR 94 ��29, 134–8 Blečič v Croatia App No 59532/00, judgment [GC] of 8 March 2006�� 172 Bolat v Russia App No 14139/03, judgment 5 October 2006 �� 53 Dudgeon v United Kingdom 22 October 1981, Series A No 45��136 Finucane v United Kingdom App No 29178/95; ECHR 2003-VIII�� 185 Frandeş v Romania App No 35802/05, judgment 17 May 2011 �� 186 Golder v United Kingdom (1975) 57 ILR 200��30, 85, 113 Demir and Baykara v Turkey App No 34503/97, judgment [GC] 12 November 2008�� 52, 85 Güleç v Turkey (1998) 28 EHRR 121 �� 185 Hirsi Jamaa v Italy App No 27765/09, judgment [GC] of 23 February 2012�� 172 Janowiec and Others v Russia App Nos 55508/07 and 29520/09, judgment [GC] of 21 October 2013 ��137, 186 Jovanovic v Croatia App No 59109/00; ECHR 2002-III �� 169 Kaya v Turkey (1998) 28 EHRR 1�� 185 Kholodov and Kholodova v Russia App No 30651/05, 14 September 2006 �� 170 Kikots and Kikota v Latvia App No 54715/00, 6 June 2002�� 170 Litovchenko v Russia App No 69580/01, 18 April 2002�� 170 Loizidou v Turkey (Preliminary Objections) (1995) 103 ILR 622 ��65, 134–6 Lupsa v Romania App No 10337/04, judgment 8 June 2006��54 Lyubov Efimenko v Ukraine App No 75726/01 25 November 2010��137, 186 Mamatkulov and Askarov v Turkey (2005) 134 ILR 230��30–1 Mangouras v Spain App No 12050/04, judgment [GC] 28 September 2010��78–9 Matthews v United Kingdom App No 24833/94 ECHR 1999 I��136 McCann v United Kingdom (1996) 21 EHRR 97��184–5

Table of Cases

xvii

Moldova v Romania App Nos 41138/98 and 64320/01 13 March 2001�� 169, 174, 184 Nada v Switzerland App No 10593/08, judgment [GC] 12 September 2012��8 PM v Bulgaria App No 49669/07, judgment 24 January 2012��137, 186 Šilih v Slovenia App No 71463/01, judgment [GC] of 9 April 2009 �� 137–8, 168–74, 181–7, 192 Stanimirović v Serbia App No 26088/06 18 October 2011 ��137, 186 Tuna v Turkey App No 22339/03, judgment 19 January 2010��137, 186 Tyrer v United Kingdom (1978) 58 ILR 339�� 11–12, 32, 79, 129, 133, 139, 172 V v United Kingdom App No 24888/94 ECHR 1999 IX��136 Varnava and Others v Turkey App Nos 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, and 16073/90, judgment 18 September 2009�� 185 Veeber v Estonia (No 1) App No 37571/97, 7 November 2002�� 170 Voroshilov v Russia App No 21501/02, 8 December 2005�� 170 X v The Netherlands 1102/61 of 18 December 1961 �� 171 X, Y, and Z v United Kingdom 22 April 1997 Rep 1997 II��136 Y v The Netherlands 1210/61 of 14 December 1962 �� 171 Yatsenko v Ukraine App No 75345/01, judgment 16 February 2012��137, 186 A F R IC A N C OM M IS SION ON H U M A N A N D PE OPL E S’ R IGH TS Centre for Minority Rights Development (Kenya) and Minority Rights Group International on Behalf of Endorois Welfare Council v Kenya, Communication 276/2003, 4 February 2010�� 11 World Organization against Torture and International Association of Democratic Lawyers, International Commission of Jurists, Interafrican Union for Human Rights v Rwanda, Nos 27/89, 46/91, 49/91, 99/93�� 53 U N H U M A N R IGH TS C OM M I T T E E Hagan v Australia No 26/2002, Communication 20 March 2003, UN Doc CERD/ C/62/D/26/2002�� 11 Judge v Canada No 829/1998, Communication 5 August 2002, UN Doc CCPR/ C/78/D/829/1998�� 11 Kenneth Good v Republic of Botswana, No 313/05�� 53 Maroufidou v Sweden No 58/1979�� 53 I N T E R N AT ION A L C R I M I N A L T R I BU N A L FOR T H E FOR M E R Y UG OSL AV I A Prosecutor v Tadic (1995) 105 ILR 419 (Jurisdiction) ��28–9 C OU RT OF J US T IC E OF T H E EU ROPE A N U N ION C–26/62 Van Gend and Loos v Nederlanse Administatie der Belastingen [1963] ECR 1��38–9 C–6/64 Flaminio Costa v ENEL [1964] ECR 585��38 C–22/70 Commission of the European Communities v Council of the European Communities [1971] ECR 263��38 C–283/81 CILFIT v Ministry of Health [1982] ECR 3415��39 C–152/84 Marshall v Southampton and South-West Hampshire Area Health Authority [1986] ECR 723��39 C–59/85 Netherlands v Reed [1986] ECR 1283��39

xviii

Table of Cases

C–91/92 Faccini Dori v Recreb [1994] ECR I–3325��39 C–192/94 El Corte Inglés v Blázquez Rivero [1996] ECR I–1281��39 C–416/96 El-Yassini v Secretary of State [1999] ECR I–01209��39 C–386/08 Brita GmbH v Hauptzollamt Hamburg Hafen, judgment of 25 February 2010��39 Jany v Staatssecretaris van Justitie [2001] ECR I–8615��39 Metalsa [1993] ECR I–3751��39 Opinion 1/91 [1991] ECR I–6079��38–9 WOR L D B A N K A DM I N IS T R AT I V E T R I BU N A L Cissé v International Bank for Reconstruction and Development (2001) 133 ILR 117�� 112 I N T E R N AT ION A L T R I BU N A L FOR T H E L AW OF T H E SE A The Hoshinmaru (Japan v Russia Federation) (2007) 143 ILR 1�� 112 The Volga (Russian Federation v Australia) (2002) 126 ILR 433�� 112 SU PR E M E C OU RT OF T H E U N I T E D S TATS OF A M E R IC A The Antelope 10 Wheat 66 JB Scott, Cases on International Law (Boston Book Co, 1902) ��46 F R E NC H C OU RTS Cour de cassation (1re chambre civile) 20 October 1982�� 105 Cour de cassation, Civ, 30 January 1996, no 93–20330 �� 101 Cour de cassation, Com, 20 October 1998, no 96–10259 �� 101 Cour de cassation, Com, 14 October 2008, no 07–18955 �� 101 U K C OU RTS A N D T H E PR I V Y C OU NC I L Al-Skeini and Others v Secretary of State for Defence [2007] UKHL 26; [2008] 1 AC 153 ��136 Arbuthnott v Fagan [1995] CLC 1396�� 103 Bank of Credit and Commerce International Sa (In Liquidation) v Ali (No 1) [2001]UKHL 8; [2002] 1 AC 251 �� 102 Birmingham City Council v Oakley [2000] UKHL 59; [2000] 3 WLR 1936��108 Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38; [2009] 1 AC 1101��102–3 Co-operative Wholesale Society Ltd v National Westminster Bank plc [1995] 1 EGLR 97�� 103 Edwards v Attorney-General of Canada [1930] AC 124 �� 106–8 Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27��108 Gan Insurance Co Ltd v Tai Ping Insurance Co [2001] EWCA Civ 1047; [2001] 2 All ER (Comm) 299�� 103 Glynn v Margetson & Co [1893] AC 351 �� 103 Goodes v East Sussex County Council [2000] UKHL 34; [2000] 1 WLR 1356��108 Grant v Southwestern and County Properties Ltd [1975] Ch 185��108 Herron v Rathmines and Rathgar Improvement Commissioners [1892] AC 498 �� 107 Homburg Houtimport BV v Agrosin Private Ltd: The Starsin [2004] 1 AC 715�� 103 In re McKerr [2004] UKHL 12; [2004] 1 WLR 807 �� 181–3 Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896�� 102–3 Jordan v Lord Chancellor [2007] UKHL 14; [2007] 2 AC 226 �� 181

Table of Cases

xix

L Schuler AG v Wickman Machine Tools Sales Ltd [1974] AC 235 �� 104 McCarten Turkington Breen (A Firm) v Times Newspapers Ltd [2001] 2 AC 277�� 108 McCaughey and Another [2011] UKSC 20; [2012] 1 AC ��169, 180–3, 186 Nairn v University of St Andrews [1909] 1 AC 1�� 106 Pink Floyd Music Ltd v EMI Records Ltd [2010] EWCA Civ 1429, [2011] 1 WLR 770�� 102–3 Prenn v Simmonds [1971] 1 WLR 1381 �� 104 R v Bristol City Council, ex p Everett [1999] EWCA Civ 869, [1999] 1 WLR 1170�� 108 R v Coroner for North Humberside and Scunthorpe, ex p Jamieson [1995] QB 1; [1994] 3 WLR 82 �� 182 R v Ireland [1998] AC 147 �� 108 R v R (Rape: Marital Exemption) [1992] 1 AC 599 �� 108 R v Secretary of State for Health, ex p Quintavalle (on behalf of Pro-Life Alliance) [2003] 2 AC 687�� 108–9 R v SK [2011] 2 Cr App R 34�� 108 R (Hurst) v London Northern District Coroner [2007] UKHL 13; [2007] 2 AC 189 �� 181 Rainy Sky SA and others v Kookmin Bank [2011] UKSC 50; [2011] 1 WLR 2900 �� 103–4 Royal College of Nursing of the United Kingdom v Department for Health and Social Security [1981] AC 800�� 108 Society of Lloyd’s v Robinson [1999] 1 All ER (Comm) 545�� 103 Yemshaw (Appellant) v London Borough of Hounslow (Respondent) [2011] UKSC 3; [2011] 1 WLR 433 �� 108–9 G E R M A N C OU RTS BVerfGE 2, 280 �� 105 BVerfGE 3, 407 �� 105 DU TC H C OU RTS The Netherlands (PTT) and the Post Office (London) v Nedlloyd (1977) 74 ILR 212�� 106 N E W Z E A L A N D C OU RTS New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641�� 106

Table of Legislation I N T E R N AT ION A L /BI L AT E R A L General Agreement on Trade in Services, 15 April 1994, 1869 UNTS 183; (1994) 33 ILM 1167�� 126 Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, 1867 UNTS 187; (1994) 33 ILM 1153�� 126 Montreal Protocol on Substances that Deplete the Ozone Layer, 16 September 1987, 1522 UNTS 2��19 Vienna Convention for the Protection of the Ozone Layer, 22 March 1985, 1513 UNTS 324 �� 19 Convention against Torture and Other Cruel, Inhuman or Degrading Treament or Punishment, 10 December 1984, 1465 UNTS 85��116 Art 7 ��116 African Charter on Human and Peoples’ Rights, 17 June 1981, 1520 UNTS 217�� 52, 53 Treaty Concerning the Construction and Operation of the Gabcíkovo–Nagymaros System of Locks, 16 September 1977, 1978 UNTS 236�� 119 Art 15�� 19 Art 19�� 19 Art 20 �� 19 Statute of the River Uruguay, 26 February 1975, 1295 UNTS 340�� 49 Agreement between Canada and France on their Mutual Fishing Relations, 27 March 1972, CTS 1979 No 37�� 125 American Convention on Human Rights, 22 November 1969, OAS Treaty Series 36��6, 11, 49, 53 Art 22(6)�� 53 Vienna Convention on the Law of Treaties 23 May 1969, 1155 UNTS 331; (1969) 8 ILM �� 679

Art 2 �� 56 Art 5 ��30, 31 Art 11�� 56 Art 12 �� 56 Art 13 �� 56 Art 14�� 56 Art 15�� 56 Art 17�� 56 Art 18�� 56 Art 20 �� 56 Art 23 �� 56 Art 24 �� 56 Art 26 �� 66, 115 Art 31��3, 5, 10, 13, 20, 25, 30, 31, 38, 58, 61, 82, 92, 98, 135, 188 Art 32 �� 3, 5, 10, 13, 20, 30, 31, 58, 76, 82, 92, 98, 113, 122, 135, 188 Art 33 �� 3, 5, 10, 13, 20, 30, 31, 58, 76, 82, 92, 98, 135, 188 Art 46 �� 56 Art 48 �� 56 Art 49 �� 56 Art 50 �� 56 Art 51�� 56 Art 62 �� 27 Art 65�� 56 Art 69 �� 56 International Covenant on Civil and Policial Rights, 16 December 1966, 999 UNTS 171 �� 11, 138 Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 18 March 1965, 575 UNTS 159 ��117 Art 52�� 117 International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, 660 UNTS 195�� 11, 138 Art 2 �� 138 Art 5 �� 138

Table of Legislation Vienna Convention on Consular Relations, 22 April 1963, 596 UNTS 261��50 (European) Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 222�� 8–9, 11–12, 29–31, 52, 62, 85, 129, 132–4 Art 1 �� 29, 136, 138 Art 1 Prot 7�� 53 Art 2 �� 169, 182 Art 5 �� 78 Art 46 �� 135 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277��34, 115, 176–7 Art IX �� 177 International Convention for the Regulation of Whaling, 2 December 1946, 161 UNTS 72�� 19, 81, 120 Charter of the United Nations, 26 June 1945, 892 UNTS 119 �� 6, 129, 130–2, 146–7, 190 Statute of the International Court of Justice, 26 June 1945, 892 UNTS 119 �� 14, 85, 116, 175–6 Art 3 �� 21 Art 36 �� 175, 179 Art 38 �� 14, 85 Art 41�� 116 Art 59 �� 117 International Agreement for the Regulation of Whaling, 8 June 1937, 190 LNTS 79�� 81 Convention for the Regulation of Whaling, 24 September 1931, 155 LNTS 349 �� 81 Covenant of the League of Nations, 28 June 1919, 225 CTS 195�� 129–30 Art 22 �� 130 Convention of St Germain-en-Laye, 10 September 1919, 226 CTS 186�� 150, 155 Treaty between the Principal Allied and Associated Powers and Poland, 28 June 1919, 225 CTS 412 �� 7, 73 Treaty of Versailles, 28 June 1919, 225 CTS 189 �� 34

xxi

Treaty of Paris, 10 December 1898, 187 CTS 100; 11 Bevans 615�� 145 Anglo–German Treaty, 1 July 1890, 173 CTS 271�� 157–8 Art III �� 157–8 Declaration of the General Act of the Brussels Conference 2 July 1890, 173 CTS 188 �� 25, 118, 166 Convention on the Protection of Submarine Cables 14 March 1884, TS 380 �� 106 Treaty of Limits, 15 April 1858, 118 CTS 439�� 1, 21 Treaty of Waitangi, 6 February 1840, 89 CTS 873 �� 106 Treaty between the Kingdom of the Netherlands and Belgium relative to the Separation of their Respective Territories, 19 April 1839, 88 CTS 427�� 159 Art XII�� 159 Treaty of London 20 October 1818, TS 112; 12 Bevans 57�� 124 Saramaka Peace Treaty, 19 September 1762, JJ Hartsinck, Beschryving van Guianan (Tielenburg, 1770), 802–9 ��165–6 Norway–Sweden Boundary Treaty, 26 October 1661, 5 CTS 495�� 147–8 Danish–Swedish Peace Treaty of Roskilde, 1658 26 February (OS) or 8 March (NS) 1658, 5 CTS 1 �� 147–8 I NS T RU M E N TS OF R AT I F IC AT ION Instrument of ratification by the United Kingdom of Great Britain and Northern Ireland of the Convention for the Protection of Human Rights and Fundamental Freedoms, deposited with the Secretary General of the Council of Europe on 8 March 1951�� 171, 178 Instrument of ratification by Slovenia of the Convention for the Protection of Human Rights and Fundamental Freedoms, deposited with the Secretary General of

xxii

Table of Legislation the Council of Europe on 28 June 1994�� 170

I TA LY Italian Civil Code �� 102 Art 1247�� 102

N AT ION A L France Code Civil �� 100 Art 1156�� 100–1 Art 1157 �� 101 GER M AN Y German Civil Code �� 101–2 Art 133�� 101–2

U N I T E D K I NGD OM British North America Act 1867�� 106–7 s 24�� 106 Human Fertilisation and Embryology Act 1990 �� 108–9 s 1 �� 108 Human Rights Act 1998�� 181

List of Abbreviations AB AC ADS AFDI AJIL All ER Ann de l’Inst Arb Int Arch de phil de droit ARIEL ARSIWA ASIL ASIL Bull AYIL Bevans Brooklyn JIL BVerfGE BYIL CETS Cr App R CTS CLP Curso Denning LJ DDP ECHR ECR ECtHR EEA EGLR EHRLR EJIL EWCA FILJ FYIL GATS GC GST

Appellate Body (of the World Trade Organization) Appeals Cases Arès Défence et Sécurité Annuaire français de droit international American Journal of International Law All England Law Reports Annuaire de l’Institut de droit international Arbitration International Archives de philosopie du droit Austrian Review of International and European Law Articles on the Responsibility of States for Internationally Wrongful Acts American Society of International Law ASIL Bulletin Australian Yearbook of International Law Treaties and Other International Agreements of the United States of America 1776–1949 Brooklyn Journal of International Law Entscheidungen des Bundesverfassungsgerichts (Decisions of the German Federal Constitutional Court) British Yearbook of International Law Council of Europe Treaty Series Criminal Appeals Reports Consolidated Treaty Series (Oxford University Press, 1969) Current Legal Problems Curso de Derecho Internacional Organizado por el Comité Jurídico Interamericano Denning Law Journal Digesto delle discipline pubblicistiche European Convention for the Protection of Human Rights and Fundamental Freedoms European Court Reports European Court of Human Rights European Economic Area Estates Gazette Law Reports European Human Rights Law Review European Journal of International Law England and Wales Court of Appeal Fordham International Law Journal Finnish Yearbook of International Law General Agreement on Trade in Services Grand Chamber (of the European Court of Human Rights) Transactions of the Grotius Society

xxiv GYIL Hague Recueil Hastings LJ HRA HRLJ IACTHR ICCPR ICERD

List of Abbreviations

German Yearbook of International Law Recueil des cours de l’Academie de droit international Hastings Law Journal Human Rights Act 1998 Human Rights Law Journal Inter-American Court of Human Rights International Covenant on Civil and Political Rights International Convention on the Elimination of All Forms of Racial Discrimination ICJ Rep Reports of Judgments, Advisory Opinions and Orders of the International Court of Justice ICLQ International and Comparative Law Quarterly ICLR International Community Law Review ICSID Convention on the Settlement of Investment Disputes between States and Nationals of Other States ILC International Law Commission ILC Ybk Yearbook of the International Law Commission ILM International Legal Materials ILR International Law Reports (continuation of the Annual Digest) JIDS Journal of International Dispute Settlement JSPTL Journal of the Society of Public Teachers of Law LC Lord Chancellor LJIL Leiden Journal of International Law Lloyd’s Rep Lloyd’s List Law Reports LNTS League of Nations Treaty Series LQR Law Quarterly Review Max Planck Jahrbuch Jahrbuch der Max-Planck-Gesellschaft zur Förderung der Wissenschaften Michigan LR Michigan Law Review MLR Modern Law Review MR Master of the Rolls NAFTA North American Free Trade Agreement NATO North Atlantic Treaty Organization NJIL Nordic Journal of International Law NYIL Netherlands Yearbook of International Law NZLR New Zealand Law Reports PCA Permanent Court of Arbitration PCIJ Publications of the Permanent Court of International Justice RBDI Revue belge de droit international RdP Revue du droit public RGDIP Revue générale du droit international RIAA United Nations, Report of International Arbitral Awards RTDC Revue trimestrielle de droit civil S Der Staat SLR Statute Law Review Stat US Statutes at Large (US Department of State) TS Treaty Series (US Department of State) U Cinc LR University of Cincinatti Law Review U Ill LR University of Illinois Law Review

List of Abbreviations UKHL UKSC UN Charter UNIDROIT UNTS Va JIL Vand JTL VCLT Wheat WHO WLR WTO Yale JIL Yale LJ ZaöRV ZöR

United Kingdom House of Lords United Kingdom Supreme Court Charter of the United Nations International Institute for the Unification of Private Law United Nations Treaty Series Virginia Journal of International Law Vanderbilt Journal of Transnational Law Vienna Convention on the Law of Treaties Henry Wheaton, Reports of Cases Argued and Adjudged in the Supreme Court of the United States 1816–1827 World Health Organization Weekly Law Reports World Trade Organization Yale Journal of International Law Yale Law Journal Zeitschrift für ausländisches öffentliches Recht und Völkerrecht Zeitschrift für öffentliches Recht

xxv

1 Introduction 1.1 Research Question and Argument What is the place of the evolutionary interpretation of treaties within the rules of treaty interpretation codified in the Vienna Convention on the Law of Treaties (VCLT)?1 That is the question to which this book seeks to provide an answer. The point of departure in this regard is the working definition of ‘evolutionary interpretation’ proffered by the International Court of Justice in Navigational Rights.2 The question there was whether the phrase ‘for the purposes of commerce’ in a Nicaraguan–Costa Rican treaty of limits of 18583 covered tourism, ie the carriage of passengers for hire. The Court held that the phrase must be interpreted so as to cover all modern forms of commerce, including tourism. Where the parties have used generic terms in a treaty, the parties necessarily having been aware that the meaning of the terms was likely to evolve over time, and where the treaty has been entered into for a very long period, the Court said, the parties must be presumed, as a general rule, to have intended those terms to have an evolving meaning.4 Thus the words ‘evolutionary interpretation’, the Court explained, refer to: situations in which the parties’ intent upon conclusion of the treaty was, or may be presumed to have been, to give the terms used—or some of them—a meaning or content 1 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331; (1969) 8 ILM 679. Article 31, entitled ‘General rule of interpretation’ provides: ‘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 in 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 or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement 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.’ Space precludes the citation of the full text of Arts 32–33. 2 Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) Judgment ICJ Rep 2009 p 213. See also: J Crawford, Brownlie’s Principles of Public International Law (8th edn, Oxford University Press, 2012), 379–80; R Gardiner, Treaty Interpretation (paperback edn, Oxford University Press, 2011), xviii–xx; M Dawidowicz, ‘The Effect of the Passage of Time on the Interpretation of Treaties: Some Reflections on Costa Rica v Nicaragua’ (2011) 24 LJIL 201. 3 Treaty of Limits, 15 April 1858, 118 CTS 439 (in the Spanish original: ‘con objetos de comercio’). 4 Dispute regarding Navigational and Related Rights (n 2), 343 at [66].

2

Introduction

capable of evolving, not one fixed once and for all, so as to make allowance for, among other things, developments in international law.5

As will be seen from the Court’s judicious choice of words, the concept of intent— surprisingly, it might be thought—has a role to play in the evolutionary interpretation of treaties. Indeed, treaties are, as the International Law Commission (ILC) has explained, ‘embodiments of the common will of their parties’.6 It follows logically, therefore, that ‘interpretation must seek to identify the intention of the parties’.7 International courts and tribunals have, in keeping with this approach, made clear just how important the concept of the intention of the parties is in treaty interpretation.8 The thesis of this book is that the evolutionary interpretation of treaties can be explained by a proper understanding of the intention of the parties, the intention of the parties being the most important thread running through the law of treaties. As such, the evolutionary interpretation of treaties is not a separate method of interpretation; it is rather the result of a proper application of the usual means of interpretation, as means by which to establish the intention of the parties.9 It is in this regard important to make clear at the outset what is meant by the phrase ‘the intention of the parties’. As will become clear in Chapter 3, the term is used here in the objectivized sense relied on by the ILC. Thus the concept of the intention of the parties ‘refers to the intention of the parties as determined through the application of the various means of interpretation’;10 it ‘is thus not a separately identifiable original will, and the travaux préparatoires are not the primary basis for determining the presumed intention of the parties’.11 The ‘intention of the parties’ is a construct to be derived from the articulation of the ‘means of interpretation admissible’12 in the process of interpretation. This objectivized, or objective,13 nature of ‘the intention of Dispute regarding Navigational and Related Rights (n 2), 242 at [64]. ILC Draft Conclusions on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties 2013, ILC Report 2013 UN Doc A/68/10, 23. 7 ILC Draft Conclusions on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties 2013 (n 6), 18. 8 See Argentina/Chile Frontier Case (Palena) (1966) 16 RIAA 109, 174; (1966) 38 ILR 10, 89; Dispute concerning Filleting within the Gulf of St. Lawrence (‘La Bretagne’) (Canada/France) (1986) 82 ILR 591, 659 at [67]; Young Loan Arbitration (1980) 59 ILR 494, 530 at [19]; Decision regarding delimitation of the border between Eritrea and Ethiopia (2002) 25 RIAA 83, 110; (2002) 130 ILR 1, 34 at [3.4]; Case Concerning the Auditing of Accounts between the Kingdom of the Netherlands and the French Republic Pursuant to the Additional Protocol of 25 September 1991 to the Convention on the Protection of the Rhine against Pollution by Chlorides of 3 December 1976 (Netherlands/France) (2004) 25 RIAA 267; (2004) 144 ILR 259, 293 at [62]; Award in the Arbitration regarding the Iron Rhine (‘Ijzeren Rijn’) (Belgium v Netherlands) (2005) 27 RIAA 35, 65 at [53]. Ch 3 below. 9 G Nolte, ‘Report 1 for the ILC Study Group on Treaties over Time’ in G Nolte (ed), Treaties and Subsequent Practice (Oxford University Press, 2013), 169, 188. 10 Draft Report of the International Law Commission on the Work of Its Sixty-Fifth Session A/ CN.4/L.819/Add.1, 17–18. 11 Draft Report of the International Law Commission on the Work of Its Sixty-Fifth Session (n 10), 18. 12 1966 ILC Ybk II 218–19. 13 RE Fife, ‘Les techniques interprétatives non juridictionnelles de la norme internationale’ (2011) 115 RGDIP 367, 372; M Fitzmaurice, ‘Interpretation of Human Rights Treaties’ in D Shelton (ed), Handbook in International Human Rights Law (Oxford University Press, 2014), 745. 5 6

Research Question and Argument

3

the parties’ is clear from the fact that the ILC set out by its own admission to codify, in the general rule of interpretation, ‘the means of interpretation admissible for ascertaining the intention of the parties’.14 Another way of putting the matter is to see the means of interpretation listed in Articles 31–33 as ‘indicators of the intention of the Treaty Parties [which] may be admissible in defined circumstances for defined purposes’.15 This objective or objectivized nature of the concept of ‘the intentions of the parties’ is clear also from what the International Court said in Navigational Rights, where the Court stated that the aim of treaty interpretation is to establish ‘the intentions of the parties as reflected by the text of the treaty and the other relevant factors in terms of interpretation’.16 It is difficult to answer the question ‘what is the place of evolutionary interpretation within the rules of interpretation as codified in Articles 31–33?’ without also looking into subjects other than treaty interpretation strictly defined, subjects with which evolutionary interpretation shares an extensive frontier. ‘To define a territory is’, after all, ‘to define its frontiers’.17 On this background, the research question posed above leads to two further questions, connected with it but larger in scope. The first one of these further research questions is whether there are numerous methods of interpretation in the law of treaties or in fact only one. Though it is impossible fully to provide an answer to this question within the confines of this study,18 it is necessary in order to answer the main research question also to provide an analysis of this problematic. This is closely connected with the issue of what the ILC has called ‘the unity of the interpretation process’,19 the idea being that some of these tools of interpretation are by definition more pertinent for particular types of treaty than others. It is necessary, therefore, to enter into one sub-set of the (now largely exhausted)20 debate about the fragmentation of international law,

1966 ILC Ybk II 218–19. Dissenting Opinion, Judge Sir Franklin Berman, Industria Nacional de Alimentos SA and Indalsa Perú (formerly Lucchetti SA and Lucchetti Perú SA) v Peru (Annulment) Case No ARB/03/4 at [8]‌. 16 Dispute regarding Navigational and Related Rights (n 2), 213, 237 at [48] (‘conformément aux intentions de ses auteurs telles qu’elles sont révélées par le texte du traité et les autres éléments pertinents en matière d’interprétation’). Also Gardiner, Treaty Interpretation (n 2), xvii–xviii. 17 Territorial Dispute (Libya/Chad) (Judgment) [1994] ICJ Rep 21, 26 (inverted commas removed). 18 See M Waibel, ‘Uniformity versus Specialisation: A Uniform Regime of Treaty Interpretation?’ in C Tams, A Tzanakopoulos, and A Zimmermann (eds), Research Handbook on the Law of Treaties (Edgar Elgar, 2014); J Crawford, International Law as an Open System: Selected Essays (Cameron May, 2002), 28–37. 19 ILC Draft Conclusions on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties 2013 (n 6), 19. 20 See M Koskenniemi, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’ Report of the Study Group of the International Law Commission, finalized by Martti Koskenniemi A/CN.4/L.682 at [159]–[171]. Also: P Webb, International Judicial Integration and Fragmentation (Oxford University Press, 2013); J Crawford, ‘Chance, Order, Change: The Course of International Law’ (2013) 365 Hague Recueil 1, 205– 29; M Andenas and E Bjorge (eds), A Farewell to Fragmentation: Reassertion and Convergence in International Law (Cambridge University Press, 2015); MA Young (ed), Regime Interaction in International Law: Facing Fragmentation (Cambridge University Press, 2012). 14 15

4

Introduction

more specifically whether different types of treaty ought to be interpreted according to different methods. The second further research question bears upon the complexity thrown up in treaty interpretation by the passage of time. If treaties are embodiments of the common intention of their parties, they are also ‘time-bound promises or propositions that generally reflect a perspective at the time of being made’.21 Notwithstanding General de Gaulle’s quip that ‘treaties are like roses and young girls; they last while they last’,22 the fact that the time-bound promises to which treaties give expression are meant in most cases to endure in many cases will give rise to the problem of the passage of time. This could be summed up as whether there is in general international law a background rule that demands that, in the interpretation of rules, account should be taken of ‘the evolution of law’.23 This bears on the question of intertemporality (that is, the principles which determine whether a provision is to be interpreted as at the time of the conclusion or of the application of the convention in which the provision is contained)24 and jus cogens superveniens (that is, the appearance of new jus cogens rules through the evolution of peremptory rules of international law),25 and will in the context of this book necessitate an analysis of the impact of changes in international law, both ordinary and peremptory rules, on treaty interpretation. The analysis begins, in Chapter 2, with the general question of whether there exist in the law of treaties specific rules of interpretation for different types of treaty, and then moves on to the more specific question of what is the evolutionary interpretation of treaties. Before it is possible to answer the main question, however, there are other aspects whose relation to evolutionary interpretation need to be analysed. Thus the interplay between evolutionary interpretation and treaty interpretation on the basis of good faith and the intention of the parties is analysed in Chapter 3. This will situate the main question of evolutionary interpretation in that Crawford, Chance, Order, Change (n 20), 110. Time, 12 July 1963. Also: Crawford, Brownlie’s Principles of Public International Law (n 2), 377. 23 Island of Palmas (Netherlands v United States of America) (1928) 2 RIAA 829, 845. 24 See eg Affaire de la Compagnie agricole du détroit de Puget (1869) 2 Recueil des arbitrages internationaux 513–17; Award of the Alaska Boundary Tribunal (1903) 15 RIAA 490, 491–3; The Indo– Pakistan Western Boundary (Rann of Kutch) between India and Pakistan (1968) 50 ILR 2; (1968) 17 RIAA 1, 481–5; Eritrea v Yemen (Phase One: Territorial Sovereignty and Scope of the Dispute) (1998) 114 ILR 1, 46, 115; Decision regarding delimitation of the border between Eritrea and Ethiopia (2002) 25 RIAA 83, 110; (2002) 130 ILR 1, 34 at [3.4]; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening) (Judgment) [2002] ICJ Rep 303, 404–7; Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/ Singapore) [2008] ICJ Rep 12, 50–1. 25 Case Concerning the Delimitation of Maritime Boundary between Guinea-Bissau and Senegal (1989) 20 RIAA 119; Kuwait v American Independent Oil Co (AMINOIL) (1982) 66 ILR 518, 588–9; Aloeboetoe et al, judgment 10 September 1993, Series C, No 15.I/A at [56]–[57]. Also: H Lammasch, Die Lehre von der Schiedsgerichtsbarkeit (Kohlhammer, 1913), 179; A Orakhelashvili, Peremptory Norms in International Law (Oxford University Press, 2006), 154; A Lagerwall, ‘Article 64: Emergence of a New Peremptory Norm of General International Law (“jus cogens”)’ in O Corten and P Klein (eds), The Vienna Convention on the Law of Treaties: A Commentary (Oxford University Press, 2011), 1457; J Crawford, State Responsibility: The General Part (Cambridge University Press, 2013), 315–18. 21

22

Research Question and Argument

5

which, on the approach taken in this book, is its right normative environment. It should be added that the judgments by international courts and tribunals on which the analysis in Chapters 2–3 is based does not make any claims to being completely exhaustive. Nonetheless, the hope is that the selection of judgments is representative, which it is believed is the case. The time element, both the intertemporal law and jus cogens superveniens, is the focus of Chapter 4. An example of what has been seen as evolutionary interpretation but which ought, it is argued here, not to be understood in this way is analysed in Chapter 5. The example is taken from the jurisprudence of the European Court of Human Rights and relates to the issue of jurisdiction ratione temporis (that is, jurisdiction by reference to time). This particular jurisprudence is analysed in order to bring out that at times it may be unhelpful, in fact quite confusing, to analyse a judicial development as evolutionary interpretation. It is not the main object of this study to prove the veracity of Lowe’s proposition that ‘treaty interpretation is an area in which the returns on abstract theorizing are low, and diminishing’.26 Nonetheless, Chapter 5 goes some way in showing that the interest in interpretive technique may certainly be taken too far, to the extent that one obscures, in fact confuses, the material questions in issue. Chapter 6 concludes the analysis. The main thesis of this book can be summarized in the following way: there is nothing special about the evolutionary interpretation of treaties as compared with other types of interpretation. Like all other types of interpretation it must be, and is in fact, a function of the intention of the parties as determined objectively through the application of the means of interpretation recognized by Articles 31–33.27 Although it is argued here that it has broad support in Articles 31–33, and the way international courts and tribunals practice treaty interpretation, the proposition that evolutionary interpretation follows from the intention of the parties does have its detractors.28 Crawford has observed that the issue of evolutionary interpretation ‘is essentially one of the correct application of VCLT Article 31’.29 As will become clear, it is argued in this book that, on the correct understanding of the law of treaties, this is entirely pertinent. It will be argued here that evolutionary interpretation must be understood by departing from the insights, first, that evolutionary interpretation builds upon the intention of the parties,30 and, secondly, that all the elements referred to in Article 31 provide, by objective means, the basis for establishing the common intention of the parties.31 AV Lowe, International Law (Oxford University Press, 2007), 74. See ILC Draft Conclusions on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties 2013, ILC Report 2013 (n 6), 27 at [9]‌. 28 29 See Ch 3 below. Crawford, State Responsibility: The General Part (n 25), 247. 30 See Young Loan Arbitration (1980) 59 ILR 494, 531 at [18]–[19]; Dispute concerning Filleting within the Gulf of St Lawrence (‘La Bretagne’) (Canada/France) (1986) 82 ILR 591, 624, 659–60; Award in the Arbitration regarding the Iron Rhine (‘Ijzeren Rijn’) (Belgium v Netherlands) (2005) 27 RIAA 35, 65, 73; Dispute regarding Navigational and Related Rights (n 2), 237 at [48]. 31 See Case Concerning the Auditing of Accounts between the Kingdom of the Netherlands and the French Republic Pursuant to the Additional Protocol of 25 September 1991 to the Convention on the Protection of the Rhine against Pollution by Chlorides of 3 December 1976 (Netherlands/France) (Rhine Chlorides 26 27

6

Introduction

This main thesis builds on a set of propositions. There is in the law of treaties one method of interpretation; it varies not as a function of which type of Tribunal is interpreting the treaty, nor of the content of different types of treaty. It is a misunderstanding, therefore, to say that the method of treaty interpretation relied on, for example, by the Inter-American or the European Court of Human Rights is different in nature from that of the International Court of Justice, the tribunals composed under the aegis of the Permanent Court of Arbitration, or other traditional interpreters of general international law. This concerns the aspect of the main thesis that addresses the interpreter; the other aspect concerns that which is being interpreted. In this regard, too, it is argued that the method of construction relied upon—whether the instrument to be interpreted is a boundary treaty, a human rights treaty, a trade treaty, or the UN Charter—is the same. It is, moreover, not just that the starting coordinates are the same, and that, as could be argued, different regimes then take on particular hues according to their subject matter; the method is the same all the way. Turning to the background rules of the intertemporal law and jus cogens superveniens is in line with the primacy in treaty interpretation of the intention of the parties. This is, as will be seen in Chapter 3.3, because treaty interpretation, while it is ‘a single combined operation’,32 could be described as a process of progressive encirclement, where the interpreter goes about establishing the intention of the parties in the treaty text, in the disputed terms, in the whole of the treaty, in general international law, and in the general principles of law. In many cases it is by this concentric encirclement that the judge is able to establish the presumed intention of the parties, in conformity with the fundamental demands of the fullness of international law and justice.33 As the ILC has stated, ‘the general rules of international law’ are among ‘the primary criteria for interpreting a treaty’.34 It is in line with the general approach taken in this book, therefore, to turn also to the intertemporal law and jus cogens superveniens.

1.2 Impermissibility of Courts Reconstructing Treaty Obligations Treaty interpretation, as this book argues with respect to evolutionary interpretation, is subject to important limits set by the rules of interpretation. The operation

Arbitration) (2004) 25 RIAA 267; (2004) 144 ILR 259, 293 at [62]; Decision regarding delimitation of the border between Eritrea and Ethiopia (2002) 25 RIAA 83, 110; (2002) 130 ILR 1, 34 at [3.4]; EC— Computer Equipment, Report of the Appellate Body WT/DS62/AB/R; WT/DS67/AB/R; WT/DS68/ AB/R at [84]; US—Gambling, Report of the Appellate Body WT/DS363/AB/R at [84]. 32 ILC Draft Conclusions on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties 2013 (n 6), 11; ILC Ybk 1966/II, 219–20. 33 M Huber (1952) 45 Ann de l'Inst 200–1; Gardiner, Treaty Interpretation (n 2), 141–2. 34 ILC Ybk 1964/II, 203–4 at [13], 204–5 at [15]. Also: ILC Draft Conclusions on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties 2013 (n 6), 27 at [9]‌.

Courts Reconstructing Treaty Obligations

7

of interpreting a treaty is ‘designed to determine the precise meaning of a rule, but it cannot change its meaning’.35 One important question is how much evolutionary interpretation can be permitted before the interpretation extends beyond the bounds of the intention of the parties. This question is equally pressing with respect to all types of interpretation, no less so for what has been called restrictive types of interpretation than it is for evolutionary ones. It is in other words not only interpretations deserving of etiquettes such as ‘liberal’ or ‘droits-de-l’hommiste’ which may overstep the mark and end up contravening the intention of the treaty parties; this is true also of ‘conservative’ ones or those based upon ‘raisons d’État’. Though this has been largely overlooked in the literature,36 international jurisprudence has not been blind to this point. In fact, the first time the Permanent Court of International Justice touched upon this type of issue it did so not in order to allow for a large freedom for the states parties to act as they saw fit under the treaty; it was rather in order to secure an interpretation that was favourable to internationalist objects of minority protection. In this way, the Permanent Court in Acquisition of Polish Nationality declined to follow the interpretation suggested by Poland as to who was Polish for the purposes of Article 4(1) of the Treaty between the Principal Allied and Associated Powers and Poland.37 The Permanent Court stated that seeing as the treaty clause left little to be desired in the nature of clarity, it saw itself bound to apply the clause as it stood, without considering whether other provisions might with advantage have been added to or substituted for it. The Court concluded: ‘To impose an additional condition for the acquisition of Polish nationality, a condition not provided for in the Treaty of June 28th, 1919, would be equivalent not to interpreting the Treaty, but to reconstructing it’.38 The reconstruction in question was rejected because it would have led to a solution which would have been contrary to the very object of the treaty, to what the parties had intended. The text expressed that object and that intention very clearly; not to follow the clear text would therefore have amounted to reconstructing Article 4(1) of the treaty.39 In other words, as the International Court would put it in Interpretation of Peace Treaties, ‘it is the duty of the Court to interpret the Treaties, not to revise them’.40 To contravene, in this way, the intention of the treaty parties is, in other words, a danger that in no way is exclusive to evolutionary interpretation. 35 Case Concerning a Boundary Dispute between Argentina and Chile Concerning the Delimitation of the Frontier Line between Boundary Post 62 and Mount Fitzroy (1994) 22 RIAA 3, 25 at [75]. 36 See, however, R Kolb, Interprétation et création du droit international. Esquisse d’une herméneutique juridique moderne pour le droit international public (Bruylant, 2006), 375–6. 37 Treaty between the Principal Allied and Associated Powers and Poland, 28 June 1919, 225 CTS 412. 38 Acquisition of Polish Nationality PCIJ (1923) Series B No 7, 7, 20. 39 Kolb, Interprétation et création du droit international (n 36), 376. 40 Interpretation of Peace Treaties (Second Phase) (Advisory Opinion) [1950] ICJ Rep 221, 229; Rights of Nationals of the United States of America in Morocco (France v United States of America) [1952] ICJ Rep 1952 176, 196. Also: Case Concerning the Delimitation of the Maritime Boundary between Guinea-Bissau and Senegal (Guinea-Bissau v Senegal) (1989) 10 RIAA 119, 151 at [85]; Case Concerning a Boundary Dispute between Argentina and Chile Concerning the Delimitation of the Frontier Line between Boundary Post 62 and Mount Fitzroy (1994) 22 RIAA 3, 25 at [75].

8

Introduction

As adumbrated above,41 what is central in the method of treaty interpretation is that a convention is interpreted so as to be effective in terms of the intention of the parties. As the ILC’s first Special Rapporteur on the law of treaties, Brierly, put it: the object is ‘to give effect to the intention of the parties as fully and fairly as possible’.42 What one ought to understand by the words ‘intention of the parties’ will be set out in more detail below.43 At any rate this full and fair giving of effect, plainly linked to the so-called principle of effectiveness, is taken as seriously by the International Court, and arbitral tribunals, as for example the European Court of Human Rights. Among many writers it has nonetheless become de rigueur to hold that the methods applied by different types of Tribunal are widely at variance with each other. It has been averred that the European Court of Human Rights, in interpreting the European Convention on Human Rights (ECHR),44 ‘departs from the canons of interpretation’ to such an extent that it ‘must have been an unacceptable (if not shocking) violation of the sacred principles of international law for classical international lawyers’.45 Here it will be argued that evolutionary interpretation is entirely in line with the approach taken to treaty interpretation in the classical law of treaties. Consider the example of effectiveness in treaty interpretation (‘effet utile’)46 which, as the Tribunal in Iron Rhine explained,47 can lead to an evolutionary interpretation.48 The International Court brought out the importance of the principle of effectiveness in Territorial Dispute, where it relied in the interpretation of a boundary treaty on ‘one of the fundamental principles of interpretation of treaties, consistently upheld by international jurisprudence, namely that of effectiveness’.49 The same was underlined in Airey v United Kingdom, where the European Court held that the Convention ‘is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective’.50 In Nada v Switzerland a unanimous Grand Chamber of the European Court underlined that the provisions of the Convention must be ‘interpreted and applied in a manner that renders its guarantees practical and effective’.51 See Ch 1.1. JL Brierly, The Law of Nations: An Introduction to the International Law of Peace (Oxford 43 University Press, 1928), 168. See Ch 3.1. 44 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 222. 45 M Fitzmaurice, ‘The Practical Working of the Law of Treaties’ in MD Evans, International Law (3rd edn, Oxford University Press, 2010), 188; M Fitzmaurice, ‘Dynamic (Evolutive) Interpretation of Treaties and the European Court of Human Rights’ in A Orakhelashvili and S Williams (eds), 40 Years of the Vienna Convention on Treaties (British Institute of International and Comparative Law, 2010), 92. 46 Dispute between Argentina and Chile concerning the Beagle Channel (1977) 21 RIAA 53, 231. 47 Award in the Arbitration regarding the Iron Rhine (‘Ijzeren Rijn’) (Belgium v Netherlands) (2005) 48 27 RIAA 35, 64 at [49]. See Ch 3. 49 Territorial Dispute (Libya/Chad) (Judgment) ICJ Rep 21, 23. Also: Lighthouses Case between France and Greece (Judgment) (1934) PCIJ Series A/B No 62, 27; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) [1971] ICJ Rep 16, 35 at [66]; Aegean Sea Continental Shelf [1978] ICJ Rep 3, 22 at [52]. 50 Airey v United Kingdom App No 6289/73, judgment 9 October 1979 at [24]. 51 Nada v Switzerland App No 10593/08, judgment [GC] 12 September 2012 at [182] and [195]. 41

42

The Positions with Which this Book Takes Issue

9

The Tribunal in Iron Rhine said of the principles relevant to the process of interpretation that: ‘of particular importance is the principle of effectiveness ut res magis valeat quam pereat’.52 The importance in general international law of this principle was also underscored in Beagle Channel. One may even be forgiven for thinking that the Tribunal in this boundary dispute put the matter rather strongly when it stated that it could only ignore the rule of effet utile ‘with the result that the Treaty, instead of being “interpreted”, is amended and adapted in a manner that contradicts its letter and spirit’.53 There is, in other words, more than just a casual affinity between what the Beagle Channel Tribunal stated in this regard and what the Permanent Court held in Acquisition of Polish Nationality.54 The principle of effectiveness is no more than one facet of a larger picture. In his famous dissenting opinion in Belgian Police, Judge Fitzmaurice stated that it was not the case ‘that a Convention such as the [European Convention on Human Rights] should be interpreted in a narrowly restrictive way’. Instead, he continued, the Convention should: be given a reasonably liberal construction that would also take into consideration manifest changes or developments in the climate of opinion which have occurred since the Convention was concluded.55

Fitzmaurice had, in fact, made the point, as early as in 1951, that ‘there may well be a special case for the use of what might be called creative or dynamic methods of interpretation’.56

1.3 Outline of the Positions with Which this Book Takes Issue The claim that there is one method only, and that it is applied across the board, leads on to the next element of the main thesis of this book: the evolutionary interpretation of treaties. It is argued here that evolutionary interpretation is nothing if not an expression of the traditional canons of treaty construction. Furthermore, it is argued that there are times when it is necessary, in order to respect the parties’ common intention at the time when the treaty was concluded, to take account of the meaning acquired by the terms in question upon each occasion on which the treaty is to be applied.57 In some cases, not to make an evolutionary interpretation would be that which would run counter to the intentions of the parties, and by extension go against the grain of the classical canons of interpretation. 52 Award in the Arbitration regarding the Iron Rhine (‘Ijzeren Rijn’) (Belgium v Netherlands) (2005) 27 RIAA 35, 64. 53 Dispute between Argentina and Chile concerning the Beagle Channel (1977) 21 RIAA 53, 231. 54 Acquisition of Polish Nationality (1923) PCIJ Series B No 7, 7, 20. 55 Separate Opinion of Judge Sir Gerald Fitzmaurice, National Union of Belgian Police (1980) 57 ILR 262, 295. 56 G Fitzmaurice, ‘The Law and Procedure of the International Court of Justice: Treaty Interpretation and Certain other Treaty Points’ (1951) 28 BYIL 1, 8. 57 See Dispute regarding Navigational and Related Rights (n 2), 242.

10

Introduction

Many leading authors have argued that evolutionary interpretation is best understood as instances of international courts and tribunals departing (that is, deviating) from the intention of the parties at the time of conclusion of a treaty.58 This seems at times to be based on an assumption that correct application of Article 31 of the VCLT does not lead to the intention of the parties.59 Another position with which this book takes issue is the view that evolutionary interpretation is in principle more suited for some types of treaty than it is for others. Simma has cast this view in the following terms: the interpretation adopted by the International Court in Navigational Rights, where the Court made an evolutionary interpretation of the treaty term ‘commerce’, was an indication of ‘the willingness of the Court to test the application of progressive traits originally developed in specialized human rights jurisprudence to other branches of international law’.60 The former Judge of the International Court, in other words, viewed treaty interpretation in a boundary case as a situation for which evolutionary interpretation was not naturally suited, whereas it was naturally suited to the interpretation of human rights treaties. Simma’s point is forcefully made. It is, however, also wrong. Here it will be argued that evolutionary interpretation is a natural part of the classical canons of construction, and thus also of the rules codified in Articles 31–33 of the Vienna Convention. Evolutionary interpretation has also been applied as a matter of course in international jurisprudence in fields far removed from that of human rights, arguably even before the human rights bodies came into existence. One example which goes some way in illustrating this is the 1925 Spanish Zone of Morocco Claims, in respect of British rights, dating back to 1783, to a ‘maison convenable’ to be used as British consulate in the Spanish Zone of Morocco.61 The long timespan between 1783 and 1925 gave rise to the question of whether the concept of an appropriate house for consular purposes had evolved. ‘Ces droits’, sole arbitrator Huber held, ‘ne visent que l’usufruit d’une résidence “convenable”; sans doute, cette dernière expression doit être interprétée au point de vue des exigences de nos jours’.62 The right to the usufruct of a consular residence in 1925 must be appropriate according to the conditions of the present day and not to the conditions prevailing at an earlier time. Given that the Tribunal made allowance for developments in international law which had occurred since the treaty was concluded,63 Spanish Zone of Morocco Claims is an example of the evolutionary interpretation of treaties, in a case far removed both in time and content from modern human

See eg Crawford, State Responsibility: The General Part (n 25), 246. R Bernhardt, ‘Evolutive Treaty Interpretation—Especially of the European Convention on Human Rights’ (1999) 42 GYIL 11, 14. 60 B Simma, ‘Mainstreaming Human Rights: The Contribution of the International Court of Justice’ (2012) 3 JIDS 1, 20; B Simma, ‘Human Rights before the International Court of Justice: Community Interest Coming to Life?’ in CJ Tams and J Sloan (eds), The Development of International Law by the International Court of Justice (Oxford University Press, 2013), 323. 61 British Claims in the Spanish Zone of Morocco (1925) 2 RIAA 722; (1923–24) 2 Annual Digest and Reports of Public International Law Cases 19. 62 British Claims in the Spanish Zone of Morocco (1925) 2 RIAA 722, 725. 63 Dispute regarding Navigational and Related Rights (n 2), 242 at [64]. 58 59

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rights law. McNair said about the evolutionary approach adopted in Spanish Zone of Morocco Claims that it gave the terms of the treaty ‘a proper and common-sense interpretation’.64 It is true that the European Court of Human Rights takes the same approach, and it has done so using almost the same language as was used in Spanish Zone of Morocco Claims. The European Court held in Tyrer v United Kingdom that the ECHR ‘est un instrument vivant à interpréter . . . à la lumière des conditions de vie actuelles’—‘a living instrument’ to be ‘interpreted in the light of present-day conditions’.65 The Inter-American Court of Human Rights, too, has taken this approach. As the Inter-American Court has held in a number of cases: ‘human rights treaties are live instruments whose interpretation must adapt to the evolution of the times and, specifically, to current living conditions’.66 The same is the case with the African Commission on Human and Peoples’ Rights, which in Endorois adopted a living instrument approach in interpreting the term ‘peoples’ to extend also to indigenous groups.67 Other human rights treaty bodies have followed suit. In Judge v Canada the UN Human Rights Committee said of the International Covenant on Civil and Political Rights (ICCPR)68 that it ‘should be interpreted as a living instrument and the rights protected under it should be applied in context and in the light of present-day conditions’.69 The same is the case with the UN Committee on the Elimination of Racial Discrimination, which held in Hagan v Australia that the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD),70 ‘as a living instrument, must be interpreted and applied taking into [account] the circumstances of contemporary society’.71 The human rights bodies have followed the approach taken in general international law. Waldock pointed out that ‘the problem of interpretation caused by an evolution in the meaning generally attached to a concept embodied in a treaty provision is, of course, neither new nor confined to human rights’. He went on, in a AD McNair, The Law of Treaties (2nd edn, Oxford University Press, 1961), 468. Tyrer v United-Kingdom (1978) 58 ILR 339, 353. The Mayagna (Sumo) Awas Tingni Community v Nicaragua (2008) 136 ILR 73, 192 at [146]– [148] [146]; Bámaca Velásquez v Guatemala, Series C No 70, judgment 2 November 2000 at [158]; Case of the Gómez Paquiyauri Brothers, Series C No 110, judgment 8 July 8 2004 at [165]; Case of the ‘Street Children’ (Villagrán Morales et al), Series C No 63, judgment 19 November 1999 at [193]; The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Series A No 16 Advisory Opinion OC–16/97, 14 November 1997 at [114]; Juridical Condition and Rights of the Undocumented Migrants, Series A No 18 Advisory Opinion OC–18/03, 17 September 2003 at [120]. 67 Centre for Minority Rights Development (Kenya) and Minority Rights Group International on Behalf of Endorois Welfare Council v Kenya, Communication 276/2003, 4 February 2010. 68 International Covenant on Civil and Policial Rights, 16 December 1966, 999 UNTS 171. 69 Judge v Canada No 829/1998, Communication 5 August 2002, UN Doc CCPR/ C/78/D/829/1998 at [10.3]. 70 International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, 660 UNTS 195. 71 Hagan v Australia No 26/2002, Communication 20 March 2003, UN Doc CERD/ C/62/D/26/2002 at [7.3]. 64 65

66

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Introduction

discussion of Airey and Tyrer, to describe the method of the European Court as one according to which ‘the meaning and content of the provisions of the Convention will be understood by the Commission and the Court of Human Rights as intended to evolve in response to changes in legal or social concepts’; ‘this approach to the construction of the Convention is in harmony with the general principles governing the interpretation of treaties’, he concluded.72 It is only fitting, therefore, that it took someone with a background in general international law to coin the phrase ‘living instrument’. For it was Sørensen, nothing if not a classical international lawyer,73 who seems to have been the first to use the phrase when he stated in 1975—three years before the European Court was to adopt the coinage—that: ‘The European Convention on Human Rights is a living instrument’; ‘its provisions are capable of being interpreted in such a way as to keep pace with social pace’.74 It later became clear, in the jurisprudence of the European Court, that the Convention was then seen as being a living instrument to be interpreted in the light of present-day conditions.75 On this background, it is possible to argue for a different reading than the one propounded by Simma. Bernhardt, a former President of the European Court of Human Rights, has gone further than Simma in arguing that evolutionary interpretation is particular to human rights treaties. Thus Bernhardt has argued that although the provisions on treaty interpretation contained in the VCLT on their face seem to make no distinction between different types of treaty, this ought not to detract from the fact that the object and purpose of human rights treaties set them apart from other types of treaty. Human rights treaties must therefore, he maintains, be interpreted differently from other types of treaty in international law. The impression that the principles of treaty interpretation apply similarly to all types of treaty, he says, ‘is either misleading or else correct only on a highly abstract level’; when it comes to human rights treaties, he concludes, the traditional rules of treaty interpretation ‘need some adjustment’.76 Velu and Egrec have taken the same view on the interpretation of the ECHR. The ECHR, they argue, is a sui generis instrument. They have held that the classical canons of interpretation ‘doivent s’infléchir au contact des 72 H Waldock, ‘The Evolution of Human Rights Concepts and the Application of the European Convention on Human Rights’ in Mélanges offerts à Paul Reuter—Le droit international: unité et diversité (Pedone, 1981), 536, 547. 73 See Dissenting Opinion of Judge ad hoc Sørensen, North Sea Continental Shelf (Federal Republic of Germany/Netherlands; Federal Republic of Germany/Denmark) [1969] ICJ Rep 3, 242; M Sørensen, Les sources du droit international: Étude sur la jurisprudence de la Cour permanente de justice internationale (Einar Munksgaard, 1946); M Sørensen (ed), Manual of Public International Law (Macmillan, 1968). 74 M Sørensen, ‘Do the Rights Set forth in the European Convention on Human Rights in 1950 have the Same Significance in 1975? Report presented by Max Sørensen to the Fourth International Colloquy about the European Convention on Human Rights, Rome 5–8 November 1975’: reprinted in Max Sørensen: A Bibliography (Aarhus University Press, 1988), 23, 54–5. 75 E Bates, The Evolution of the European Convention on Human Rights: From Its Inception to the Creation of a Permanent Court of Human Rights (Oxford University Press, 2010), 328–33. 76 R Bernhardt, ‘Thoughts on the Interpretation of Human-Rights Treaties’ in F Matscher and H Petzold (eds), Protecting Human Rights: The European Dimension. Studies in Honour of Gérard J Wiarda (Carl Heymanns Verlag, 1988), 65, 70–1.

The Positions with Which this Book Takes Issue

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méthodes plus adaptées à cet aspect spécifique de la Convention, méthodes qui évoquent, à certains égards, celles dont usent les cours constitutionnelles nationales’.77 Letsas has taken a strong position in this regard. He argues that different kinds of project will call for different methods of interpretation; it is thus necessary to adopt a particular interpretive approach to international human rights treaties. This, in Letsas’s view, is partly because a ‘first misconception is to think that Articles 31–33 VCLT set out single rules of interpretation for all treaties’; ‘there are no general methods of treaty interpretation’.78 Weiler draws similar conclusions, with respect to the classical canons of interpretation on the one hand and EU law on the other. He has stated about the interpretation adopted by the European Court of Justice that it is teleological and purposive, ‘drawn from the book of constitutional interpretation’ and not from the law of treaties.79 Indeed, he has called for a re-examination of treaty interpretation; in his view a stronger emphasis must be put on the fact that different types of international Tribunal apply different hermeneutics to different types of treaty regime.80 He thus sees treaty interpretation as a wide-ranging set of practices. In fact the thread that runs through his work in this field is that the general rule of interpretation in ‘Article 31 is both descriptively and prescriptively an “unreal” signpost of contemporary treaty interpretation’.81 As will become clear in Chapters 2–3, this book takes another view of these issues. With regard to the temporal aspect, it will be argued that the prominent place of evolutionary interpretation in the law of treaties is further reinforced by the rules of intertemporal law. It will in this regard be necessary to analyse and to take issue with the view, prevalent in the decisions of international tribunals, that evolutionary interpretation goes against the grain of the intertemporal law. This view, I shall argue, is often based upon a misconstruction of the principle of intertemporality, which takes into account only the first limb of the rule.82 An attendant view is that it is only as an exception to this (limited and ultimately erroneous) understanding 77 J Velu and R Ergec, La Convention européenne des droits de l’ homme (Bruylant, 1990), 51. Also: MA Eissen, ‘La Cour européenne des droits de l’homme’ (1986) 102 RdP 1539, 1586–7; G Cohen-Jonathan and JP Jacqué, ‘Activité de la Commission européenne des droits de l’homme’ (1982) 28 AFDI 513, 527; WJ Ganshof van der Meersch, ‘Quelques aperçus de la méthode d’interprétation de la Convention de Rome du 4 novembre 1950 par la Cour européenne des droits de l’homme’ in Mélanges offerts à Robert Legros (Éditions de l’Université de Bruxelles, 1985), 209–10; WJ Ganshof van der Meersch, ‘Le caractère “autonome” des termes et “la marge d’appreciation” des gouvernements dans l’interprétation de la Convention européenne des droits de l’homme’ in F Matscher and H Petzold (eds), Protecting Human Rights: The European Dimension. Studies in Honour of Gérard J Wiarda (Carl Heymanns Verlag, 1988), 202. 78 G Letsas, ‘Strasbourg’s Interpretive Ethic: Lessons for the International Lawyer’ (2010) 21 EJIL 509, 512, 538–41. Also C Brölmann, ‘Specialized Rules of Treaty Interpretation: International Organizations’ in D Hollis (ed), Oxford Guide to Treaties (Oxford University Press, 2012), 507–12. 79 JHH Weiler, ‘The Transformation of Europe’ (1991) 100 Yale LJ 2403, 2416. 80 JHH Weiler, ‘The Interpretation of Treaties—A Re-Examination’ (2010) 21 EJIL 507. 81 JHH Weiler, ‘Prolegomena to a Meso-Theory of Treaty Interpretation at the Turn of the Century’, IILJ International Legal Theory Colloquim: Interpretation and Judgment in International Law (NYU Law School, 14 February 2008), 14. 82 Award in the Arbitration regarding the Iron Rhine (‘Ijzeren Rijn’) (Belgium v Netherlands) (2005) 27 RIAA 35, 72–3; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening) (Judgment) [2002] ICJ Rep 303, 405.

14

Introduction

of the principle of intertemporality that evolutionary interpretation becomes possible.83 This view is built upon a misunderstanding of what the rule of intertemporal law is. The second limb, I shall argue, is quite as important as the first. The corollary in the second limb of the rule, the one focusing on the evolution of the law, goes entirely with the grain of evolutionary interpretation, and it will be argued that the two are in fact cut from the same cloth.

1.4 Methodological Questions 1.4.1 Treaties as a source of law It is appropriate to say a few words about the nature of the treaty as a source of law in international law, and what this might mean for the topic of the present study. Article 38(1) of the Statute of the International Court of Justice identifies ‘international conventions, whether general or particular, establishing rules expressly recognized by the contesting states’ as one of the formally recognized sources of international law.84 A treaty, according to Fitzmaurice, is strictly speaking not a source of law as much as a source of obligation under law. On this understanding, treaties are a material rather than a formal source of law. Treaties are no more a source of law than an ordinary contract which simply creates rights and obligations, according to Fitzmaurice. Conventional instruments thus do not create law; they create obligations. The only ‘law’ that enters into treaties, Fitzmaurice concluded, is derived not from the treaty which creates them, but from the rule of customary international law summed up by the words pacta sunt servanda.85 This view is echoed in the modern literature, where it is argued that the incidence of particular conventional obligations is a matter distinct from the sources of general international law, which is made by more diffuse processes. On this view treaties as such are a source of obligation and not a source of rules of general application.86 83 See eg Separate Opinion of Judge El-Khasawneh in Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening) (Judgment) [2002] ICJ Rep 303, 503. 84 Statute of the International Court of Justice, 26 June 1945, 892 UNTS 119. Also: M Sørensen, Les sources du droit international: Étude sur la jurisprudence de la Cour permanente de justice internationale (Einar Munksgaard, 1946), 28–30; S Besson, ‘Theorizing the Sources of International Law’ in S Besson and J Tasioulas (eds), The Philosophy of International Law (Oxford University Press, 2010), 163–85. 85 G Fitzmaurice, ‘Some Problems Regarding the Formal Sources of International Law’ in Symbolae Verzijl: Présentées au Professeur JHW Verzijl à l’occasion de son LXX-ième anniversaire (Martinus Nijhoff, 1958), 157–60. Also Sørensen, Les sources du droit international (n 84), 58. Cf A Pellet, ‘Article 38’ in A Zimmermann, K Oellers-Frahm, C Tomuschat, and CJ Tams, The Statute of the International Court of Justice: A Commentary (2nd edn, Oxford University Press, 2012), 761. 86 Crawford, Brownlie’s Principles of Public International Law (n 2), 21; A Clapham, Brierly’s Law of Nations: An Introduction to the Role of International Law in International Relations (7th edn, Oxford University Press, 2012), 55–7; M Shaw, International Law (6th edn, Cambridge University Press, 2008), 94.

Methodological Questions

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For the purposes of the present study, however, this distinction has little importance, except for the importance accorded to this debate in relation to the distinction between contractual treaties and law-making treaties and the proposition that different methods of treaty interpretation apply to these allegedly different types of treaty. This I shall return to in Chapter 2 which concerns the question whether there exist in the law of treaties different types of method of treaty interpretation for different types of treaty, and what this means for the topic of evolutionarily interpreted treaty terms.

1.4.2 ‘Interpretation’ as opposed to ‘application’ of treaties Adjudication plays a very minor role in settling international disputes when the meaning of a treaty term is at issue. The role played in deciding the meaning of a statutory term in domestic systems is largely displaced in international law by the role of the parties to the treaty. This has the effect upon the rules of interpretation that it reinforces the consensual nature of treaties, and according to some authors also that the distinction between ‘interpretation’ and ‘application’ of treaties becomes paramount within the law of treaties. On this understanding, ‘application’ opens up a wider scope for case-to-case variation than does ‘interpretation’ narrowly understood.87 Sir Franklin Berman set this distinction out in his dissenting opinion in Industria Nacional de Alimentos SA and Indalsa Perú v Peru (Annulment), where he held that: ‘Whereas treaty interpretation can often be a detached exercise, it is virtually inevitable that treaty application will entail to some extent an assessment of the facts of the particular case and their correlation with the legal rights and obligations in play’.88 McNair thus observed that ‘the words “interpret”, “interpretation” are often used loosely as if they included “apply”, “application”. Strictly speaking, when the meaning of the treaty is clear, it is “applied”, not “interpreted” ’. This way of conceptualizing the issue has been convincingly criticized by Gardiner, as it ‘sets on its head the natural sequence that is inherent in the process of reading a treaty: first ascribing meaning to its terms and then applying the outcome to a particular situation’.89 McNair went on by saying that: ‘Interpretation is a secondary process which only comes into play when it is impossible to make sense of the plain terms of the treaty, or when they are susceptible of different meanings’.90 This statement seems to owe something to Vattel’s famous dictum about ‘clear meaning’, according to which ‘il n’est pas permis d’interpréter ce qui n’a pas besoin d’interprétation’,91 and 87 F Berman, ‘International Treaties and British Statutes’ (2005) 26 SLR 1, 10. Also: Fife, ‘Les techniques interprétatives’ (n 13); A Gourgourinis, ‘The Distinction between Interpretation and Application of Norms in International Adjudication’ (2011) 2 JIDS 31. 88 Dissenting Opinion, Judge Sir Franklin Berman, Industria Nacional de Alimentos SA and Indalsa Perú (formerly Lucchetti SA and Lucchetti Perú SA) v Peru (Annulment) Case No ARB/03/4 at [15]. 89 Gardiner, Treaty Interpretation (n 2), 27–8. 90 McNair, The Law of Treaties (n 64), 365. 91 E de Vattel, Le droit des gens II (1758) ch XVII at [263].

16

Introduction

is susceptible to the same criticism that was levelled at the ‘clear meaning’ rule, that is, as Lauterpacht put it, the statement ‘assumes as a fact what has still to be proved and that it proceeds not from the starting point of the inquiry but from what is normally the result of it’.92 A better definition than McNair’s is perhaps that given by Judge Ehrlich at the jurisdictional stage in Factory at Chorzow, who said that ‘interpretation’ and ‘application’: refer to processes, of which one, interpretation, is that of determining the meaning of a rule, while the other, application, is, in one sense, that of determining the consequences which the rule attaches to the occurrence of a given fact; in another sense, application is the action of bringing about the consequences which, according to a rule, should follow a fact. Disputes concerning interpretation or application are, therefore, disputes as to the meaning of a rule or as to whether the consequences which the rule attaches to a fact, should follow in a given case.93

Nonetheless, as Judge Shahabuddeen pointed out in Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, the distinction will often be a highly academic one, given that on the one hand ‘it is not possible to apply a treaty save with reference to some factual field’ and, on the other, ‘it is not possible to apply a treaty except on the basis of some interpretation of it’.94 Of interest for the present purposes is the way in which interpretation and application are seen as discrete exercises in relation to the meaning of treaty terms and the passage of time. The principle of intertemporality refers to the principles which determine whether a provision is to be interpreted as at the time of the conclusion or of the application of the convention in which the provision is contained.95 It is in relation to the question of intertemporality that the debate on ‘interpretation’ and ‘application’ has had the greatest purchase within the law of treaties.96 The first draft of the provision which would become Article 31(3)(c), the projected draft Article 56, was meant, before it was discarded by the ILC, to translate the intertemporal law in terms of ‘interpretation’ and ‘application’. Thus the article provided: (1) A treaty is to be interpreted in the light of the law in force at the time when the treaty was drawn up. (2) Subject to paragraph 1, the application of a treaty shall be governed by the rules of international law in force at the time when the treaty is applied.97 92 H Lauterpacht, The Development of International Law by the International Court (Stevens & Sons, 1958), 52. 93 Dissenting Opinion of Judge Ehrlich, Factory at Chorzow, Jurisdiction (1927) PCIJ Series A No 9, 39. 94 Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947 (Advisory Opinion) [1988] ICJ Rep 57, 59. Also: Gardiner, Treaty Interpretation (n 2), 28; MK Yasseen, ‘L’interprétation des traités d’après la convention de Vienne sur le droit des traités’ (1976) 151 Hague Recueil 1, 10. 95 See Ch 4. 96 Gardiner, Treaty Interpretation (n 2), 256–8. 97 ILC Ybk 1964/II, 8–9 (emphasis added). See Ch 4 for the intertemporal law.

Methodological Questions

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The interpretation of the treaty must, on this model, take consideration only of those rules and facts obtaining at the time when the treaty was concluded; the application, however, must, at any given time, take account of the rules and facts obtaining at the time when the treaty is being interpreted.98 This model is mirrored by Milanovic, who sees interpretation as meaning the activity of establishing the linguistic or semantic meaning of a text, whereas application is the activity of translating that text into workable legal rules to be applied in a given case. In his view, when a court engages in evolutionary interpretation, the interpretation of the term at issue stays the same; it is only the application that has been altered. Whilst Milanovic admits that the distinction between interpretation and application may be hard to draw, he sees it as indispensable, as it is the only way of assuring the fixation of the core of a legal norm, and thus the only way of assuring a level of legal certainty and predictability, all the while allowing for non-legislative change in the law.99 In fact, the consequences of adopting this approach was carefully weighed by the ILC and in the end discarded.100 The ILC considered that to formulate, on the basis of the distinction between ‘interpretation’ and ‘application’, a rule covering the temporal element would present difficulties. Instead, the ILC went back to the basics of the law of treaties: ‘the relevance of rules of international law for the interpretation of treaties in any given case was dependent on the intentions of the parties’; ‘correct application of the temporal element would normally be indicated by interpretation of the term in good faith’.101 For the purposes of analysis of what is the evolutionary interpretation of treaties, this book follows the approach taken by the ILC; it does not rely upon the distinction between ‘interpretation’ and ‘application’. Rather than searching for the wellspring of evolutionary interpretation in the interstices of the distinction between ‘interpretation’ and ‘application’, this book follows Simma in seeing the means of interpretation enumerated in Article 31 as making up the sedes materiae of the phenomenon.102 As will become clear, this means searching for the objectivized intention of the parties.

1.4.3 The theoretical approach taken in this book Secondly, a word should be said about the theoretical approach taken in this study. Increasingly, studies of the sources of law in international law, of treaty interpretation, and of legal evolution take theoretical approaches which go far in questioning, ILC Ybk 1964/II, 8–10. M Milanovic, ‘The ICJ and Evolutionary Interpretation’ (EJIL: Talk!, 14 July 2009) . Also B Simma, ‘Miscellanous Thoughts on Subsequent Agreements and Practice’ in G Nolte (ed), Treaties and Subsequent Practice (Oxford University Press, 2013), 48–9. 100 ILC Ybk 1966/II, 222. 101 ILC Ybk 1966/II, 222 at [16]. Also: Hersch Lauterpacht, International Law—Collected Papers IV (Cambridge University Press, 1978), 437–8; Berman, ‘International Treaties and British Statutes’ (n 87), 10; Gardiner, Treaty Interpretation (n 2), 256–9. 102 Simma, ‘Miscellanous Thoughts on Subsequent Agreements and Practice’ (n 99), 48. 98

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Introduction

if not undermining, the possibility of believing in international law as law.103 This type of analysis may certainly have an important role to play, as it may enrich our understanding of international law, and the relation between international law and international politics.104 Sometimes it seems the danger may arise, however, that this type of analysis goes too far in undermining the legal nature of international law.105 As will become clear in the following, this study does not apply this type of analysis. Evolution and evolutionary changes have made up the basis for many theories of (linguistic) interpretation.106 Perhaps the fascinating element with respect to ‘evolution’ in relation to law is that it represents change which builds upon that which already exists, rather than change which makes a clean break with the past. As Robin Cooke, later ennobled as Lord Cooke of Thorndon, once put it in relation to the developments of the common law designed to meet the changing circumstances of modern conditions, ‘developments of this kind are evolutionary’; ‘they do not represent a break with the past’.107 This view has been taken also more generally with respect to developments of international law, whether they are based upon treaty interpretation or not. Weiler, for example, sees this type of development as accretion, and thus brings out how legal change indeed builds upon already existing elements.108 One gets the impression that this is one of the reasons why Luhmann in his works on law in society turned to ‘legal evolution’ in developing a theory of legal change.109 Related to Luhmann’s view is that of Bourdieu, who in his sociological works on law was interested in that which he termed ‘the force of law’.110 Bourdieu saw law in terms of social fields. Such fields are settings in which agents, with their social positions, are located: It is not by chance that the attitudes concerning exegesis and jurisprudence, concerning the sanctity of doctrine on the one hand and its necessary adjustment to concrete realities on the other, seem to correspond rather closely to the positions that their holders occupy within the field. On one side of the debate today, we find the adherents of private law, and

103 J d’Aspremont, Formalism and the Sources of International Law: A Theory of Ascertainment of Legal Rules (Oxford University Press, 2011); I Venzke, How Interpretation Makes International Law: On Semantic Change and Normative Twists (Oxford University Press, 2012); C Focarelli, International Law as a Social Construct: The Struggle for Global Justice (Oxford University Press, 2012). 104 See eg S Marks, The Riddle of All Constitutions: International Law, Democracy, and the Critique of Ideology (Oxford University Press, 2000); S Marks (ed), International Law on the Left (Cambridge University Press, 2008); A Lang, World Trade after Neoliberalism: Reimagining the Global Economic Order (Oxford University Press, 2011). 105 Crawford, Brownlie’s Principles of Public International Law (n 2), 18. 106 See Venzke, How Interpretation Makes International Law (n 103), 38–46. 107 RB Cooke, ‘The Rights of Citizens’ in RS Milne (ed), Bureaucracy in New Zealand (Oxford University Press, 1957), 99. 108 JHH Weiler, ‘The Geology of International Law—Governance, Democracy and Legitimacy’ (2005) 64 ZaöRV 547, 549. 109 N Luhmann, Das Recht der Gesellschaft (Suhrkamp, 1993), 239–69. 110 P Bourdieu, ‘The Force of Law: Toward a Sociology of the Juridical Field’ (1987) 38 Hastings LJ 814.

Methodological Questions

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particularly of civil law, which the neo-liberal tradition, basing itself upon the economy, has recently resurrected. On the other, we find disciplines such as public law or labor law, which formed in opposition to civil law. These disciplines are based upon the extension of bureaucracy and the strengthening of movements for political rights, or social welfare (droit social), defined by its defenders as the ‘science’ which, with the help of sociology, allows adaption of the law to social evolution.111

This type of analysis has as much (or as little, depending upon one’s point of view) purchase on international law as it has on municipal law. Koskenniemi thus sees international law in similar terms and concludes, in a discussion specifically of legal evolution, in relation to the South West Africa112 and Namibia cases,113 that questions related to similar divides as those which Bourdieu draws up are questions to which no legal answers may be given: The making of a decision between claims of stability and change is always both contextual and indeterminate. It is contextual because we are able to make a preference only by looking at contextual will and justice. It is indeterminate because there exist no legal criteria whereby differing views about will and justice could be resolved.114

Indeterminacy—even radical indeterminacy—seems to be the conclusion which inexorably flows from this type of perspective.115 The attraction of this type of perspective does, however, have a specious quality. It is true that the institutions of international law, of which the law of treaties is one, have at times given rise to undesirable outcomes, as wealth and power are extremely unequally divided and international law often fails where one might have hoped that it could make a difference. It is easy on this background to be sceptical about the claims that international law makes for itself—but it is also facile. Whilst one should be critical, one should also admit that there are things which can be done only by way of collective action and the kind of cooperation for which international law lays down a framework.116 Sir Gerald Fitzmaurice made a similar point already in 1974. To his mind there were: fields in which it is becoming clear that the nation-State alone cannot assure the protection of the individual—even its own particular subjects of citizens—from the prospect of serious harm,—and where in the long run only international action, internationally

Bourdieu, ‘The Force of Law’ (n 110), 852. South West Africa, Second Phase (Judgment) [1966] ICJ Rep 6. 113 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) [1971] ICJ Rep 35. 114 M Koskenniemi, From Apology to Utopia (2nd edn, Cambridge University Press, 2005), 461. 115 See also M Koskenniemi, ‘International Law in the World of Ideas’ in J Crawford, M Koskenniemi, and S Ranganathan (eds), The Cambridge Companion to International Law (Cambridge University Press, 2012), 47. 116 Eg Vienna Convention for the Protection of the Ozone Layer, 22 March 1985, 1513 UNTS 324; Montreal Protocol on Substances that Deplete the Ozone Layer, 16 September 1987, 1522 UNTS 28; Declaration of UN General Assembly on ‘Permanent Sovereignty over Natural Resources’ GA Res 1803, 18 December 1972; International Convention for the Regulation of Whaling, 2 December 1946, 161 UNTS 72. See Crawford, Brownlie’s Principles of Public International Law (n 2), 18–19. 111

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Introduction

organized and carried out, will suffice, since the mischief knows no natural boundaries, and cannot be kept out by any purely national barriers;—such things as overpopulation and its consequences in overcrowding, malnutrition and disease; the pollution of waters, rivers, seas and airspace; the overexploitation and potential exhaustion of the earth’s mineral resources and stores of fuel and power; the extinction of species and devastation of fish stocks; problems of drought, famine and hurricane damage; problems of poverty and underdevelopment; the possible misuse of outer space; terrorist activities that cross all frontiers, and ‘hi-jacking’ of aircraft and other threats to the safety of communication; the traffic in arms, narcotic drugs and slavery; forced labour; migration, emigration, conditions of work and other labour problems etc.117

Realizing this may have possible ramifications for the perspective one adopts on the particular topic of international law scrutinized in the present book. At all events, even authors such as Koskenniemi admit that it is useful to see international law as more than just indeterminate. ‘Whatever else international law might be’, he has observed, at least it is how international lawyers argue, that how they argue can be explained in terms of their specific ‘competence’ and that this can be articulated in a limited number of rules that constitute the ‘grammar’—the system of production of good legal arguments.118

From this it is possible to conclude that it is not the case that ‘every argument goes’. There is, in the context of treaty interpretation, a grammar that structures which arguments are legitimate and which are not. Whatever view one takes of structural biases in international law, interpreters cannot escape this grammar. This grammar, or structure, is spelled out, where treaty interpretation is concerned, in Articles 31–33 of the VCLT, which provide the widely accepted standard on how treaties ought to be interpreted. Whatever reasons or motivations underlie a suggested interpretation, the interpretation must be couched in the grammar of the rules of interpretation.119 Going directly to the rules of interpretation, without really going into theoretical discussions which may anyway lead to the same result, is a pragmatic approach that may therefore be defended. This study does not take the route through sociological theory but instead uses the grammar of treaty interpretation without the external perspective that such theory can provide on international law. It is worth noting that in From Apology to Utopia Koskenniemi does not only make points about the indeterminacy when he is discussing treaty interpretation. He also makes a contribution to the debate about treaty interpretation that is entirely within the positivist discourse on the subject. Commenting on the frequently made point that Article 31 of the VCLT is of the nature of a compromise, 117 G Fitzmaurice, ‘The Future of Public International Law and of the International Legal System in the Circumstances of Today’ in Institut du droit international, Livre du Centenaire 1873– 1973: Évolution et perspectives du droit international (Karger, 1973), 260. Also Clapham, Brierly’s Law of Nations (n 86), 108–9. 118 M Koskenniemi, ‘Epilogue’ in From Apology to Utopia (2nd edn, Cambridge University Press, 2005), 568. 119 Venzke, How Interpretation Makes International Law (n 103), 47–50.

Methodological Questions

21

in that it is said to refer to all interpretative methods imaginable, Koskenniemi underscores that this is so because, as Special Rapporteur Sir Humphrey Waldock pointed out,120 the text is the primary evidence of what the parties subjectively intended. As Koskenniemi concludes: ‘The justification of the (objective) textual approach is (subjective) consensual’.121 This view is plainly borne out by the practice of international courts and tribunals. Thus the Tribunal in Salini (Sir Ian Sinclair, Cremades, and Guillaume, the last of whom presided), interpreting Article 9(2) of the Jordanian–Italian Bilateral Investment Treaty ‘in conformity with Articles 31 to 33 of the Vienna Convention on the Law of Treaties’, held that ‘the common intention of the Parties is reflected in this clear text that the Tribunal has to apply’.122 It is clear that the textual approach adopted by the prestigious Tribunal in Salini is justified subjectively. In addition to Koskenniemi’s important distinctly critical contributions to our understanding of the law of treaties, then, come his constructive contributions, confirmed by the most traditional of approaches in international dispute settlement. In Koskenniemi’s view, international law is nonetheless indeterminate, because it is required at the same time to be ‘concrete’ and ‘normative’.123 The dually competing and opposing values in international law will vie for domination over each other, leaving no possibility of determinately defined concepts. International law, on this understanding, can be used to argue for any outcome, with international lawyers playing the role of willing lackeys prepared to dress any argument up in legal garb. One way of opposing this view, proffered by Crawford, is simply to make the point that it is not true that international law’s substantive indeterminacy permits any position to be justified with impeccable legal reasoning, by asking ‘how many permanent judges are there on the bench of the International Court?’ The answer, Crawford continues, ‘is 15: see Article 3(1) of the Court’s Statute. How could “impeccable legal reasoning” produce any other answer?’124 Another question to which Crawford also provides the answer, and one which is particularly relevant in the context of this book, is this: Article 31 of the Vienna Convention on the Law of Treaties is a powerful interpretive device capable of rendering sensible meaning to a text, whether or not that text was drafted with Article 31 in mind. Take the Navigational and Related Rights case, where the International Court had to interpret the Spanish phrase ‘libre navigación . . . con objetos de comercio’ in the 1858 Treaty of Limits between Costa Rica and Nicaragua. The Court unanimously adopted the Costa Rican reading of the text—‘for the purposes of commerce’, and not ILC Ybk 1964/II, 56; ILC Ybk 1966/II, 219–20. Koskenniemi, From Apology to Utopia (n 114), 334. Salini Costruttori SpA & Italstrade SpA v Hashemite Kingdom of Jordan, ICSID Case No ARB/02/13, Award 31 January 2006 at [79]. 123 Koskenniemi, From Apology to Utopia (n 114), 590–6. 124 J Crawford, Chance, Order, Change (n 20), 131. Crawford adds that ‘Art. 25(3) provides that a quorum of nine judges will suffice to constitute the Court, Art. 26 permits the use of chambers of three or more judges as the Court may determine, and Art. 29 provides that a chamber of five judges may be formed for the purpose of hearing and determining cases via summary procedure. Naturally, the number of judges on the Court increases up to 17 with the addition of ad hoc judges per Art. 31(2) of the Statute’. 120 121

122

22

Introduction

Nicaragua’s—‘with objects of trade’. It thus found the Treaty to extend to transport of persons as well as goods. That answer was, with respect, obviously right.125

International legal language, as Crawford concludes, is not so open-ended or mutable as to justify just anything; there comes a point at which a particular argument or interpretation becomes untenable.126 That approach is the one taken in this book too.

125

J Crawford, Chance, Order, Change (n 20), 119. J Crawford, Chance, Order, Change (n 20), 131.

126

2 Different Regimes, Different Methods of Interpretation? ‘There is no method except to be very intelligent.’ —TS Eliot, The Sacred Wood (Alfred A Knopf, 1921), 11.

2.1 Introduction As the questions relating to evolutionary interpretation have been seen as being closely connected to the idea that some interpretive tools (such as the wording or the object and purpose) or interpretive approaches (such as teleologic or restrictive interpretation) are by definition more pertinent for particular types of treaty than for others, it is necessary to enter into one sub-set of the debate about fragmentation of international law.1 More specifically, it is necessary to analyse the question of whether different types of treaty ought to be interpreted according to different methods. It is scarcely possible, however, to analyse this issue without also going into the broader debate on fragmentation with respect to the rule-content in different ‘regimes’ in international law. If there was some decades ago a tendency in international law to say that different fields of international law were divided by boundaries with regard to their content,then surely one could now say, that is certainly the argument advanced here, that that tendency has been reversed. This development should be seen as a positive one, as it strengthens the coherence of the international legal system.2 1 M Koskenniemi, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’, Report of the Study Group of the International Law Commission, finalized by Martti Koskenniemi A/CN.4/L.682 [159]–[171]. Also: C McLachlan, ‘The Evolution of Treaty Obligations in International Law’ in G Nolte (ed), Treaties and Subsequent Practice (Oxford University Press, 2013), 69; P Webb, International Judicial Integration and Fragmentation (Oxford University Press, 2013), 145–202; J Crawford, Chance, Order, Change: The Course of International Law (2013) 365 Hague Recueil 9, 205–29; M Andenas and E Bjorge (eds), A Farewell to Fragmentation: Reassertion and Convergence in International Law (Cambridge University Press, 2015); MA Young (ed), Regime Interaction in International Law: Facing Fragmentation (Cambridge University Press, 2012). 2 See F Berman, ‘Community Law and International Law: How Far Does Either Belong to the Other?’ in BS Markesinis (ed), The Clifford Chance Lectures Volume I: Bridging the Channel (Oxford University Press, 1996), 277.

24

Different Regimes, Different Methods of Interpretation?

By turning to these issues this chapter sets the scene for the analysis in Chapter 3 in the sense that it deals with the question of whether one may conclude from the debate on the fragmentation of law that the method of treaty interpretation is fragmented. In the upshot, the answer which this chapter provides to that question is ‘no’. First the chapter deals with the notion of self-contained regimes in international law and what their alleged existence may mean for the law of treaties. In order to do so the chapter takes issue with the reliance in the literature on a 1930 article by McNair which, it is argued here, has been widely misunderstood and taken as a licence, from a distinguished author and judge, to say that the law of treaties is as fragmented as some have seen international law itself to be. The chapter then turns to the different categorizations which have been applied to treaties (focusing on the three-way split often found in the literature between human rights treaties, constitutional treaties, and contractual treaties), and the attendant arguments that some of them call for a restrictive and sovereignty-bound style of interpretation; others, for a teleologic or evolutionary one. The chapter argues that none of these distinctions is really convincing. Then the chapter, by way of an analysis of jurisprudence from the International Court, turns to that which more directly concerns the methods of treaty interpretation adopted, and ventures to show that not only does the Court use interpretation in order to dispel misgivings in the literature about the fragmentation of international law; it also, and by the same token, shows, through the interpretive approaches it applies, that the method of treaty interpretation itself is not fragmented but in fact unified and coherent.3 In particular, two classic judgments have been seen as setting out the classical parameters of the debate on ‘self-contained regimes’ in international law.4 In Case of the SS ‘Wimbledon’ the Permanent Court held that the provisions relating to the Kiel Canal in the Treaty of Versailles were ‘self-contained’,5 and in United States Diplomatic Consular Staff in Tehran the International Court concluded that ‘the rules of diplomatic law, in short, constitute a self-contained regime’.6 3 R Gardiner, Treaty Interpretation (paperback edn, Oxford University Press, 2011), 142; N Matz-Lück, ‘Norm Interpretation across International Regimes: Competences and Legitimacy’ in MA Young (ed), Regime Interaction in International Law: Facing Fragmentation (Cambridge University Press, 2012), 211–27. 4 See eg B Simma, ‘Self-Contained Regimes’ (1985) 16 NYIL 111, 115–17; B Simma and D Pulkowski, ‘Of Planets and the Universe: Self-Contained Regimes in International Law’ (2006) 17 EJIL 483, 491–2; B Simma and D Pulkowski, ‘Leges speciales and Self-Contained Regimes’ in J Crawford et al (eds), The Law of International Responsibility (Oxford University Press, 2010), 140–50; Koskenniemi, ‘Fragmentation of International Law’ (n 1) at [123]–[127]; J Crawford and P Nevill, ‘Relations between International Courts and Tribunals: The “Regime Problem”’ in MA Young (ed), Regime Interaction in International Law: Facing Fragmentation (Cambridge University Press, 2012), 257–9. 5 Case of the SS ‘Wimbledon’ (1923) PCIJ Series A No 1, 15, 23–4. Also: Exchange of Greek and Turkish Populations (Advisory Opinion) (1925) PCIJ Series A No 10, 6, 20 where the Permanent Court said about the interpretation of Art 2 of the Lausanne Convention VI of 1923 that the convention was ‘self-contained’ but in this case it seems that the point was that the convention was self-contained vis-à-vis national law—a wholly uncontroversial proposition: Nationality Decrees Issued in Tunisia and Morocco (French Zone) (Advisory Opinion) (1923) PCIJ Series B No 4, 24. 6 United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) (Judgment) [1980] ICJ Rep 3, 40 at [86].

Introduction

25

The Report of the Study Group of the International Law Commission (ILC) made the point that conflict-resolution and interpretation cannot be distinguished from each other; whether there is a conflict and what can be done to it prima facie depends upon the way in which the relevant rules are interpreted. The ILC pointed to Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT)7 as the ‘master key’ to the house of international law. But it also stressed that there is no need for formal reference to Article 31(3)(c) as ‘other techniques provide sufficiently the need to take into account the normative environment’ of a treaty.8 The principle of systemic integration, to which the ILC pointed with approval, has a long pedigree in international law. McNair pointed out how treaties must be ‘applied and interpreted against the background of the general principles of international law’.9 The arbitral Tribunal in Georges Pinson even held that a treaty must be seen as referring ‘tacitement au droit international commun, pour toutes les questions qu’elle ne résout pas elle-même en termes exprès et d’une façon différente’.10 Not only has international law for many decades demanded that general international law has a role to play in treaty interpretation, it has also pointed to a need to take into account the normative environment more widely.11 This point was made by the Tribunal in Tardieu-Jaspard: ‘il faut tenir compte du fait qu’il faut placer et interpréter l’accord Tardieu-Jaspar dans le cadre des accords de La Haye de janvier 1930, c’est-à-dire dans le cadre du Plan Young qui détermine soigneusement par quelle méthode les “paiements allemands” et les “transferts allemand” s’effectueront’.12 The same point had been made even earlier, in the 1905 case Muscat Dhows,13 where the Tribunal set up by the Permanent Court of Arbitration had been asked to interpret the treaty term ‘protégés’ in the Act of the Brussels Conference of 1890.14 The Tribunal held that the interpretation must correspond to the intentions of the parties, as well as to ‘principes du droit international tels qu’ils ont été exprimés dans les conventions en vigueur à cette époque, dans la législation nationale en tant qu’elle a obtenu une reconnaissance internationale et dans la pratique du droit des gens’.15 In no way have these insights been expressed only in the diverse jurisprudence of arbitral tribunals, however. The International Court gave expression to much the same rule when it held in Right of Passage that ‘it is a rule of interpretation that a text emanating from a Government must, in principle, be interpreted as producing and intended to produce effects in accordance with existing law and not in violation of it’.16 That over-arching debate is important for the argument which is attempted here but its relevance is primarily as a background to the question of whether a Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331; (1969) 8 ILM 679. M Koskenniemi, ‘Fragmentation of International Law’ (n 1), at [420]–[421]. 9 AD McNair, The Law of Treaties (2nd edn, Oxford University Press, 1961), 466. 10 Georges Pinson (France/United Mexican States) (1928) 5 RIAA 327, 422. 11 M Koskenniemi, ‘Fragmentation of International Law’ (n 1) at [414]. 12 Différend concernant l’accord Tardieu-Jaspard (Belgium/France) (1930) 3 RIAA 1701, 1713. 13 Affaire des boutres de Mascate (France c Grande-Bretagne) (1905) 11 RIAA 83. 14 Declaration of the General Act of the Brussels Conference, 2 July 1890, 173 CTS 188. 15 Affaire des boutres de Mascate (n 13), 93–4. 16 Right of Passage over Indian Territory (Preliminary Objections) [1957] ICJ Rep 125, 142. 7 8

26

Different Regimes, Different Methods of Interpretation?

fragmentation is prevalent in terms of the methods of interpretation applied in the different fields of international law. The proliferation, already in 1930, both of international treaties and international tribunals convinced McNair that our understanding of treaties ‘will be made easier if we free ourselves from the traditional notion that the instrument known as the treaty is governed by a single set of rules, however inadequate, and set ourselves to study the greatly differing legal character of the several kinds of treaties and to frame rules appropriate to the character of each kind’.17 It is difficult to take issue with this proposition if it is taken at face value. McNair’s article has, however, been seen as a call for a fragmented approach to the interpretation of different types of treaty. Thus, for example, Brölmann takes it for granted that different types of treaty ought to be interpreted differently, and explicitly cites McNair’s 1930 article as evidence for it, when she states that ‘not all interpretive rules are the same for all treaties’. She sees the interpretation of treaties constituting international organizations as being different from other types of treaty interpretation, as it to her mind is more of a teleologic approach which focuses on the object and purpose of the instrument.18 Weiler, too, has argued that different rules of treaty interpretation apply to different types of treaty. He sees treaty interpretation as a wide-ranging set of practices; the general rule of interpretation, to his mind, is ‘both descriptively and prescriptively an “unreal” signpost of contemporary treaty interpretation’.19 Andenas has argued that many of the arguments of autonomy or separateness—both regarding the substance of the law and the method applied by different organs of international law—evaporate when international courts and tribunals apply an open method taking account of sources from other jurisdictions.20 It would be a misconstruction to interpret McNair’s by now classic article as saying that different methods of interpretation ought to be applied to different types of treaty. As Elihu Lauterpacht has pointed out, Lord McNair in his article ‘did not draw any conclusions from that classification relevant to the interpretation of such instruments’.21 It is clear enough, as Crawford has observed,22 that it is fruitful to contemplate the different features of different kinds of treaties and even to expect the development 17 AD McNair, ‘The Functions and Differing Legal Character of Treaties’ (1930) 11 BYIL 100, 118; McNair, The Law of Treaties (n 9), 739–54. Also: J Crawford, Brownlie’s Principles of Public International Law (8th edn, Oxford University Press, 2012), 369–70. 18 C Brölmann, ‘Specialized Rules of Treaty Interpretation: International Organizations’ in D Hollis (ed), Oxford Guide to Treaties (Oxford University Press, 2012), 507–12. 19 JHH Weiler, ‘The Interpretation of Treaties—A Re-Examination’ (2010) 21 EJIL 507; JHH Weiler, ‘Prolegomena to a Meso-Theory of Treaty Interpretation at the Turn of the Century’, IILJ International Legal Theory Colloquium: Interpretation and Judgment in International Law (NYU Law School, 14 February 2008), 14. 20 M Andenas, ‘The Centre Reasserting Itself—From Fragmentation to Transformation of International Law’ in M Derlén and J Lindholm (eds), Volume in Honor of Pär Hallström (Iustus, 2012). 21 E Lauterpacht, ‘The Development of the Law of International Organizations by the Decisions of International Tribunals’ (1976) 152 Hague Recueil 381, 415–16. Cf, however, C Brölmann, ‘Specialized Rules of Treaty Interpretation’ (n 18), 507–8. 22 Crawford, Brownlie’s Principles of Public International Law (n 17), 370.

Introduction

27

of specialized rules, such as for example how the effect of war between parties varies according to the type of treaty involved,23 or how the fundamental change of circumstances rule is inapplicable to boundary treaties.24 But when McNair said that the task of deciding treaty disputes would be made easier if ‘we free ourselves from the traditional notion that the instrument known as the treaty is governed by a single set of rules’ and exhorted us to ‘study the greatly differing legal character of the several kinds of treaties and to frame rules appropriate to the character of each kind’25 what he meant, I would argue, was not that different rules of interpretation were ever supposed to enter into the frame. Not only is it difficult to find evidence in McNair’s article that interpretation is what he had in mind when he spoke of ‘a single set of rules’;26 his later writings on the issue—especially the part on interpretation and application of treaties in his 1961 treatise The Law of Treaties27—seem to bear the reading for which this chapter argues. At the time one contemporary commentator saw McNair’s article on the different types of treaty in international law as mainly a plea for the recognition of the special character of law-making treaties, or treaties which bring into existence new international entities such as international organizations.28 This seems to be the better understanding of the purpose of McNair’s classic article. From this it can probably be inferred that rather than arguing that the business of treaty interpretation was a fragmented enterprise, McNair wanted to underline that different types of treaty should be seen as having a very different impact upon general international law. In this sense McNair’s 1930 article ought surely to be seen as a forerunner to his later work on so-called objective regimes, of which McNair was an early advocate. He would go on to argue, in 1957, that as an exception to the rule pacta tertiis nec nocent nec prosunt treaties establishing objective regimes were capable of producing effects erga omnes, and most prominently among the treaties capable of such effects he included treaties which bring into existence new international entities such as international organizations.29 23 See First Report on the Effects of Armed Conflicts on Treaties, 57th Session, A/CN.4/552, 21 April 2005. 24 VCLT Art 62(2). 25 McNair, ‘The Functions and Differing Legal Character of Treaties’ (n 17), 118. 26 In fact McNair nowhere in his article goes into detail about interpretation; the only two instances where he mentions interpretation are when he says that: ‘it is significant that the seed-bed of the traditional rules as to the formation, validity, interpretation, and discharge of treaties which swell the bulk of our text-books, too often written in slavish imitation of their predecessors, was sown at a time when the old conception of a treaty as a compact, a bargain, a Vertrag, was exclusively predominant and the dawn of the new multilateral treaty had not begun’ and ‘we must be on our guard against the assumption that, merely because treaties have borrowed from private law contracts their form and the source of their binding force, all the rules as to formation, validity, interpretation, and discharge of contracts are equally applicable to treaties’: McNair, ‘The Functions and Differing Legal Character of Treaties’ (n 17), 106. 27 McNair, The Law of Treaties (n 9), Chs 19–29. 28 T Gihl, International Legislation: An Essay on Changes in International Law and in International Legal Situations (Oxford University Press, 1937), 49. 29 AD McNair, ‘Treaties Producing Effects Erga Omnes’ in Scritti di diritto internazionale in onore di Tomaso Perassi II (Giuffrè, 1957), 23–36. Also: AA Cançado Trindade, ‘Jus Cogens: The Determination and the Gradual Expansion of Its Material Content in Contemporary International Case-Law’ (2008) 35 Curso 3, 7.

28

Different Regimes, Different Methods of Interpretation?

Thus it can scarcely be correct to base on McNair’s 1930 article the notion that different types of treaty ought to be interpreted differently. We could, however, see it as an early example of the debate about how different treaty regimes to some extent were fragmenting in the sense that different types of treaty regime were already at that time, rather unsurprisingly, manifesting themselves in international law. Both the impression that international law was fragmenting and the proposition that this ought to suggest different interpretive methods would grow in the years to come.30 Brownlie, in 1987, feared the phenomenon of various types of international lawyer losing the sense of their subject-matter within the matrix of rules of general international law. This, to his mind, was to the international legal order ‘a threat at least as serious as any presented by political or cultural divisions’.31 It was (as it still is presently) discussed in the literature whether, or the exact extent to which, fields such as international human rights,32 international humanitarian law,33 environmental law,34 the law of the sea,35 EU law,36 and the law of the WTO37 were self-contained regimes. Perhaps the most extreme expression of the fragmented approach argued for by some was the statement by the International Criminal Tribunal for the Former Yugoslavia in Tadic that in international law ‘every tribunal is a self-contained system (unless otherwise provided)’.38 If we think today that this statement is beyond the pale, we ought perhaps to remember that it represented the very culmination of this type of approach to international law by an international Tribunal, and was thus what made the pendulum 30 See, for some early examples, C Rousseau, ‘De la compatibilité des normes juridiques contradictoires dans l’ordre international’ (1932) 39 RGDIP 133, 150–3; G Scelle, Cours de droit international public (Domat-Montchrestien, 1948), 642; J Combacau, ‘Le droit international: bric-à-brac ou système?’ (1986) 31 Arch de phil du droit 85, 86. 31 I Brownlie, ‘Problems Concerning the Unity of International Law’ in Le droit international à l’ heure de sa codification. Études en l’ honneur de Roberto Ago vol I (Giuffrè, 1987), 160. 32 C Greenwood, ‘Using Human Rights Law in English Courts’ (1998) 114 LQR 523, 525; C Greenwood, ‘Jurisdiction, NATO and the Kosovo Conflict’ in P Capps, M Evans, and S Konstadinidis (eds), Asserting Jurisdiction: International and European Legal Perspectives (Hart, 2003), 166–7; M Fitzmaurice, ‘Interpretation of Human Rights Treaties’ in D Shelton (ed), Handbook in International Human Rights Law (Oxford University Press, 2014); EW Vierdag, ‘Some Remarks about Special Features of Human Rights Treaties’ (1994) 25 NYIL 119. 33 C Greenwood, ‘The Law of War (International Humanitarian Law)’ in MD Evans (ed), International Law (Oxford University Press, 2003), 790–1; A Orakhelashvili, ‘The Interaction between Human Rights and Humanitarian Law: Fragmentation, Conflict, Parallelism, or Convergence?’ (2008) 19 EJIL 161; V Gowlland-Debbas, ‘Issues Arising from the Interplay between Different Areas of International Law’ (2010) 63 CLP 597, 612–30. 34 M Fitzmaurice, ‘International Environmental Law as a Special Field’ (1994) 25 NYIL 181. 35 S Oda, ‘Dispute Settlement Prospects in the Law of the Sea’ (1995) 44 ICLQ 848; RR Churchill and AV Lowe, The Law of the Sea (3rd edn, Manchester University Press, 1999), 461. 36 Berman, ‘Community Law and International Law’ (n 2). 37 PJ Kuyper, ‘The Law of GATT as a Special Field of International Law’ (1994) 25 NYIL 227; J Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (Cambridge University Press, 2003); J Neumann, Die Koordination des WTO-Rechts mit anderen völkerrechtlichen Ordnungen: Konflikte des materiellen Rechts und Konkurrenzen der Streitbeilegung (Duncker and Humblot, 2002). 38 Prosecutor v Tadic (1995) 105 ILR 419, 458 (Jurisdiction). See the criticism in Crawford, Brownlie’s Principles of International Law (n 17), 41.

Introduction

29

begin to swing back. Swing back it certainly did. President Jennings, in the same year as Tadic was handed down, identified rather resoundingly what he saw as ‘the tendency of particular tribunals to regard themselves as different, as separate little empires which must as far as possible be augmented’.39 This happy coinage, by a President of the International Court of Justice, was later reproduced, both in the jurisprudence of international tribunals and in the literature, in order to temper what was seen by some as especially human rights tribunals being out of line. Thus for example Greenwood, in an analysis of the interpretation given by the Grand Chamber of the European Court of Human Rights of Article 1 of the European Convention in Bankovic,40 observed with approval the meticulous care which the European Court showed in ensuring that it took full account of other relevant rules of international law in establishing the terms of ‘jurisdiction’ in Article 1. This included the citation of a long list of juristic writings on international law and other materials from outside the specialist literature of human rights, and was in his view a welcome recognition on the European Court’s part that international human rights law and agreements are themselves part of international law as a whole: ‘The Court did not succumb to what Sir Robert Jennings has described as “the tendency of particular tribunals to regard themselves as different, as separate little empires which must as far as possible be augmented” ’.41 Greenwood had, in a criticism of how some writers in the field of human rights disregard the principles of general international law, made the point that international human rights law is part of international law and should be seen as such. In order to understand it, he continued, it is necessary to understand the principles of treaty interpretation and application as well as the approach to sources which form an integral part of international law: All too often, however, human rights lawyers—and sometimes human rights tribunals— fail to do this and treat human rights conventions and the jurisprudence which has grown up around them as though they constitute self-contained legal regimes.42

These warnings did not go unheeded. Not least human rights tribunals were alive to this type of criticism from general international lawyers, but these insights were taken seriously in all fields of international law. Judges Pellonpää and Bratza, in the Grand Chamber ruling in Al-Adsani v United Kingdom, where the European Court was at pains not to go against the grain of what was seen as the demands of international customary law, ended their concurring opinion by quoting Jennings, ‘who some years ago expressed concern about “the tendency of particular tribunals to regard themselves as different, as separate little empires which must as far as possible be augmented” ’.43 They stated in closing that they believed that in this case 39 R Jennings, ‘The Proliferation of Adjudicatory Bodies: Dangers and Possible Answers’ in [1995] ASIL Bull no 92, 5–6; R Jennings, ‘The Judiciary, International and National, and the Development of International Law’ (1996) 45 ICLQ 1, 5–6. 40 Bankovic v Belgium (2001) 123 ILR 94. Cf Ch 3.3.14. 41 Greenwood, ‘Jurisdiction, NATO and the Kosovo Conflict’ (n 32), 166–7. 42 Greenwood, ‘Human Rights Law’ (n 32), 525. 43 Al-Adsani v United Kingdom App No 35763/97, judgment [GC] 21 November 2001 (internal references omitted).

30

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the European Court had avoided the kind of development of which Jennings had warned. It is nonetheless true that some international courts and tribunals have, at times, insisted on regarding the treaty which they are interpreting as being somehow special. The Tribunal in Case Concerning the Air Services Agreement of 27 March 1946 thus took into account, in its interpretation of the treaty, ‘the overall context of international civil aviation in which the Agreement was negotiated’.44 This seems mostly to be the case with treaty bodies whose function it is to be the authoritative interpreter of a particular treaty, such as the European Court of Justice,45 and the European Court of Human Rights.46 Perhaps the most striking example is Mamatkulov and Askarov,47 where the Grand Chamber of the European Court of Human Rights held that, whilst on the one hand ‘the Convention must be interpreted in the light of the rules set out in the Vienna Convention of 23 May 1969 on the Law of Treaties’, the Court must do so ‘taking into account the special nature of the Convention as an instrument of human rights protection (see Golder v United Kingdom, judgment of 21 February 1975, Series A no 18, p. 14, § 29)’.48 It is, on the face of it, difficult to imagine a clearer statement on the matter. Nonetheless, as is evident from the reference in Mamatkulov and Askarov to Golder above, the European Court based this statement on what it had said in paragraph 29 of Golder. There the Court said that it was prepared to consider that it should be guided by the VCLT,49 although at the time that convention had not entered into force, that for the purposes of the interpretation of the European Convention50 account should be taken of Articles 31–33 of the VCLT, but that it was also bound by Article 5 of the VCLT: for the interpretation of the European Convention account is to be taken of those Articles subject, where appropriate to ‘any relevant rules of the organization’—the Council of Europe—within which it has been adopted (Article 5 of the Vienna Convention).51

44 Air Services Agreement of 27 March 1946 (United States v France) (1978) 54 ILR 303, 326 at [44]. Also: P Daillier, M Forteau, and A Pellet, Droit international public (8th edn, LGDJ, 2009), 290. 45 See P Palchetti, ‘Halfway between Fragmentation and Convergence: The Role of the Rules of the Organization in the Interpretation of Constituent Treaties’ in M Andenas and E Bjorge (eds), A Farewell to Fragmentation: Reassertion and Convergence in International Law (Cambridge University Press, 2015). 46 R Bernhardt, ‘Evolutive Treaty Interpretation—Especially of the European Convention on Human Rights’ (1999) 42 GYIL 11; G Letsas, ‘Strasbourg’s Interpretive Ethic: Lessons for the International Lawyer’ (2010) 21 EJIL 509. 47 Mamatkulov and Askarov v Turkey (2005) 134 ILR 230. See ILC Draft Conclusions on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties 2013, ILC Report 2013 UN Doc A/68/10, 19. 48 Mamatkulov and Askarov v Turkey (n 47), 267 at [111] (my emphasis). Also: Effect of Reservations Opinion (1982) ILR 67 559, 567–68; Restrictions to the Death Penalty (Advisory Opinion OC–3/83) (1983) 70 ILR 449, 466. 49 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331; (1969) 8 ILM 679. 50 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 22. 51 Golder v United Kingdom (1975) 57 ILR 200, 213–14 at [29].

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In other words, at any rate in the view of the European Court itself, when the Court says that the European Convention must be interpreted in accordance with Articles 31–33 but also that the Court must do so ‘taking into account the special nature of the Convention’,52 that is nothing else than applying the scheme of the VCLT, as set out in Article 5. In a sense, then, the ‘special nature’ approach of the European Court follows from the Vienna rules themselves. This rhymes well with the approach taken in the VCLT where, apart from Article 5, no mention is made of this type of distinction in the principles of treaty interpretation. The ILC and later the VCLT saw the law of treaties as essentially a unity.53 More recently, the ILC has debated whether it would be appropriate to refer ‘to the “nature” of the treaty as a factor which would typically be relevant to determining whether more or less weight should be given to certain means of interpretation’.54 The ILC ultimately decided to leave the question open and for the time being to make no reference to the nature of the treaty. Of interest here, however, is really only the extent to which these debates have influenced the question of whether different types of interpretation apply to different types of treaty. As we shall see in the next sections this has very much been the case. The approach taken by international tribunals to these two discrete but closely intertwined issues, however, commands the conclusion that not only have the fears of fragmentation in terms of ‘self-contained regimes’ been exaggerated; the same is the case with the proposition that the law of treaties is fragmented.

2.2 Constitutional Treaties, Human Rights Treaties, ‘Ordinary Treaties’ The theory is old according to which treaties ought to be divided into subcategories as a function of their contents, and that those subcategories, by reason of their different nature, ought to be interpreted differently. As was foreshadowed above, McNair in 1930 gave expression to the misgiving that ‘inadequate attention has been given by students of International Law to the widely differing functions and legal character under the term “treaty” ’.55 He felt that the law of treaties would be in a more advanced state if more writers on the subject would study these essential differences and endeavour to provide for them instead of attempting to lay down rules applicable to treaties in general.56 In this vein he suggested a taxonomy consisting Mamatkulov and Askarov v Turkey (n 47), 267 at [111] (my emphasis). Crawford, Brownlie’s Principles of Public International Law (n 17), 370. ILC Draft Conclusions on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties 2013, ILC Report 2013 UN Doc A/68/10, 19–20. 55 McNair, ‘The Functions and Differing Legal Character of Treaties’ (n 17), 100. Also: Gihl, International Legislation (n 28), 46–53; Brölmann, ‘Specialized Rules of Treaty Interpretation’ (n 18), 507; J Klabbers, An Introduction to International Institutional Law (2nd edn, Cambridge University Press, 2009), 55; E Lauterpacht, ‘The Development of the Law of International Organizartions’ (n 21); CF Amerasinghe, Principles of the Institutional Law of International Organizations (2nd edn, Cambridge University Press, 2005), 24–65. 56 McNair, ‘The Functions and Differing Legal Character of Treaties’ (n 17), 100. 52

53

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of four types of treaty, all of which possessed different characteristics and must therefore be regulated by different rules of interpretation. The types of treaty he suggested were, first, treaties having the character of conveyances (treaties whereby one state creates in favour of another, or transfers to another, real rights); secondly, treaties having the character of contracts (a treaty as a compact, a bargain); thirdly, law-making treaties (legislative treaties); and fourthly, treaties akin to charters of incorporation (treaties created by international bodies, creating at the same time more than mere contractual relationships and more than mere legislative rules). Today this distinction, built to a very large degree upon a common law approach, may seem somewhat dated. Perhaps a more sophisticated taxonomy as to not only different types of treaty but also different styles of treaty interpretation is the one advanced by Kolb.57 It is not, according to Kolb, only because of the particular nature of human rights treaties,58 constitutional treaties,59 treaties concerned with the protection of minorities,60 treaties concerned with international mandates,61 and treaties concerned with the law of international waterways62 that they have, in his view, been interpreted differently. In his understanding what is important is not whether the treaty belongs to one (or more) of these categories or not. The pertinent question is what is the 57 R Kolb, Interprétation et création du droit international. Esquisse d’une herméneutique juridique moderne pour le droit international public (Bruylant, 2006), 202–3. 58 Tyrer v United Kingdom (1978) 58 ILR 339, 353; Interpretation of the Inter-American Declaration of Human Rights and Duties (Advisory Opinion), Inter-American Court of Human Rights (1989) 96 ILR 416, 426 at [37]. 59 Delimitation of Polish–Czechoslovak Frontier (Question of Jaworzina) (1923) PCIJ Series B No 8, 37; Interpretation of the Greco–Turkish Agreement of December 1, 1926 (1928) PCIJ Series B No 16, 15; German Settlers in Poland (1923) PCIJ Series B, No 6, 19; Acquisition of Polish Nationality (1923) PCIJ Series B, No 7, 17; Delimitation of the Serbo–Albanian Frontier (Monastery of Saint-Naoum) (1924) Series B No 9, 6; Competence of the International Labour Organisation to Regulate, Incidentally, the Personal Work of the Employer (1926) PCIJ Series B No 13, 6; Jurisdiction of the European Commission of the Danube (1927) PCIJ Series B No 14, 6; Electricity Company of Sofia and Bulgaria (Belgium v Bulgaria) (1939) PCIJ Rep Series A/B No 77, 64; Conditions for Admission of a State Membership in the United Nations (Article 4 of the Charter) [1948] ICJ Rep 62; Reparations for Injuries Suffered in the Service of the United Nations Advisory Opinion [1949] ICJ Rep 174; Effect of Award Made by the United Nations Administrative Tribunal [1954] ICJ Rep 47; Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter) (Advisory Opinion) [1962] ICJ Rep 151; Judgment No 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development (Advisory Opinion) [2012] ICJ Rep 10. 60 Rights of Minorities in Upper Silesia (Minority Schools) (1928) PCIJ Series A No 15, 4, 31–3; German Settlers in Poland (1923) PCIJ Series B, No 6, 19; Acquisition of Polish Nationality (1923) PCIJ Series B No 7, 17; Greco–Bulgarian Communities (1930) PCIJ Series B No 17, 19–23; Minority Schools in Albania (1935) PCIJ Series A/B No 64, 14. 61 Status of South-West Africa [1950] ICJ Rep 132; South-West Africa—Voting Procedure (Advisory Opinion) [1955] ICJ Rep 67; Admissibility of Hearings of Petitioners by the Committee on South West Africa (Advisory Opinion) [1956] ICJ Rep 23; South-West Africa Cases (Ethiopia and Liberia v South Africa) (Preliminary Objections) [1962] ICJ Rep 319; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16. 62 Territorial Jurisdiction of the International Commission of the River Oder (1929) PCIJ Series No 23, 5; Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) (Judgment) [2009] ICJ Rep 213; Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) [2010] ICJ Rep 14.

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principle according to which the Tribunal has been acting when, if this view is to be believed, it has interpreted treaties according to different methods in these cases? Kolb has suggested the following reply: the more a treaty is seen to protect what he refers to as utilitas singulorum, the more it will tend to be interpreted strictly and within the strict limits of the text, and the more a treaty protects an international utilitas publica, the more it will tend to be interpreted effectively, evolutionarily, and teleologically.63 It is, in his view, the degree of ‘internationalization’ of the treaty matter that is decisive. While to some degree all treaties bear shared interests, there are synallagmatic treaties according to which the parties keep their interests, which will be more or less contrary to one another, depending on the case.64 It seems, however, that the distinction that has had the most success in the literature is a simpler one. This distinction discriminates only between treaties whose essential juridical character is that of the contract and treaties whose essential juridical character is that of law-making or legislation. This distinction has been known in the French-language literature as that between traités-lois (law-making treaties) and traités-contrats (contractual treaties),65 and in the German-language literature, from whence it originates, as between Vereinbarung and Vertrag.66 Traditionally the term traités-lois was used of the treaties which set out the first conventional rules of international society. As international society began by degrees to increase in complexity and density from circa 1815, treaties began to perform a social function closely analogous to legislation in national legal systems. The Vienna Règlement on diplomatic representation of 19 March 1815 was thus a striking example, and one could say the same of the whole of the Congress of Vienna, as it was nothing if not legislative in character.67 The term traités-contrats was used of treaties the content of which was of a contractual or synallagmatic or reciprocal kind. It was in other words a material, as opposed to formal, concept. For the purposes of interpretation, it was felt that traités-contrats called for a restrictive style of interpretation, while traités-lois were more amenable to styles of interpretation which were purposive and constitutional.68 Kolb, Interprétation et création du droit international (n 57), 202–3. JHH Weiler, ‘The Geology of International Law—Governance, Democracy and Legitimacy’ (2005) 64 ZaöRV 547, 556 expresses the same idea, using instead of Kolb’s term ‘common assets’: ‘Materially, the hallmark of Community may, in my view, be found in the appropriation or definition of common assets. The common assets could be material such as the deep sea bed of the high sea, or territorial such as certain areas of space. They can be functional such as certain aspects of collective security and they can even be spiritual: Internationally defined Human Rights or ecological norms represent common spiritual assets where States can no more assert their exclusive sovereignty, even within their territory, than they could over areas of space which extend above their air-space.’ Also: A Clapham, Brierly’s Law of Nations: An Introduction to the Role of International Law in International Relations (7th edn, Oxford University Press, 2012), 112–14. 65 P Reuter, Introduction to the Law of Treaties (J Mico and P Haggenmacher tr, Paul Kegan International, 1995), 26–7. Also, on the principle of synallagmaticity: R Cassin, De l’exception tirée de l’ inexécution dans les rapports synallagmatiques: exception non adimpleti contractus (Sirey, 1914), i–vi. 66 H Triepel, Völkerrecht und Landesrecht (Verlag von CL Hirschfeld, 1899), 49–62; H Lauterpacht, Private Law Sources and Analogies in International Law (Longman, 1927) at [70]. 67 P Allott, ‘The Concept of International Law’ (1999) 10 EJIL 31, 43. 68 C Rousseau, Droit international public (5th edn, Dalloz, 1970), 292–305. 63

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The distinction between the two seems to be more a source of confusion than of assistance. This is the case not least because all treaties are contractual as between their parties. Even in Reservations to the Convention on Genocide, where the treaty to be interpreted was the Convention on the Prevention and Punishment of the Crime of Genocide,69 the International Court stated that the concept of pacta sunt servanda in international law was ‘directly inspired by the notion of contract’,70 the notion of contracts being ‘of undisputed value as a principle’ from which to analogize even in the interpretation of treaties such as the Genocide Convention.71 The distinction between law and contract in modern international law has, according to Reuter, lost such obvious character as it might have possessed in the past: The great collective instruments of modern economic society—such as collective agreements regulating the general conditions of an industrial sector, trade union or professional regulations, and large corporations—are no longer contracts in the original sense. Major unrestricted multilateral treaties are more like the by-laws of a corporation which is entered or left regardless of other parties than a statute in the public law sense.72

Reuter concludes by saying that it is in reality very difficult to keep such distinctions according to which treaties are to be discriminated by reason of their subject matter. This is not least because the content of treaties is in fact not homogenous; rather a treaty may contain provisions which are very different in character. The over 400 articles of the Treaty of Versailles of 1919, for example, regulated matters as variegated as constitutive charters of international organizations, questions of territorial status as well as several other types of issue. This is illustrated by the many and varied cases on the Versailles Treaty handed down by the Permanent Court in the 1920s.73 In the face of such realities, distinctions such as the one between traités-lois and traités-contrats simply break down. It would therefore, Reuter concludes, be wrong to conclude that the principles of interpretation vary according to whether one is dealing with a bilateral or multilateral treaty, with traités-lois or traités-contrats; the principles necessarily remain the same.74 This seems to rhyme well with the approach taken in the Vienna Convention, where no mention is made of this type of distinction in the principles of treaty

69 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277. 70 Reservations to the Convention on Genocide (Advisory Opinion) [1951] ICJ Rep 15, 21. Also: G Fitzmaurice, ‘Some Problems Regarding the Formal Sources of International Law’ in Symbolae Verzijl: Présentées au Professeur JHW Verzijl à l’occasion de son LXX-ième anniversaire (Martinus Nijhoff, 1958), 157. 71 Reservations to the Convention on Genocide (n 70), 21. 72 Reuter, Introduction to the Law of Treaties (n 65), 27. 73 Permanent Court in cases bearing on the Versailles Treaty in, for example Acquisition of Polish Nationality (1923) PCIJ Series B, No 7, 17; German Settlers in Poland (1923) PCIJ Series B, No 6, 19; Case of the SS ‘Wimbledon’ (1923) PCIJ Series A No 1, 15, 25; Polish Postal Service in Danzig (1925) PCIJ Series B No 11, 6, 39; Rights of Minorities in Upper Silesia (Minority Schools) (1928) PCIJ Series A No 15, 4, 31–3. 74 Reuter, Introduction to the Law of Treaties (n 65), 25–30.

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interpretation. As was observed above, the ILC and later the VCLT saw the law of treaties as essentially a unity.75 It is nonetheless clear that the distinction between statutory and contractual treaties, or cognate distinctions, continues to find an echo both in doctrine and in the practice of international tribunals. In the modern literature, however, the two types of treaty that are the most contrasted with ‘ordinary’ or contractual treaties are human rights treaties and constitutional or constitutive treaties.76 If we compare to the two-way split between ‘traités-contrats’ and ‘traités-lois’ above we could say that the latter category has been split into two elements: human rights treaties and constitutional treaties. The analysis now turns to these three categories in order to see whether it is correct to say that they are interpreted according to special methods.

2.2.1 Human rights treaties As was foreshadowed in the introduction, Bernhardt has stated that since the object and purpose of human rights treaties are different from those of other treaties, the interpretation of human rights treaties must be different from that of other types of treaty: a much stronger accent must in this type of treaty interpretation, so goes the argument, be placed on the object and purpose than is otherwise usual.77 As the object and purpose of human rights treaties are different from those of many other treaties, the interpretation of human rights treaties must in the final analysis be different from that of other types of treaty. The arbitral Tribunal in La Bretagne, in perhaps the same vein, stated that ‘the emphasis placed by any interpreter on the purpose of a treaty is extremely variable and must depend to a large extent on the nature of the treaty in question’.78 If, however, the context in which the provisions of a treaty are located and a full application of the principles of treaty interpretation lead to the conclusion that a particular approach or doctrine is the right one to use then that is quite consistent with the rules of the Vienna Convention.79 A more apt way of putting it, however, might be that the object and purpose of a treaty is as important in any type of treaty as it is in a human rights treaty. It may be worth pointing out that when an international Tribunal, in conformity with Article 31(1) of the Vienna Convention, takes into consideration the object and

Crawford, Brownlie’s Principles of Public International Law (n 17), 370. Letsas, ‘Strasbourg’s Interpretive Ethic’ (n 46); R Bernhardt, ‘Thoughts on the Interpretation of Human Rights Treaties’ in F Matscher and H Petzold (eds), Protecting Human Rights: The European Dimension. Studies in Honour of Gérard J Wiarda (Carl Heymann, 1988); Bernhardt, ‘Evolutive Treaty Interpretation’ (n 46); Brölmann, ‘Specialized Rules of Treaty Interpretation’ (n 18); E Lauterpacht, ‘The Development of the Law of International Organizations’ (n 21); Amerasinghe, Principles of the Institutional Law of International Organizations (n 55), 24–65. 77 Bernhardt, ‘Interpretation of Human Rights Treaties’ (n 76), 65. 78 Dispute concerning Filleting within the Gulf of St Lawrence (‘La Bretagne’) (Canada/France) (1986) 82 ILR 591, 615. 79 R Gardiner, ‘The Vienna Convention Rules on Treaty Interpretation’ in D Hollis (ed), The Oxford Guide to Treaties (Oxford University Press, 2012). Cf G Letsas, ‘Strasbourg’s Interpretive Ethic’ (n 46). 75 76

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purpose of a treaty then this factor is one among others taken into account in order to establish the common intention of the parties.80 In Chapter 3 it will be shown that international tribunals in general go far in their reliance upon the objects and purpose of treaties; this is not something that is more prevalent among human rights bodies.81 It must surely be wrong, therefore, to say that because of the importance of the object and purpose of human rights treaties this particular element of interpretation should take on greater importance when one is interpreting human rights treaties than when one is interpreting other types of treaty. If one were to take the position of Bernhardt on this question—and say that because the object and purpose of human rights treaties is different from those of other treaties the interpretation of human rights treaties must be different from that of other types of treaty82—then one would be comparing the object and purpose of different treaties, rather than comparing and weighing different factors of interpretation against one another. The correct comparator would not be the object and purpose of other types of treaty but the other factors of interpretation in every treaty. In this regard it is clear that the object and purpose of all treaties, in principle, are of equal importance—in relation to the other factors of interpretation which have a bearing on the treaty in issue. It would be wrong to say that because the safeguarding of human dignity is so important (which it is not the point here to say that it is not), objects and purpose as an interpretive factor ought to be more important in the interpretation of human rights treaties than that factor ought to be in tax treaties. It is thus difficult to agree with this proposition in normative terms. In descriptive terms the proposition has not been followed either: the jurisprudence of international courts and tribunals show that the object and purpose is, together with the intentions of the parties, the prevailing elements for interpretation in any type of treaty.83 80 Award in the Arbitration regarding the Iron Rhine (‘Ijzeren Rijn’) (Belgium v Netherlands) (2005) 27 RIAA 35, 65 (‘The object and purpose of a treaty, taken together with the intentions of the parties, are the prevailing elements for interpretation’); Separate Opinion of Judge Fitzmaurice in National Union of Belgian Police (1980) 57 ILR 262, 293 (‘The object and purpose of a treaty are not something that exist in abstracto: they follow from and are closely bound up with the intentions of the parties’). 81 Rights of Minorities in Upper Silesia (Minority Schools) (1928) PCIJ Series A No 15, 33; Reservations to the Convention on Genocide (Advisory Opinion) [1951] ICJ Rep 15, 23. Also: Ambatielos case (jurisdiction) (Judgment) [1952] ICJ Rep 28, 45; Case of Certain Norwegian Loans (Judgment) [1957] ICJ Rep 9, 23, 27; Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization (Advisory Opinion) [1960] ICJ Rep 150, 170–1; Case concerning US Diplomatic and Consular Staff in Tehran (USA v Iran) [1980] ICJ Rep 3 at [54]; Military and Paramilitary Activities in and against Nicaragua [1986] ICJ Rep 14 at [273]; Oil Platforms (Islamic Republic of Iran v United States of America) (Preliminary Objection) (Judgment) [1996] ICJ Rep 803, 820 at [52]; LaGrand (Germany v United States of America) (Judgment) [2001] ICJ Rep 466, 501–3 at [99]–[104]; Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Judgment) [2012] ICJ Rep 422, 451 at [74] and 454 at [86]. 82 Bernhardt, ‘Interpretation of Human Rights Treaties’ (n 76), 65. 83 Iron Rhine (Belgium v Netherlands) (n 80), 65; Territorial Dispute between Libya and Chad [1994] ICJ Rep 6, 25–6 at [52]; LaGrand (Germany v United States of America) (Judgment) [2001] ICJ Rep 466, 501–3 at [99]–[104]; Oil Platforms (Islamic Republic of Iran v United States of America) (Preliminary Objection) (Judgment) [1996] ICJ Rep 803, 820 at [52]; South-West Africa Cases (Ethiopia and Liberia v South Africa) (Preliminary Objection) [1962] ICJ Rep 319, 335–6; Case of Certain Norwegian Loans (Judgment) [1957] ICJ Rep 9, 23 and 27; Reservations to the Convention

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2.2.2 Constitutional or constitutive treaties The International Court in Nuclear Weapons (Advisory Opinion) stated that: ‘From a formal standpoint, the constituent instruments of international organizations are multilateral treaties, to which the well-established rules of treaty interpretation apply’.84 As we shall see, some authors have expended much energy on downplaying this point, choosing instead to underline that such instruments have ‘certain special characteristics’85 as well as the possible ramifications for treaty interpretations in statements by the International Court, also in Nuclear Weapons (Advisory Opinion), such as: The constituent instruments are also treaties of a particular character; their object is to create new subjects of law endowed with a certain autonomy, to which the parties entrust the task of realizing common goals. Such treaties can raise specific problems of interpretation, owing, inter alia, to their character which is conventional and at the same time institutional; the very nature of the organization created, the objectives which have been assigned to it by its founders, the imperatives associated with the effective performance of its functions, as well as its own practice, are all elements which may deserve special attention when the time comes to interpret these constituent treaties.86

Thus Elihu Lauterpacht in a study of the interpretation of constitutive treaties concluded that this type of treaty must be interpreted differently from regular treaties. He held that the reliance was greater in this type of interpretation on the objects and purposes of the treaty than in ordinary types of treaty, and that the intentions of the parties were rejected as a controlling element in the interpretation.87 Akande has stated that the UN Charter88 is among the type of treaty which ‘must be regarded as living instruments and be interpreted in an evolutionary manner, permitting the organization to fulfil its purposes in changing circumstances’.89 Relying for his conclusions particularly upon analyses of Reparation for Injuries90 and Namibia,91 Akande concludes that the interpretation of constitutional treaties is by its nature

on Genocide (Advisory Opinion) [1951] ICJ Rep 15, 23; M Sørensen, Les sources du droit international: Étude sur la jurisprudence de la Cour permanente de justice internationale (Einar Munksgaard, 1946), 230; R Higgins, ‘Time and the Law: International Perspectives on an Old Problem’ (1997) 46 ICLQ 501, 519. 84 Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Request by WHO) (Advisory Opinion) [1996] ICJ Rep 66, 74–5 at [19]. 85 Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter) (Advisory Opinion) [1962] ICJ Rep 151, 157. 86 Legality of the Use by a State of Nuclear Weapons in Armed Conflict (n 84), 74–5 at [19]. 87 E Lauterpacht, ‘The Development of the Law of International Organizations’ (n 21), 420. 88 Charter of the United Nations, 26 June 1945, 892 UNTS 119. 89 D Akande, ‘International Organizations’ in MD Evans, International Law (4th edn, Oxford University Press, 2014), 259. 90 Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174, 179. 91 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) [1971] ICJ Rep 16, 21–2 at [20]–[22].

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different from interpretation of regular treaties.92 Other authors writing on the topic have concluded similarly.93 The same conclusions have been drawn with respect to the European Union. Weiler, in his analysis of ERTA,94 drew a line between on the one hand what he saw as the traditional approach of the law of treaties and on the other the approach of the European Court of Justice: the critical point was the willingness of the Court to sidestep the presumptive rule of interpretation typical in international law, that treaties must be interpreted in a manner that minimizes encroachment on state sovereignty. The Court favored a teleological, purposive rule drawn from the book of constitutional interpretation.95

Other leading authors have taken the same approach with respect to the European Union, though perhaps in an even more balanced way. Klabbers concludes in his analysis of Van Gend and Loos96 and Costa v ENEL,97 where the Court of Justice established that the European Community was to be regarded as a new and unique legal order (directly effective in the law of the member states and enjoying superiority vis-à-vis the law of the member states) that in EU law ‘interpretation may be a little more teleological than with regular treaties’.98 These conclusions, even the more balanced one reached by Klabbers, seem to be open to question. We may begin by ascertaining, as former Advocate General Tesauro has done, that it would be wrong to see the approach of the European Court of Justice as wholly out of touch with the general rule of interpretation, or as much more teleologic than that which follows from that approach or the approach traditionally taken by the Permanent or International Court.99 Furthermore it must be true, as Gardiner has pointed out, that absence of reference to particular elements of the Vienna rules does not necessarily mean that they are not being applied.100 In the Court’s first Opinion on the compatibility with the Treaty on the draft agreement establishing a European Economic area (EEA) the Court cited Article 31 of the VCLT and showed that its approach in this case was in line with the general rule of interpretation: The fact that the provisions of the agreement and the corresponding Community provisions are identically worded does not mean that they must necessarily be interpreted identically. An international treaty is to be interpreted not only on the basis of its wording, but

Akande, ‘International Organizations’ (n 89), 259–60. See Brölmann, ‘Specialized Rules of Treaty Interpretation’ (n 18); Klabbers, International Institutional Law (n 55), 87–90; Amerasinghe, Principles of the Institutional Law of International Organizations (n 55), 24–65. 94 C–22/70 Commission of the European Communities v Council of the European Communities [1971] ECR 263. 95 JHH Weiler, ‘The Transformation of Europe’ (1991) 100 YLJ 2403, 2416. Also: HP Ipsen, Europäsiches Gemeinschaftsrecht (JCB Mohr, 1972), 131–4. 96 C–26/62 Van Gend and Loos v Nederlanse Administatie der Belastingen [1963] ECR 1. 97 C–6/64 Flaminio Costa v ENEL [1964] ECR 585. 98 Klabbers, International Institutional Law (n 55), 87–8. 99 G Tesauro, Diritto comunitario (3rd edn, CEDAM, 2003), 90–1. Also: Gardiner, Treaty Interpretation (n 3), 120–5; Crawford, Brownlie’s Principles of Public International Law (n 17), 368. 100 Gardiner, ‘Vienna Convention Rules on Treaty Interpretation’ (n 79), 494. 92 93

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also in the light of its objectives. Article 31 of the Vienna Convention of 23 May 1969 on the law of treaties stipulates in this respect that a treaty is to be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose.101

Dupuy has seen this type of recourse to, and explicit citation of, the VCLT rules on treaty interpretation as an express manifestation by international tribunals of their attachment to general international law and to distance themselves by the same token from the thesis according to which one ought to see such systems as being self-contained and owe their authority to their own autonomy only.102 In Van Gend and Loos103 the European Court of Justice held that it must consider the ‘spirit, the general scheme and the wording of’ the provisions under consideration. Berman has said that the European Court of Justice, in keeping with this dictum, has shied away from tying itself down to the intricacies of a complex or hierarchical system of interpretive norms; it prefers instead to keep its hand free to find the proper interpretive approach to the problem before it. He continues to say that in this approach the European Court seems remarkably similar to the International Court of Justice.104 This must be the correct view of the jurisprudence of the European Court of Justice as compared to the ‘general’ law of treaties. Postulates as to the specialness of the approach taken by the European Court of Justice are more impressive at a distance than on close examination.105 This is not least so as in many cases the European Court of Justice has felt itself bound to a very large degree by the treaty text, and explicitly shied away from adopting an interpretation which would conform to the idea that the interpretations of the European Court of Justice are always teleologic.106 The rules laid down by the treaties are on the whole very broad, such as Article 63 TFEU,107 which provides that ‘all restrictions shall be prohibited’. This has required the European Court to take an approach which focuses more openly upon teleology than other tribunals, including the European Court of Human Rights.108 Perhaps the closest thing to a conclusion one can reach in this regard is to extend to interpretive self-containedness that 101 Opinion 1/91 [1991] ECR I–6079 at [14]. Also: Metalsa [1993] ECR I–3751 at [10]; C–416/96 El-Yassini v Secretary of State [1999] ECR I–01209 at [47]; Jany v Staatssecretaris van Justitie [2001] ECR I–8615 at [35]; C–386/08 Brita GmbH v Hauptzollamt Hamburg Hafen, judgment of 25 February 2010 at [41]–[43]. 102 JM Dupuy and Y Kerbrat, Droit international public (10th edn, Dalloz, 2010), 351. 103 C–26/62 Van Gend and Loos v Nederlanse Administatie der Belastingen [1963] ECR 1, 12. Also: C–283/81 CILFIT v Ministry of Health [1982] ECR 3415 at [17]–[20]. 104 Berman, ‘Community Law and International Law’ (n 2), 269. 105 See A Arnull, The European Union and its Court of Justice (2nd edn, Oxford University Press, 2006), 607–21; G Slynn, ‘They Call It “Teleological”’ (1992) 7 Denning LJ 225. Also: Buchanan v Babco [1977] 2 WLR 107, 112 (Lord Denning). 106 C–152/84 Marshall v Southampton and South-West Hampshire Area Health Authority [1986] ECR 723; C–91/92 Faccini Dori v Recreb [1994] ECR I–3325; C–192/94 El Corte Inglés v Blázquez Rivero [1996] ECR I–1281; C–59/85 Netherlands v Reed [1986] ECR 1283. 107 Treaty on the Functioning of the European Union (former Treaty of Rome; renamed by the Treaty of Lisbon), 25 March 1957, OJEU C 83/47. 108 See generally P Craig, ‘EU Accession to the ECHR: Competence, Procedure and Substance’ (2013) 36 FILJ 1114, 1149–51.

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which Crawford has said about self-contained regimes in general: there are hardly any entirely self-contained regimes at all, with the European Union as the only possible candidate.109 It seems pertinent to conclude on this point by taking a step back. A useful perspective was provided by Hambro, who took the view that the interpretation of constitutive multilateral treaties, such as the UN Charter,110 plainly followed the same approach as other types of treaty interpretation.111 He said of the approach to the interpretation of different types of treaty that: Rights originating from a contract may be divided, inter alia, into personal rights and real rights but, whether personal or real, such rights can never embrace anything not included in the common intention of the parties. A treaty or convention may create an international institution or it may define the status of a territory but its meaning and effect depend primarily on the intention of the parties thereto. The rule may therefore be stated to be that the existence, the measure, and the meaning of treaty rights and obligations are determined in accordance with the common intention of the parties to the instrument in question and, in determining this common intention, the Court invokes the aid of the accepted rules of construction.112

While, in Hambro’s view, the interpretation of multilateral treaties gives rise to even more complicated questions than the interpretation of bilateral treaties, the same method applied to the former as to the latter: the establishment of what he called the objective intention of the parties, an imputed intention, ‘because it may often be very difficult indeed to find any common purpose for the particular stipulation in question’.113

2.2.3 ‘Ordinary treaties’ Weiler contrasts the interpretation of the Community Treaties with that which he terms ‘the presumptive rule of interpretation typical in international law, that treaties must be interpreted in a manner that minimizes encroachment on state sovereignty’,114 the rule of in dubio mitius.115 The notion that treaties must be interpreted J Crawford, International Law as an Open System: Selected Essays (Cameron May, 2002), 37. Charter of the United Nations, 26 June 1945, 892 UNTS 119. 111 E Hambro, ‘The Interpretation of Multilateral Treaties by the International Court of Justice’ (1953) 39 TSG 235, 235–7; E Hambro, LM Goodrich, and AP Simons, Charter of the United Nations: Commentary and Documents (3rd edn, Columbia University Press, 1969), 13. Also: E Hambro, The Case Law of the International Court: A Repertoire of the Judgments, Advisory Opinions and Orders of the Permanent Court of International Justice and of the International Court of Justice (AS Sijthoff, 1958), 15 (where Hambro analyses Reservations to the Convention on Genocide Advisory Opinion [1951] ICJ Rep 15, 23, stating that the ICJ applied nothing else than the ordinary method of establishing the will of the parties: ‘The origins and character of that Convention, the objects pursued by the General Assembly and the contracting parties, the relations which exist between those provisions and these objects, furnish elements of interpretation of the will of the General 112 Assembly and the parties’). Hambro, Repertoire (n 111), 133. 113 Hambro, ‘Interpretation of Multilateral Treaties’ (n 111), 237. 114 Weiler, ‘Transformation of Europe’ (n 95), 2416. 115 The traditional position is set out in H Lauterpacht, Oppenheim’s International Law (8th edn, Longman, 1955), 953. See now: C Greenwood, ‘Sovereignty: A View from the International Bench’ in R Rawlings, P Leyland, and A Young (eds), Sovereignty and the Law: Domestic, European and 109 110

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in a manner that minimizes encroachment upon state sovereignty was, however, even at the time when Weiler was writing, a ‘rule’ only in the most dubious sense of the term. This is nevertheless an assumption that seems to have underlain much of the debates in the literature, and not least, as in Weiler’s example, debates on other types of international law, which are seen by the authors to be free of the shackles of in dubio mitius which is then seen still to be controlling in general international law or the traditional law of treaties. This is clear in Brölmann’s discussion of what on her reading are the differences between interpretation of constitutional treaties and of ordinary treaties. The principle of in dubio mitius, she says, ‘is familiar from the context of “contractual treaties” (traités-contrats)’.116 This principle is followed, Brölmann continues, when the contractual aspects of the international compound to be interpreted is the most striking one; in connection with constitutive treaties, however, in dubio mitius plays only a small role, she concludes.117 The number of writers who today still believe in the principle is certainly on the wane.118 Even the most distinguished writers, such as Jennings and Watts, have until relatively recently claimed that ‘the principle of in dubio mitius applies in interpreting treaties, in deference to the sovereignty of states’; ‘if the meaning of a term is ambiguous, that meaning is to be preferred which is less onerous to the party assuming an obligation, or which interferes less with the territorial and personal supremacy of a party, or involves less general restrictions upon the parties’.119 Crawford has, while being very critical of the principles in some of his work,120 also said of the principle that while he sees it as question-begging, and while the International Court in Navigational Rights gave less scope to it than the Permanent Court did in some cases, ‘the principle may operate in cases concerning regulation of core territorial privileges’; ‘in these instances it is not an “aid to interpretation” but an independent principle’.121 We may, however, confidently say that this is wrong, and moreover that it has been wrong for many decades. Lauterpacht concluded already in 1927 that such a rule only scarcely existed: ‘it is only a subsidiary means of interpretation’; ‘neither the science of international law nor international tribunals can, in the long run, act International Perspectives (Oxford University Press, 2013), 255 (‘states can no longer be regarded as the only subjects of international law’). 116 Brölmann, ‘Specialized Rules of Treaty Interpretation’ (n 18), 513. 117 J Kokott, ‘States, Sovereign Equality’ in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press, 2012), 571. 118 See eg RE Fife, ‘L’objet et le but du traité de Spitsberg (Svalbard) et le droit de la mer’ in La mer et son droit: mélanges offerts à Laurent Lucchini et Jean-Pierre Quéneudec (Pedone, 2003), 253–4. 119 R Jennings and A Watts, Oppenheim’s International Law (9th edn, Longman, 1992), 1278. 120 J Crawford, ‘Sovereignty as a Legal Value’ in J Crawford, M Koskenniemi, and S Ranganathan (eds), The Cambridge Companion to International Law (Cambridge University Press, 2011), 122–3; J Crawford, ‘Treaty and Contract in Investment Arbitration’ (2008) 24 Arb Int 351, 353. 121 Crawford, Brownlie’s Principles of Public International Law (n 17), 379. Brownlie, in earlier editions had given a broad scope to the principle: I Brownlie, Principles of Public International Law (7th edn, Oxford University Press, 2008), 290.

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upon such doctrine without seriously jeopardizing the work of interpretation’.122 The Permanent Court had then held in Polish Postal Service in Danzig that the principle could be relied on ‘only in cases where ordinary methods of interpretation have failed’.123 At the present stage of the development of international law, however, the rejection of this principle in the jurisprudence of international tribunals is very clear.124 Such outliers as presently emerge are very few.125 The Tribunal in Lac Lanoux, where the interpretation of a contractual treaty between France and Spain was in issue, said to the contention by the French government that the terms of the treaty must be ‘strictly construed because they are in derogation of sovereignty’ that it: ‘could not recognize such an absolute rule of construction. Territorial sovereignty plays the part of a presumption. It must bend before all international obligations, whatever their origin, but only before such obligations’; ‘the question is therefore to determine the obligations of the French Government in this case’.126 In Iron Rhine, regarding the interpretation of a contractual treaty between Belgium and the Netherlands, the Tribunal composed under the aegis of the Permanent Court of Arbitration held that ‘the doctrine of restrictive interpretation never had a hierarchical supremacy, but was a technique to ensure a proper balance of the distribution of rights within a treaty system’. The principle of restrictive interpretation, it went on to explain, is not in fact mentioned in the provisions of the Vienna Convention. The object and purpose of a treaty, taken together with the intentions of the parties, are the prevailing elements for interpretation. Indeed, concluded the Tribunal, it had also been noted in the literature that too rigorous an application of the principle of restrictive interpretation might be inconsistent with the primary purpose of the treaty. The treaty provisions under consideration were therefore interpreted ‘not by invocation of the principle of restrictive interpretation, but rather by examining—using the normal rules of interpretation identified in Articles 31 and 32 of the Vienna Convention’.127 The law of investment protection is interesting in this regard. The Tribunal in Mondev gave short shrift to government arguments about the principle of in dubio mitius: it could not be accepted that the treaty ought a priori to be interpreted restrictively or otherwise; ‘in the end the question is what the relevant provisions mean, interpreted in accordance with the applicable rules of interpretation of 122 Lauterpacht, Private Law Sources and Analogies in International Law (n 66), 179–80. Further: A Tanzi, ‘Remarks on Sovereignty in the Evolving Constitutional Features of the International Community’ (2010) 12 ICLR 145. 123 Polish Postal Service in Danzig (1925) PCIJ Series B No 11, 6, 39. 124 See the analysis of classic and recent jurisprudence in R Churchill and G Ulfstein, ‘The Disputed Maritime Zones Around Svalbard’ in MH Nordquist, TH Heidar, and JN Moore (eds), Changes in the Arctic Environment and the Law of the Sea (Martinus Nijhoff, 2010). 125 SGS Société Générale de Surveillance SA v Islamic Republic of Pakistan (Procedural Order of 16 October 2002) at [171] (‘The appropriate interpretive approach is the prudential one summed up in the literature as in dubio pars mitior est sequenda, or more tersely, in dubio mitius’) and Appellate Body Report, EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R; WT/ DS48/AB/R, adopted 16 January 1998 [163]–[165] (where the Appellate Body refers to ‘the interpretative principle of in dubio mitius [as] widely recognized in international law’). 126 Lac Lanoux Arbitration (1957) 24 ILR 101, 119–20. 127 Iron Rhine (Belgium v Netherlands) (n 80), 64–5.

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treaties’.128 It is clear that investment tribunals rely in their interpretation on the object and purpose of investment treaties;129 treaty interpretation is not subject to any particular presumption but is geared to give effect to the object and purpose of the treaty within the context of the treaty.130 Waibel has argued that investment tribunals rely almost too much on the object and purpose of bilateral investment treaties; they at times are guided by what he calls maximal investment protection in a way that is overly outcome-driven.131 It must be right that in some cases investment tribunals rely too much on the purpose of investment protection, even to the extent that at times such reliance goes beyond what follows from the general rule.132 There ought not to be any automaticity according to which ambiguities should invariably be resolved in favour of investors.133 Nonetheless, with its reliance on object and purpose, and its rejection of presumptions of restrictive interpretation, the jurisprudence by investment treaty tribunals is a good example of how, ‘the language of treaties is not subject to any particular presumption but will be read so as to give effect to the object and purpose of the treaty in its context’.134 This can be seen in cases where investment tribunals interpret ‘fair and equitable treatment’ standards,135 such as the one found in Article 1105 of the North American Free Trade Agreement (NAFTA).136 This type of provision has been interpreted on the presumption that it was the intention of the parties to guarantee standards of treatment that would build upon the customary law protection laid down by the Claims Commission of the inter-war years, notably the Mexican Claims Commission in the 1926 Neer case, which dealt with the

Mondev v United States of America (Award 11 October 2002) [2002] 6 ICSID Rep 192 at [43]. I Alvik, Contracting with Sovereignty: State Contracts and International Arbitration (Hart, 2011), 191–2; JW Salacuse, The Law of Investment Treaties (Oxford University Press, 2010), 146–7; R Dolzer and C Schreuer, Principles of International Investment Law (2nd edn, Oxford University Press, 2012), 29–30; J Romesh Weeramantry, Treaty Interpretation in Investment Arbitration 130 (Oxford University Press, 2012), 67–76. Crawford, ‘Sovereignty’ (n 120), 123. 131 M Waibel, ‘International Investment Law and Treaty Interpretation’ in R Hofmann and CJ Tams, International Investment Law and General International Law: From Clinical Isolation to Systemic Integration? (Nomos, 2011), 38–40. 132 See SGS Société Générale de Surveillance SA v Republic of the Philippines (2004) 8 ICSID Rep 515 at [50]; Ecuador v Occidental (No 2) [2007] 1 Lloyd’s Rep 352 at [28]. 133 Czech Republic v European Media Ventures [2007] EWHC 2851 (Comm). Also: M Waibel, ‘International Investment Law and Treaty Interpretation’ (n 131), 44. 134 Crawford, ‘Sovereignty’ (n 120), 123. 135 See LG&E Energy Co et al v The Argentine Republic, ICSID case no ARB/02/1 (Decision on Liability) 26 September 2006 at [124]; Saluka Investments BV (The Netherlands) v The Czech Republic (Partial Award) 17 March 2006 at [298]. See more broadly for an object and purpose approach: Lauder v Czech Republic (Award 3 September 2001) [2001] 9 ICSID Rep 66 at [292]; MTD v Chile (Award 25 May 2004) (2005) 44 ILM 91 [104]–[105]; Siemens v Argentina (Decision on Jurisdiction 3 August 2004) (2005) 44 ILM 138 at [81]; CMS v Argentina (Award 12 May 2005) (2005) 44 ILM 1205 at [274]; Noble Ventures v Romania (Award 12 October 2005) at [52]; Aguas del Tunari SA v Bolivia (Decision on Jurisdiction 21 October at [240]–[241]; Continental Casualty Co v Argentina (Decision on Jurisdiction 22 February 2006) at [80]. 136 North American Free Trade Agreement, 8–17 December 1992, 32 ILM 605 (entered into force 1 January 1994). 128 129

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alleged failure properly to investigate the murder of a foreigner at the hands not of state officials but of private individuals.137 Starting from the presumption that in concluding bilateral and regional investment treaties the parties intend to confer at least the protection guaranteed in the Neer case, international courts and tribunals have gone far in making evolutionary interpretations of these standards. Thus a Chamber of the International Court of Justice in ELSI relied upon a less stringent standard than the one set out in Neer, stating that arbitrariness could be described as ‘a wilful disregard of due process of law, an act which shocks, or at least surprises, a sense of propriety’.138 This has not, however, always been done in a uniform fashion. Different standards have been applied, one of which has been evolutionary; the other, more static.139 Examples of the latter, more static approach, include Glamis Gold140 and Cargill.141 The Tribunal in Glamis Gold took the Neer ruling to establish the international minimum standard, holding that ‘although situations may be more varied and complicated today than in the 1920s, the level of scrutiny is the same’.142 In Cargill the Tribunal held that the prevailing trend in the jurisprudence was ‘not so much to make the holding of the Neer arbitration more exacting, but rather to adapt the principle underlying the holding of the Neer arbitration to the more complicated and varied economic positions held by foreign nationals today’.143 Key to this adaptation, concluded the Cargill Tribunal, is that even as more situations are addressed, the required severity of the conduct as held in Neer is maintained. It may be that in some cases tribunals have gone too far in adapting an evolving concept of the Neer formula. An example of the former, more evolutionary approach, is Mondev,144 where the Tribunal made three points regarding the level of protection afforded: First, Neer and other similar cases from the period, concerned not the treatment of foreign investment as such but the physical security of the alien, who had been killed by a number of men who were not even alleged to be acting under the control or at the instigation of Mexico. There was thus insufficient cause for assuming that the provisions of bilateral investment treaties, and NAFTA, were confined to the Neer standard. Secondly, in light of developments in international law it would today be ‘unconvincing to confine the meaning of “fair and equitable treatment” and “full protection and security” of foreign investments to what those terms—had 137 LFH Neer and Pauline Neer v United Mexican States (1926) 3 ILR 213; (1926) 4 RIAA 60, 61–2; (1927) 21 AJIL 555, 556. See M Paparinskis, The International Minimum Standard and Fair and Equitable Treatment (Oxford University Press, 2013), 6; Dolzer and Schreuer, Principles of International Investment Law (n 129), 139. Also: Roberts (1926) 3 ILR 227; Hopkins (1926) 3 ILR 229; British Claims in the Spanish Zone of Morocco (1925) 2 RIAA 615, 644. 138 Elettronica Sicula SpA (ELSI) (United States v Italy) [1989] ICJ Rep 15, 76. 139 Crawford, Brownlie’s Principles of Public International Law (n 17), 613–14. 140 Glamis Gold v United States, 8 June 2009. 141 Cargill Inc v Mexico (2009) 146 ILR 642. 142 Glamis Gold v United States (n 140), at [614]–[616]. See Dolzer and Schreuer, Principles of International Investment Law (n 129), 140–1. 143 Cargill Inc v Mexico (2009) 146 ILR 642 at [284]. 144 Mondev v United States of America (2002) 125 ILR 98, 147–8 at [115]–[117].

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they been current at the time—might have meant in the 1920s’ as at the time Neer was handed down the status of the individual in international law, and the international protection of foreign investments, were far less developed than they since have come to be. Thirdly, given the coming into being over the last decades of the vast number of bilateral and regional investment treaties that provide for fair and equitable treatment of foreign investments, it would be surprising if this practice and the vast number of provisions it reflects were to be interpreted as meaning no more than the Neer Tribunal meant in the 1920s.145 Thus, the Tribunal held, ‘Article 1105(1) is intended to provide a real measure of protection of investments’; ‘it has evolutionary potential’. The Tribunal concluded by saying that: A reasonable evolutionary interpretation of Article 1105(1) is consistent both with the travaux, with normal principles of interpretation and with the fact that, as the Respondent accepted in argument, the terms ‘fair and equitable treatment’ and ‘full protection and security’ had their origin in bilateral treaties in the post-war period. In these circumstances the content of the minimum standard today cannot be limited to the content of customary international law as recognised in arbitral decisions in the 1920s.146

Many other rulings have taken the same approach to the development of the content of the treaty terms granting investor protection as was taken in Mondev.147 In doing so, investment tribunals have, with very few exceptions,148 applied an approach according to which there is no reason a priori why they should interpret the treaties at issue restrictively. The principle of in dubio mitius has in fact never been accepted by the International Court, and in Navigational Rights, bearing on the interpretation of a contractual treaty between Costa Rica and Nicaragua as to, among other things, navigation on the San Juan river, the International Court rejected an argument in favour of Nicaragua’s sovereignty, stating that it was not convinced that Costa Rica’s right to free navigation on the San Juan river should be interpreted narrowly because it

Mondev v United States of America (n 144), 147–8 at [115]–[117]. Also eg Azurix Corpn v Argentine Republic ICSID Case No ARB/01/12 (Final Award) 14 July 2006 at [361]; LG & E Energy Corpn and Others v Argentine Republic ICSID Case No ARB/02/1 (Decision on Liability) 3 October 2006 at [125]; CMS Gas Transmission Co v Argentine Republic (Award) (2005) 44 ILM 1205, 1236 at [284]. Further: Weeramantry, Treaty Interpretation in Investment Arbitration (n 129), 140–42. 147 See Pope & Talbot Inc v Canada (Interim Award) 26 June 2000 at [57]–[58]; ADF Group v United States of America ICSID Case No ARB(AF)/00/1 (Award) 9 January 2003 at [179]–[180]; TECMED v Mexico (2003) 10 ICSID Rep 130 at [116]; Waste Management v Mexico (30 April 2004) ICSID Case No ARB(AF)/00/3 at [91]–[93]; International Thunderbird Gambling Corpn v Mexico (Award) 26 January 2006 at [194]. Also: R Kläger, ‘Fair and Equitable Treatment’ in International Investment Law (Cambridge University Press, 2011), 74–6 and 94–112; J Paulsson, Denial of Justice in International Law (Cambridge University Press, 2005), 68–9; Alvik, Contracting with Sovereignty (n 129), 192–205; I Tudor, The Fair and Equitable Treatment Standard in the International Law of Foreign Investment (Oxford University Press, 2008), 130–3 and 142–53; M Waibel, Sovereign Defaults before International Courts and Tribunals (Cambridge University Press, 2011), 293–6; Paparinskis, International Minimum Standard and Fair and Equitable Treatment (n 137), Ch 4. 148 See SGS Société Générale de Surveillance SA v Islamic Republic of Pakistan (Procedural Order of 16 October 2002) at [171]. 145

146

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represents a limitation of the sovereignty over the river conferred by the treaty on Nicaragua: While it is certainly true that limitations of the sovereignty of a State over its territory are not to be presumed, this does not mean that treaty provisions establishing such limitations, such as those that are in issue in the present case, should for this reason be interpreted a priori in a restrictive way.149

The language of treaties is therefore ‘not subject to any particular presumption but will be read so as to give effect to the object and purpose of the treaty in its context’.150 This focus in connection with a contractual treaty on object and purpose ties in with what was said above, about how it is not in any way a particularity of human rights or constitutional interpretation to focus on teleology, or a treaty’s object and purpose. In Navigational Rights it was not just the sovereignty of one state that was in issue; the sovereignty of Costa Rica was no less important than that of Nicaragua. This is an important point which seems sometimes to be forgotten by those who have argued for the existence of the principle of in dubio mitius. ‘International law and justice are based upon the principle of equality between states’ the Tribunal held in Arbitration between the United States of America and the Kingdom of Norway under the Special Agreement of June 30;151 ‘No principle of law is more universally acknowledged than the perfect equality of nations’ the US Supreme Court stated in The Antelope.152 This point has been made in the literature too: ‘An international tribunal, or a municipal tribunal when giving effect to the international obligations of the State to which it belongs, pays the same attention to the rights of France as it does to the rights of Costa Rica’, as McNair put it in 1937.153 This is exactly what may be concluded from Lac Lanoux (where as it happened France in effect argued that its sovereignty was more important than that of Spain) and Navigational Rights (where conversely Nicaragua had in effect argued that its sovereignty was more important than that of Costa Rica). The principle of sovereign equality is codified in Article 2(1) of the Charter of the United Nations:154 ‘The Organization is based on the principle of the sovereign equality of all its Members’.155

149 Navigational and Related Rights (Costa Rica v Nicaragua) (n 62), 237. Also: Dispute concerning Filleting within the Gulf of St Lawrence (‘La Bretagne’) (Canada/France) (1986) 82 ILR 591, 615 at [30]; Case Concerning the Delimitation of Maritime Areas between Canada and the French Republic (1992) 31 ILM 1149, 1174 at [86]. 150 Crawford, ‘Sovereignty as a Legal Value’ (n 120), 123. 151 Award of the Tribunal of Arbitration between the United States of America and the Kingdom of Norway under the Special Agreement of June 30, 1921 (1923) 17 AJIL 362, 392. 152 The Antelope 10 Wheat 66 JB Scott, Cases on International Law (Boston Book Co, 1902), 10. 153 AD McNair, ‘Equality in International Law’ (1927) 26 Michigan LR 131, 136; McNair, The Law of Treaties (n 9), 765–66. Also: Rousseau, Droit international public I (n 68), 273. 154 Charter of the United Nations, 26 June 1945, 892 UNTS 119. 155 Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) [2012] ICJ Rep 99, 123–4 at [57] (holding that the principles of sovereign immunity ‘derives from the principle of sovereign equality of States, which, as Article 2, paragraph 1, of the Charter of the United Nations makes clear, is one of the fundamental principles of the international legal order’).

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If we are to take this seriously, then surely it must mean that it cannot be right that the sovereignty of one state is to trump that of another; in a sense this argument from sovereignty also contributes to undermine the sovereignty-based principle of in dubio mitius. The absolute nature of the concept of sovereignty was, in Tanzi’s words, mitigated from its inception by the concept of equality of sovereign states.156 This problem with in dubio mitius was perhaps brought out the most clearly in Iron Rhine: ‘the sovereignty reserved to the Netherlands under Article XII of the 1839 Treaty of Separation cannot be understood save by first determining Belgium’s rights, and the Netherlands’ obligations in relation thereto’.157 There is also a second argument from sovereignty that undercuts the alleged principle of in dubio mitius. It too becomes obvious once it is stated. In fact it was relied upon already in The Wimbledon,158 where the Permanent Court declined to see in the conclusion of any treaty by which a state undertakes to perform a particular act an abandonment of its sovereignty: ‘No doubt any convention creating an obligation of this kind places a restriction upon the exercise of the sovereign rights of the State, in the sense that it requires them to be exercised in a certain way. But the right of entering into international engagements is an attribute of State sovereignty.’159 Thus, as Crawford has observed, an argument from sovereignty is evaded by an appeal to sovereignty; if states could not enter into binding international obligations, they would lack an attribute of statehood.160 The unacceptability in international law of the principle of in dubio mitius was, in general terms, underlined by Franck when he said that: ‘Sovereignty has historically been a factor greatly overrated in international relations. Among the overraters have been prominent practitioners of international law, dazzled by their status as, or aspiring to be, high officials of their national foreign offices.’161 Huber who in 1928 had given the famous definition of sovereignty in Island of Palmas, where he stated that ‘sovereignty in the relations between States signifies independence’,162 in 1958 held that notions of sovereignty would have to give way. Huber, in common with Franck, underlined how in the chancelleries of the world exaggerated ideas of sovereignty have outlived themselves, at the expense of international cooperation: Nobody will venture to assert that the international law of today, in spite of new directions in 1920 and 1946, is able to cope with the present world situation. The responsibility of all concerned with international law in the widest sense of the term, whether as politicians or scientists, is all the heavier. There is only one way to a new solution: coexistence

156 A Tanzi, ‘Remarks on Sovereignty in the Evolving Constitutional Features of the International Community’ (n 122), 151. 157 Iron Rhine (Belgium v Netherlands) (n 80), 65. 158 159 Case of the SS ‘Wimbledon’ (n 5), 15. Case of the SS ‘Wimbledon’ (n 5), 25. 160 Crawford, ‘Treaty and Contract’ (n 120), 353; H Lauterpacht, Private Law Sources and Analogies (n 66), 179–80. 161 T Franck, Fairness in International Law and Institutions (Oxford University Press, 1998), 3. 162 Island of Palmas (Netherlands v United States of America) (1928) 2 RIAA 829, 838.

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and the idea of sovereignty, which flattered and served the sense of power in big states and the desire for independence in small ones, must make way for an efficient and active community of nations.163

We should therefore join the conclusion of those who have consigned to history the principle that contractual treaties are to be interpreted restrictively in deference to state sovereignty: ‘the principle is to be regarded to be of more historical than official interest’.164 What we may conclude from this is that, while not least some of the writers who focus on other types of treaty than ‘ordinary’ or contractual treaties have gone very far, even in the present age, in claiming that contractual treaties are to be interpreted according to in dubio mitius, their contentions lack a sound basis both in the modern and classic law of treaties.165 It must therefore be right, both normatively and descriptively, to say that whatever may have been true of old judicial authorities one is most unlikely today ever to see an international Tribunal of repute deciding a disputed point of interpretation by reference to supposedly special doctrines thought to be specially applicable to particular types of case, such as a ‘restrictive’ doctrine of interpretation.166

2.3 Systemic Coherence in both Content and Method This leads us to that which more directly concerns the methods of treaty interpretation adopted. As was said in the introduction to this chapter, there is a connection between fragmentation with respect to the content of rules and fragmentation with respect to the law of treaties, that is to say fragmentation in the method of treaty interpretation. The techniques of treaty interpretation must not be seen only from the formal point of view; they also have material consequences, that is, consequences for the substance or contents of norms.167

2.3.1 Coherence in content The analysis here goes back to what was said in the introduction to this chapter about self-contained regimes and their relation to whether it is a tenable claim to say that the law of treaties is fragmented. The analysis will in the main turn around Pulp Mills on the River Uruguay168 and Diallo.169 This is not least because 163 M Huber, ‘On the Place of the Law of Nations in the History of Mankind’ in Symbolae Verzijl: Présentées au Professeur JHW Verzijl à l’occasion de son LXX-ième anniversaire (Martinus Nijhoff, 1958), 194–5. 164 G Ulfstein, The Svalbard Treaty (Scandinavian University Press, 1995), 94;L Crema, ‘Disappearance and New Sightings of Restrictive Interpretation(s)’ (2010) 21 EJIL 681, 686–8. 165 See H Lauterpacht, ‘Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties’ (1949) 26 BYIL 48. 166 Berman, ‘Community Law and International Law’ (n 2), 250. 167 Dupuy and Kerbrat, Droit international public (n 102), 352. Also: H Ruiz Fabri, ‘La contribution de l’Organisation mondiale du commerce à la gestion de l’espace juridique mondial’ in E Loquin and C Kessedjian (eds), La mondialisation du droit (Litec, 2000), 369. 168 Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) [2010] ICJ Rep 14. 169 Diallo (Republic of Guinea v Democratic Republic of the Congo) (Preliminary Objections) [2007] ICJ Rep 582; Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo)

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these two case complexes turn on the same two areas (or alleged ‘self-contained regimes’) that were in issue in the two classic cases with which this chapter began, Case of the SS ‘Wimbledon’ 170 and in United States Diplomatic Consular Staff in Tehran171—namely the law of international waterways and consular protection. In Pulp Mills on the River Uruguay, a case bearing on the law of international waterways and international environmental law, the International Court held that the treaty, the so-called Statute of the River Uruguay, must ‘be interpreted in accordance with a practice, which in recent years has gained so much acceptance among States that it may now be considered a requirement under general international law to undertake an environmental impact assessment where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource’.172 The Court struck the same note when, in Diallo it did not treat consular protection as a self-contained regime, but instead relied on human rights law in its establishment of what level of protection ought to be accorded in the case.173 This was made explicit in the concurring opinion of Judge Cançado Trindade who stated that while the procedure for the claim for the vindication of the claim originally utilized was that of diplomatic protection, the substantive law applied by the Court was ‘the International Law of Human Rights’.174 The International Court made it clear that it was thus no longer the case that, to use the formula from United States Diplomatic and Consular Staff in Tehran, ‘the rules of diplomatic law, in short, constitute a self-contained regime’.175 This seemed to be in step with the criticism that had been levelled at Tehran Hostages, for example by Simma, who have argued that while the rules of diplomatic law, due to the dictum in Tehran Hostages, had become the rules of international law the most commonly associated with the notion of self-containment, but that in fact they were ‘the least convincing example of a closed system of secondary rules’.176 In fact the International Court in Diallo went so far, in bringing human rights norms to bear upon the law of diplomatic protection, as to cite jurisprudence from the African Commission on Human and Peoples’ Rights, the Inter-American Court of Human Rights, and the European Court of Human Rights.177 To some extent the (Merits) (Judgment) [2010] ICJ Rep 639; Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), Compensation (Judgment) [2012] ICJ Rep 324. 170 Case of the SS ‘Wimbledon’ (n 5), 23–4. 171 United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) (n 6), 40 at [86]. 172 Pulp Mills on the River Uruguay (Argentina v Uruguay) (n 168), 83 at [204]. 173 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Merits) (n 169), 662– 73 at [63]–[98]; Diallo (Republic of Guinea v Democratic Republic of the Congo) (Preliminary Objections) (n 169) [2007] ICJ Rep 582, 599 at [39]. Also: Clapham, Brierly’s Law of Nations (n 64), 259–64. 174 Concurring Opinion of Judge Cançado Trindade in Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Merits) (n 169), 804 at [220]. 175 United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) (n 6), 40 at [86]. 176 Simma and Pulkowski, ‘Leges speciales and Self-Contained Regimes’(n 4), 150. 177 M Andenas, ‘International Court of Justice, Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) Judgment of 30 November 2010’ (2011) 60 ICLQ 810, 816–17.

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same could be said of LaGrand—a case concerned with a synallagmatic, inter-state convention, the Vienna Convention on Consular Relations.178 In his analysis of this case Crawford asked: in what respect is the category of ‘human rights’ special? The answer, he says, is that it may not be. That is why, he continues, the International Court in LaGrand saw the Vienna Convention on Consular Relations as giving rise to individual rights.179 It has in later years been possible to observe a tendency according to which the International Court itself has started referring, even more than it used to do before,180 to other types of international court and Tribunal, not least the human rights courts and bodies. It was eloquent of this development when Judge Greenwood, in Diallo (Compensation), observed that: International law is not a series of fragmented specialist and self-contained bodies of law, each of which functions in isolation from the others; it is a single, unified system of law and each international court can, and should, draw on the jurisprudence of other international courts and tribunals, even though it is not bound necessarily to come to the same conclusions.181

This seems now to have become the new orthodoxy. As referred to above, Crawford, who sees international law not only as a system, but specifically as an open system, said that there are hardly any entirely self-contained regimes at all; he mentions the European Union as the only possible candidate.182 Special Rapporteur Sir Michael Wood has, in the context of an ILC study on the formation of customary international law, stated that given the unity of international law and the fact that international law is a legal system, it is neither helpful nor in accordance with principle to break the law up into separate specialist fields. The same basic approach to the formation and identification of customary international law, he said, applies regardless of the field of law under consideration.183 The tendency—in the literature, in the jurisprudence of international tribunals, and in the work of the ILC—seems to have gone from focusing on what is different among the different fields of international law ‘to move freely over the boundaries, which seem to divide these fields of law and to bring out the underlying unities’.184

LaGrand (Germany v United States of America) (Judgment) [2001] ICJ Rep 466. Crawford, International Law as an Open System (n 109), 28–9. 180 It is important to remember that the Permanent and the International Court have on many occasions referred to the decisions of other tribunals: AD McNair, The Development of International Justice (New York University Press, 1954), 12–13; Crawford, Brownlie’s Principles of Public International Law (n 17), 39–40. 181 Declaration of Judge Greenwood in Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), Compensation (Judgment) [2012] ICJ Rep 324, 394 at [8]‌. 182 Crawford, International Law as an Open System (n 109), 37. 183 First Report on Formation and Evidence of Customary International Law UN Doc A/ CN.4/663, 7–8. 184 AF Denning, ‘Foreword’ (1952) 1 ICLQ 1. 178

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2.3.2 Coherence in method In the cases where the International Court has confirmed the coherence of international law as a system, the Court has also confirmed the coherence in the law of treaties with respect to interpretation. This shows the connection between the material substance of the rules in issue and of the methods used in order to establish that rule substance. As was said above, it was in cases bearing on the law of international waterways and consular protection that the Permanent Court and the International Court set out the classical parameters for the debate on the existence in international law of self-contained regimes.185 This approach could be contrasted with the approach taken by the International Court more recently in especially two cases from the same two areas of international law: Pulp Mills186 and Diallo.187 In Pulp Mills and Diallo the International Court refused to see the area in issue as a self-contained regime—and specifically showed this by the styles of interpretation chosen. The International Court in Pulp Mills adopted an evolutionary interpretation,188 where the bilateral treaty was seen by the Court as having been intended by the parties to be capable of evolution, so that the provisions of the treaty were interpreted in accordance with a general practice, which in recent years had gained so much acceptance that it must be considered a requirement under general international law.189 Coherence with respect to the content of the rules and coherence with respect to method in this way were made to go hand in hand: it was by way of evolutionary interpretation that the Court made sure that the bilateral environmental treaty was in conformity with general international law. As was foreshadowed in the introduction, and as will be discussed in more detail in Chapter 3, this approach to interpretation has been seen as being alien to general international law, and particularly synallagmatic, bilateral treaties, but here the International Court applies such an approach to just such a treaty, and it did so with reference to what it had said about evolutionary interpretation in Navigational Rights, another example of the Court applying such an approach to a synallagmatic treaty.190 In Diallo the same mechanism may be observed.191 Yet in this case it was not an interpretation of an evolutionary character that was adopted; what was in issue here was, I would argue, effective interpretation. The case bore on diplomatic 185 Case of the SS ‘Wimbledon’ (n 5), 23–4; United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) (n 6), 40 at [86]. 186 Pulp Mills on the River Uruguay (Argentina v Uruguay) (n 168). 187 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Merits) 188 (n 169). See Ch 3. 189 Pulp Mills on the River Uruguay (Argentina v Uruguay) (n 168), 82–3 at [204]. 190 Pulp Mills on the River Uruguay (Argentina v Uruguay) (n 168), 83 at [204]: ‘As the Court has observed in the case concerning the Dispute Regarding Navigational and Related Rights, “there are situations in which the parties’ intent upon conclusion of the treaty was, or may be presumed to have been, to give the terms used—or some of them—a meaning or content capable of evolving, not one fixed once and for all, so as to make allowance for, among other things, developments in international law” ’. 191 Andenas, ‘Ahmadou Sadio Diallo’ (n 177), 813.

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protection, a field which, as we saw above, had been described in Tehran Hostages as a self-contained regime.192 It should be noted here that the approach of the International Court in Tehran Hostages had been criticized in the literature, and this criticism has not only centred on the idea of a ‘self-contained regime’ but the idea of a ‘regime’ itself. Crawford and Nevill have held that ‘the institutions of diplomatic protection cannot be usefully described as a regime’. On their view it was both unfortunate and unnecessary that the International Court used the word ‘regime’: The Court was seeking to make the point that diplomatic relations is a self-contained system insofar as the arrangement for sanctions or taking measures against diplomats is set out in diplomatic law rather than any other part of general international law. But the specific rules sit within general international law, to which we resort alongside and in the absence of specific subject-matter rules.193

It would be better therefore if the word regime was used in a more discriminating way, and in particular was not used to describe branches of general international law. Diallo is an example of this type of argument prevailing. The International Court, in considering the provisions on the expulsion of an alien lawfully in the territory of a state, made clear that expulsion of Diallo could be effected only in accordance with the law, but that ‘in accordance with the law’ was not sufficient in itself. In addition, the applicable domestic law must be compatible with the other requirements of the relevant international law and the expulsion must not be arbitrary: it is clear that while ‘accordance with law’ as thus defined is a necessary condition for compliance with the above-mentioned provisions, it is not the sufficient condition. First, the applicable domestic law must itself be compatible with the other requirements of the Covenant and the African Charter; second, an expulsion must not be arbitrary in nature, since protection against arbitrary treatment lies at the heart of the rights guaranteed by the international norms protecting human rights.194

To focus in this way on the protection against arbitrary treatment, and to use that as a guiding principle in the interpretation of the provisions in issue, seems to be to take seriously the principle of effectiveness.195 In fact, by concluding this way, the International Court in Diallo took more seriously than the European Court had done in similar cases the general exhortation, from Airey v United Kingdom, that human rights conventions such as the European Convention are ‘intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective’.196 For it does seem to have been the case that the International Court 192 United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) (n 6), 40 at [86]. 193 Crawford and Nevill, ‘The “Regime Problem” ’ (n 4), 259. 194 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Merits) (n 169), 663 at [65]. 195 Dispute between Argentina and Chile concerning the Beagle Channel (1977) 11 RIAA 53, 231; Iron Rhine (Belgium v Netherlands) (n 80), 64. 196 Airey v United Kingdom App No 6289/73, judgment 9 October 1979 at [24]; Demir and Baykara v Turkey App No 34503/97, judgment [GC] 12 November 2008 at [61].

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went further than the human rights bodies have done in this regard, thus following that which has been seen to be the method of the human rights tribunals more scrupulously than those tribunals have done themselves. This will be explained in the following. As was said above, the International Court in Diallo relied directly on jurisprudence from other international and regional bodies, such as the United Nations Human Rights Committee197 and the African Commission on Human and Peoples’ Rights.198 Moreover, it noted that the interpretation by the European Court of Human Rights and the Inter-American Court of Human Rights, respectively, of Article 1 of Protocol 7 to the European Convention and Article 22(6) of the American Convention—the said provisions being close in substance to those of the Covenant and the African Charter which the Court was applying in the present case—was consistent with what had been found in respect of the latter provisions.199 Judges Greenwood and Keith, however, pointed out that the cited jurisprudence on the expulsion provisions in issue did not, in point of fact, confer protection on substance, only on procedure.200 This is borne out both by the jurisprudence of the European Court and of the Inter-American Commission.201 The leading commentaries on the European Convention, too, seem to bear out this proposition. One commentary tersely states that the procedural guarantees of the pertinent provision provide no protection of substance, that is, relating to the grounds on which expulsion might be sought.202 As a result, and as Judges Greenwood and Keith show, the International Court in effect went further in its effective interpretation of the human rights provisions at issue than the human rights bodies have gone.203 Again, LaGrand is pertinent.204 Crawford, in his analysis of LaGrand, has stated that when the International Court reached its conclusion that the Vienna Convention on Consular Relations gave rise to individual rights, it did so using that which he terms the ‘principle of ordinary interpretation’.205 It must be right 197 Maroufidou v Sweden No 58/1979 at [9.3]; Human Rights Committee, General Comment No 15: The position of aliens under the Covenant. 198 Kenneth Good v Republic of Botswana No 313/05 at [204]; World Organization against Torture and International Association of Democratic Lawyers, International Commission of Jurists, Interafrican Union for Human Rights v Rwanda Nos 27/89, 46/91, 49/91, 99/93. 199 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Merits) (n 169), 664 at [68]. 200 Separate Opinion Judges Greenwood and Keith in Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Merits) (n 169), 716–19 at [11]–[14]. 201 Bolat v Russia App No 14139/03, judgment 5 October 2006 at [81]–[83]; Lupsa v Romania App No 10337/04, judgment 8 June 2006 at [54]–[61]; Situations of Haitians in the Dominican Republic, Inter-American Commission on Human Rights, Ann Rep 1991, 14 February 1992, ch V. 202 RCA White and C Ovey, Jacobs, White, and Ovey: The European Convention on Human Rights (5th edn, Oxford University Press, 2010), 544–5. Also: D Harris, M O’Boyle, E Bates, and C Buckley, Harris, O’Boyle and Warbrick: Law of the European Convention on Human Rights (2nd edn, Oxford University Press, 2009), 747–8. 203 E Bjorge, ‘Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo)’ (2011) 105 AJIL 534, 539–40. 204 LaGrand (Germany v United States of America) (Judgment) [2001] ICJ Rep 466. 205 J Crawford, International Law as an Open System (n 109), 28–9; Crawford and Nevill, ‘The “Regime Problem” ’ (n 4), 235.

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therefore to say, as Crawford has done in another context, of the techniques of treaty interpretation that ‘these techniques seem to have a general character, whether they arise in the International Court of Justice, in the dispute system of the WTO, in the European Court of Justice or elsewhere’.206

2.4 Conclusion International law is indeed a legal system. It is not a series of fragmented specialist and self-contained bodies of law; it is a single, unified system of law.207 And the techniques that the ILC invoked and recommended are simply ‘techniques of general international law’.208 It is, as Koskenniemi has observed, evident by now that ‘fragmentation’ did not turn out to create the chaos that was feared 10–15 years ago.209 It may indeed be that we are in this regard seeing the contours of what has been called ‘a process of gradual learning’.210 This is, as this chapter has argued, also the case with the method used in treaty interpretation. The method is not fragmented; the law of treaties, the method used by various types of international Tribunal in treaty interpretation, is a single, unified method of law. Berman has argued that the Vienna Convention rules, when they were adopted in 1969, ‘swept away at the same time all the supposed special tenets of interpretation that had enveloped the subject like cobwebs’. Thus one is today most unlikely to see an international Tribunal of repute deciding a disputed point of interpretation by reference to special styles of interpretation, such as a ‘restrictive’ doctrine of interpretation, or any other supposed special doctrine thought to be specially applicable to particular types of case.211 Lauterpacht and McNair in the preface of the first published212 volume of The Annual Digest of Public International Law Cases famously observed that ‘The work of which this book is the first-fruits was prompted by the suspicion that there is more international law already in existence and daily accumulating “than this world dreams of” ’.213 Jennings in the mid-1990s felt that the ‘tendencies to fragmentation in international adjudication threaten to give an ironic modern twist to

Crawford, International Law as an Open System (n 109), 37. Declaration of Judge Greenwood in Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Compensation) (n 169), 394 at [8]‌. 208 Crawford and Nevill, ‘The “Regime Problem” ’ (n 4), 236. 209 M Koskenniemi, ‘The Case for Comparative International Law’ (2009) 20 FYIL 5. 210 IJ Sand, ‘The Fragmentation of Law on the Global Level: Conflicts of Law or Processes of Learning?’ in OK Fauchald and others (eds), Liber Amicorum Carl August Fleischer (Norwegian University Press, 2006), 496. 211 Berman, ‘Community Law and International Law’ (n 2), 250. 212 The volumes were not numbered until 1958; as R Jennings explains, the volumes after 1958 then numbered 1 and 2 were edited by F Williams and H Lauterpacht; the present volume 3 was the first published and edited by A McNair and H Lauterpacht: Jennings, ‘Development of International Law’ (n 39), 1. 213 AD McNair and H Lauterpacht, ‘Preface’ in H Lauterpacht and J Fischer Williams (eds), Annual Digest of Public International Law Cases 1925–26 (Cambridge University Press, 1929), ix. 206 207

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McNair’s belief that there is more international law in existence “than this world dreams of” ’.214 Jennings’s fears were in the final analysis exaggerated. We should not forget what Lauterpacht and McNair added after they had stated their suspicion that there was more international law already in existence and accumulating daily than this world dreams of: they added that ‘it is more international law that this world wants’.215 That last point has indeed proved to be correct. As Waibel has observed in an analysis of developments in the law of treaties: ‘the more international law, the better’.216 And given the development during the last few years, this accretion and accumulation of international law have not, as we have seen, meant more fragmentation but arguably less. It is on this basis tempting to conclude that the more international law that has come into existence, the clearer the unity of the international legal system has become. The extension of the development to which Lauterpacht and McNair pointed in 1929 has only continued but the problems to which one could have imagined the development would give rise have not in fact materialized. Crawford and Nevill have argued that there is no ‘meta-system’ that underlies international law and that is able to safeguard its coherence.217 Yet it must be possible to say that while the mass of international law is greater now than ever before, the extent to which international law can be said to be a coherent system is quite striking. And, on the argument presented in this book, this is, as this chapter has shown, no less true of the method applied in the law of treaties. Never have international tribunals produced so much treaty analysis as now; the law of treaty interpretation is indeed, and despite having been codified more than 40 years ago, one of the most dynamic fields of international law.218 Yet the unity which the method displays is little short of striking. The analysis in this chapter of the jurisprudence, especially of the International Court, has ventured to bear out the proposition that there is in international law one method, and that, even where tribunals insist that they are applying a particular style of interpretation,219 they seem in fact to be applying the same method. Exactly what this method is, and its relation to evolutionary interpretation, is the topic of the next chapter.

214 Jennings, ‘Development of International Law’ (n 39), 5–6 (Jennings claims that the citation was cast in words ‘redolent of McNair’; this is why he leaves Lauterpacht out here: (n 39), 1). 215 AD McNair and H Lauterpacht, ‘Preface’ (n 213), ix. 216 M Waibel, ‘Demystifying the Art of Interpretation’ (2010) 22 EJIL 571, 573: Waibel adds a caveat, however, with regard to whether the accretion of international law is necessarily a good thing in the more general sense: ‘it is no longer possible (if it ever was) to say that the maturing system of international law is invariably a “progressive” force, necessarily leading to an improvement of the human condition’. 217 Crawford and Nevill, ‘The “Regime Problem” ’ (n 4), 252. 218 Waibel, ‘Demystifying the Art of Interpretation’ (n 216), 572. 219 See eg Berman, ‘Community Law and International Law’ (n 2), 268–77.

3 The Means of Interpretation Admissible for the Establishment of the Intention of the Parties ‘If we want things to stay as they are, things will have to change.’ —Giuseppe Tomasi di Lampedusa, The Leopard (Archibald Colquhoun tr, Random House, 1960), 26

3.1 Introduction A treaty represents consent to be bound. It is the intention to enter into legal relations by agreement that gives a treaty its legal force.1 This may seem a self-evident truth but it is useful to begin by making this clear. In fact one of the expressions that appears the most in the Vienna Convention on the Law of Treaties (VCLT) is the description of a treaty as a ‘consent to be bound’.2 The Vienna Convention takes a classical approach in the sense that its approach is founded on the principle of state sovereignty, with state consent being the expression of that sovereignty. A state is bound only to that to which it has expressed intention to bind itself.3 As will be seen, this chapter argues that the very taproot of treaty interpretation is the objective establishment of the intentions of the parties. This is closely bound up with the whole nature of what is a treaty obligation. The Permanent Court of International Justice gave expression to this (obvious but nonetheless important) insight when it held, in Free Zones of Upper Savoy and the District of Gex, that no obligations ensuing from a treaty instrument can bind a state without the state’s consent.4 Similarly, in F Berman, ‘International Treaties and British Statutes’ (2005) 26 SLR 1, 3. Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331; (1969) 8 ILM 679, Art 2(b), Art 11, Art 12, Art 13, Art 14, Art 15, Art 17, Art 18(b), Art 20(4)(c), Art 20(5), Art 23(2), Art 24(2), Art 46(1), Art 48(1), Art 49, Art 50, Art 51, Art 65(1), and Art 69(4). See S Rosenne, ‘“Consent” and Related Words in the Codified Law of Treaties’ in Mélanges offerts à Charles Rousseau: La comunauté international (Pedone, 1974), 229; A Bolintineau, ‘Expression of Consent to be Bound by a Treaty in the Light of the 1969 Vienna Convention’ (1974) 68 AJIL 672; G Korontzis, ‘Making the Treaty’ in D Hollis (ed), Oxford Guide to Treaties (Oxford University Press, 2012), 196. 3 P Reuter, La Convention de Vienne du droit des traités (Armand Colin, 1971), 15–17. 4 Free Zones of Upper Savoy and the District of Gex (1932) PCIJ Series A/B No 46, 166; Interpretation of the Statute of the Memel Territory (1932) PCIJ Series A/B No 49, 313–14; Award in the Arbitration regarding the Iron Rhine (‘Ijzeren Rijn’) (Belgium v Netherlands) (2005) 27 RIAA 35, 64. 1 2

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Daimler v Argentina5 the Tribunal took as a point of departure that all international treaties—whether bilateral, plurilateral, or multilateral—are essentially expressions of the contracting states’ consent to be bound by particular legal norms: ‘Consent is therefore the cornerstone of all international treaty commitments’.6 This consent being the conceptual point of departure in the law of treaties, it is no surprise that treaty interpretation has as its main objective to establish the extent of that consent in relation to a set of facts. It will thus be argued here that it follows naturally from the pre-eminence in international law of state consent that the object of the exercise of treaty interpretation is the establishment of the intention of the parties. As will be seen, given that what is in issue is the common intention of the parties,7 that establishment needs to rely on objective factors. It is thus an ‘objectivized intention’ that is sought.8 While Chapter 2 focused on the unity and coherence of the method of treaty interpretation applied by international courts and tribunals, this chapter sets out in more detail what that method is, and how it relates to the evolutionary interpretation of treaties. The received wisdom about the approach to treaty interpretation opted for in the VCLT has been that the general rule of interpretation put paid to the notion of the ‘intention of the parties’.9 It will be argued here, however, that such an understanding of treaty interpretation does not sit comfortably with the Vienna rules nor with the jurisprudence of the International Court, not least in cases where the Court has arrived at what could be termed evolutionary interpretations. The approach which the International Court takes to treaty interpretation was foreshadowed by the jurisprudence of the Permanent Court, which held in Interpretation of the Treaty of Lausanne that a Tribunal interpreting a convention clause must: in the first place, endeavour to ascertain from the wording of this clause what the intention of the Contracting Parties was; subsequently, it may consider whether—and, if so, to what extent—factors other than the wording of the Treaty must be taken into account for this purpose.10 5 Daimler Financial Services AG v Argentine Republic, ICSID Case No ARB/05/1, 22 August 2012. 6 Daimler Financial Services AG v Argentine Republic (n 5) at [168]. 7 ILC Ybk 1964/II, 58 at [21]. 8 G Gaja, ‘Trattati internazionali’ (1999) 15 DDP 344, 355–6. 9 I Sinclair, The Vienna Convention on the Law of Treaties (2nd edn, Manchester University Press, 1984), 114–53; F Jacobs, ‘Varities of Approach to Treaty Interpretation’ (1969) 18 ICLQ 318; JM Sorel and V Boré Eveno, ‘Article 31’ in O Corten and P Klein (eds), The Vienna Convention on the Law of Treaties: A Commentary (Oxford University Press, 2011), 804–37; R Kolb, Interprétation et création du droit international. Esquisse d’une herméneutique juridique moderne pour le droit international public (Bruylant, 2006); S Sur, L’ interprétation en droit international public (LGDJ, 1974), 194; C McLachlan, ‘The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention’ (2005) 54 ICLQ 279, 291; A Orakhelashvili, The Interpretation of Acts and Rules in Public International Law (Oxford University Press, 2008), 285; I Brownlie, Principles of International Law (7th edn, Oxford University Press, 2008), 630–1. 10 Interpretation of the Treaty of Lausanne, Article 3, paragraph 2 (1925) PCIJ Ser B, No 12, 18–19. Also: Italy–United States Air Transport (Arbitration) (1965) 45 ILR 393, 408. Further: P Reuter, Introduction to the Law of Treaties (J Mico and P Haggenmacher tr, Paul Kegan International, 1995), 24.

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It is important to remember, however, that the rules of treaty interpertation are ‘a single set of rules of interpretation’;11 they are in principle to be applied ‘simultaneously’.12 This approach has aptly been summarized by former President of the International Court, Gilbert Guillaume: The ICJ’s main canon of interpretation focuses on the parties’ intention. It decrypts such intentions by having recourse to the methods and tools enumerated in the Vienna Convention, most notably in Articles 31 and 32. Although such methods potentially cover a broad range of legal references, the ICJ refers first to the actual terms of the treaty, but always considers them in their context and in the light of the object and purpose of the treaty.13

Thus, in Namibia, the International Court referred to ‘the primary necessity of interpreting an instrument in accordance with the intentions of the parties’,14 and used this as a basis on which to make its evolutionary interpretation of the treaty terms at issue. The same was the case in Aegean Sea,15 Gabčíkovo–Nagymaros,16 Navigational Rights,17 and Pulp Mills,18 the International Court arriving at an evolutionary interpretation of the instrument at issue specifically by stressing the importance, within the law of treaties, of the intentions of the parties. As is clear from this selection of cases (ranging from the traité-contrat in Navigational Rights to the traité-loi in Namibia),19 this approach is taken by the Court regardless of the type of treaty to be interpreted.20 It will be argued here that the search for the intention of the parties, objectively defined, is the very aim of the process set out in Articles 31–33 of the VCLT. The R Gardiner, Treaty Interpretation (paperback edn, Oxford University Press, 2011), 5. Reuter, Introduction to the Law of Treaties (n 10), 96–7. G Guillaume, ‘Methods and Practice of Treaty Interpretation by the International Court of Justice’ in G Sacerdoti, A Yanovich, and J Bohanes (eds), The WTO at Ten: The Contribution of the Dispute Settlement System (Cambridge University Press, 2006), 472–3. 14 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) [1971] ICJ Rep 16, 35 at [53]. Also: Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening) (Judgment) [2002] ICJ Rep 303, 346 (‘the Court must seek to ascertain the intention of the parties’). 15 Aegean Sea Continental Shelf [1978] ICJ Rep 3, 32 at [77]. 16 Gabčíkovo–Nagymaros Project (Hungary/Slovakia) (Judgment) [1997] ICJ Rep 7, 78–9 at [142]. 17 Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) (Judgment) [2009] ICJ Rep 213, 242 at [63]. 18 Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) [2010] ICJ Rep 14, 83 at [204]. 19 See, on these concepts, Ch 2.2. 20 V Gowlland-Debbas, ‘The Role of the International Court of Justice in the Development of the Contemporary Law of Treaties’ in CJ Tams and J Sloan (eds), The Development of International Law by the International Court of Justice (Oxford University Press, 2013), 35–7. Also: Young Loan Arbitration (1980) 59 ILR 494, 531 at [18]–[19]; Dispute concerning Filleting within the Gulf of St Lawrence (‘La Bretagne’) (Canada/France) (1986) 82 ILR 591, 659–60; Case Concerning the Delimitation of the Maritime Boundary between Guinea-Bissau and Senegal (Guinea-Bissau v Senegal) (1989) 10 RIAA 119, 152 at [85]; Iron Rhine (Belgium v Netherlands) (n 4), 65 and 73. See ILC Draft Conclusions on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties 2013, ILC Report 2013 UN Doc A/68/10, 26 at [7]‌(‘In the Iron Rhine case the continued viability and effectiveness of a multi-dimensional crossborder railway arrangement was an important reason for the Tribunal to accept that even rather technical rules may have to be given an evolutive interpretation’). 11

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Vienna rules, in the words of the International Law Commission (ILC), codify ‘the means of interpretation admissible for ascertaining the intention of the parties’.21 The best way in which to explain evolutionary interpretation is to rely on the most traditional of concepts in the law of treaties—the intention of the parties. There are good reasons, however, for treating assumptions regarding treaty interpretation with some care. Lowe has warned that ‘treaty interpretation is an area in which the returns on abstract theorizing are low, and diminishing’.22 On this view the rule ‘interpret the treaty as reasonable parties would have interpreted it if they had faced the questions now before the court’23 is as good a distillation as any. Perhaps we are wrong therefore to make too much of the methodological questions bearing upon treaty interpretation? In respect of the evolutionary interpretation of treaties we can, however, take heart from the fact that the single issue which Lowe sees as eluding oversimplification is the settlement of ‘questions that the parties could not have foreseen, such as the question whether a reference to disputes over “territory” in an early twentieth-century treaty should be interpreted so as to include the continental shelf of a State—a legal concept that did not come into existence until the middle of that century’.24 As will be seen, in this Chapter and in Chapter 4, this is very much the territory of the evolutionary interpretation of treaties. Yet another possible ground for restraint, however, is that questions of treaty interpretation are notoriously difficult. What is clear is that some questions of interpretation seem so elusive as to be beyond resolution—hence McNair’s oft-quoted assertion that ‘there is no part of the law of treaties which the text writer approaches with more trepidation than the question of interpretation’.25 But we should not be deterred, if for no other reason than that difficult questions, too, need an answer. Rather we should, in the mode of Beckett’s Worstward Ho, ‘Try Again. Fail again. Fail better’.26 In that spirit it is appropriate to begin by defining the terms. In this book, the words ‘evolutionary interpretation’ are taken to mean situations in which an international court or Tribunal concludes that a treaty term is capable of evolving, that it is not fixed once and for all, so that allowance is made for, among other things, developments in international law. This is, in other words, a situation where account is taken of the meaning acquired by the treaty terms when the treaty is applied.27 Some writers have taken a narrow, and very nearly subjective, approach to the concept. Classically, Basdevant’s Dictionnaire de le terminologie du droit international defined ‘intention’ as ‘ce que l’auteur ou les auteurs d’un acte ont eu réellement en vue de convenir, de faire, d’obtenir ou d’éviter, que cela soit révélé par

ILC Ybk 1966/II, 218–19. Also: ILC Ybk 1964/II, 58 at [21]. V Lowe, International Law (Oxford University Press, 2007), 74. A Aust, Modern Treaty Law and Practice (3rd edn, Cambridge University Press, 2013), 222. 24 Lowe, International Law (n 22), 74. Also: Aust, Modern Treaty Law and Practice (n 23), 216–17. 25 AD McNair, The Law of Treaties (2nd edn, Oxford University Press, 1961), 392. 26 S Beckett, ‘Worstward Ho’ in Nohow On (Calder, 1992), 101. 27 Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) (n 17), 242 at [63]. 21

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l’acte lui-même ou par d’autres éléments’.28 Salmon’s more recent Dictionnaire de droit international public defines intention as ‘pensée ou ensemble des pensées qui ont inspiré les parties’, ‘notamment le but qu’elles se sont proposé de poursuivre’.29 On this approach, the intention of the parties is not just a thought shared by them; it can be a set of thoughts that inspired them in their conclusion of the treaty. As is clear from the last element pointed to by the definition given in Salmon’s Dictionnaire de droit international public, it is not unreasonable to conceive of this set of thoughts inspiring the treaty parties as an object which they have proposed to seek to attain by concluding the convention. One thing is clear from international jurisprudence, however, and that is that what we are talking about is not an intention held by one of the parties only. A treaty will by definition involve the consent of more than just one state. In issue, therefore, is the objective etablishment of the common intention of the parties. Judge Schwebel made this point in Maritime Delimitation and Territorial Questions: ‘The intention of the parties’, in law, refers to the common intention of both parties. It does not refer to the singular intention of each party which is unshared by the other. To speak of ‘the’ intention of ‘the parties’ as meaning diverse intentions of each party would be oxymoronic.30

The ILC has taken the same line in its work on the law of treaties. The intention to be established is ‘not a separately identifiable original will, and the travaux préparatoires are not the primary basis for determining the presumed intention of the parties’;31 the travaux préparatoires are simply evidence to be weighed against any other relevant evidence of the intentions of the parties, and ‘their cogency depends on the extent to which they furnish proof of the common understanding of the parties as to the meaning attached to the terms of the treaty’.32 What is central therefore, as the International Court put it in a slightly different context, is a ‘meeting of minds’.33 It could reasonably be asked how one goes about establishing this meeting of minds. In principle one may ascertain the meeting of minds which makes up the common intention of the parties, or their common will,34 by analysing all the different interpretive factors which, according to the 28 J Basdevant (ed), Dictionnaire de la terminologie du droit international (Sirey, 1960) ‘intention’. Also: C Calvo, Dictionnaire de droit international public et privé (Pedone, 1885), 400. 29 J Salmon (ed), Dictionnaire de droit international public (Bruylant, 2001), ‘intention’. 30 Dissenting Opinion of Judge Schwebel in Maritime Delimitation and Territorial Questions [1994] ICJ Rep 6, 27. Also: EC—Computer Equipment, Report of the Appeallate Body WT/DS62/ AB/R; WT/DS67/AB/R; WT/DS68/AB/R [84]: ‘The purpose of treaty interpretation under Article 31 of the Vienna Convention is to ascertain the common intentions of the parties. These common intentions cannot be ascertained on the basis of the subjective and unilaterally determined “expectations” of one of the parties to a treaty.’ 31 Draft Report of the International Law Commission on the Work of Its Sixty-Fifth Session A/ 32 CN.4/L.819/Add.1, 18. ILC YBK 1964/II, 58. 33 Lands, Island and Maritime Frontier Dispute (Judgment) [1992] ICJ 351, 585 at [378]. Also: The Borchgrave Case (Preliminary Objections) PCIJ (1937) Series A/B No 72, 163. 34 Argentina/Chile Frontier Case (Palena) (1966) 16 RIAA 109, 174; (1966) 38 ILR 10, 89; Decision regarding delimitation of the border between Eritrea and Ethiopia (2002) 25 RIAA 83, 110; (2002) 130 ILR 1, 34 at [3.4].

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established method of interpretation, the treaty interpreter may take into account. The International Court stated in Navigational Rights that a treaty provision must be interpreted ‘in accordance with the intentions of its authors as reflected by the text of the treaty and the other relevant factors in terms of interpretation’.35 These are the factors set out by the general rule of interpretation, as codified in Article 31 of the VCLT. The Tribunal in Palena made the important point that the intention of the parties may certainly be found outside the treaty text. In a discussion of the difference between interpretation of judgments and of treaties it observed, with respect to the latter, that in establishing the common will of the parties: ‘it may be helpful to seek evidence of that common will either in preparatory documents or even in subsequent actions of the Parties’.36 Thus treaty interpretation, according to the practice of international courts and tribunals, is ‘a logical operation that seeks to establish with the maximum possible certainty what the common intention of the Parties was’.37 This begs one important question, which will nonetheless help us in arriving at a working definition of ‘the intentions of the parties’: on what level of abstraction are the parties to be understood to have wanted to bind themselves in relation to later questions of fact that are to be subsumed under the treaty? Dworkin, in the context of statutory and constitutional interpretation in the United States, says about the intention of Congress or of the framers of the US Constitution that we must distinguish between ‘different levels of abstraction at which we might describe that intention’.38 He draws up the example of a congressman who votes for an amendment requiring ‘equal protection’ because he believes that government ought to treat people as equals, and that this must mean treating them differently with respect to their fundamental interests. The congressman believes that the clause for which he is voting would be violated by criminal Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) (n 17), 237. Argentina/Chile Frontier Case (Palena) (n 34), 89. Also: M Sørensen, Les sources du droit international: Étude sur la jurisprudence de la Cour permanente international de justice (Einar Munksgaard, 1946), 214–15; JD Mortenson, ‘The Travaux of Travaux: Is the Vienna Convention Hostile to Drafting History?’ (2013) 107 AJIL 780; G Nolte, ‘Introductory Report of the Study Group on Treaties over Time’ in G Nolte (ed), Treaties and Subsequent Practice (Oxford University Press, 2013). 37 Interpretation of the Air Transport Services Agreement between the United States of America and France (1963) 16 RIAA 5, 47; (1963) 38 ILR 182, 229. Also: Lighthouses Case between France and Greece (1934) PCIJ Series A/B No 62, 13 and 18; Reservations to the Convention on Genocide (Advisory Opinion) [1951] ICJ Rep 15, 23; Case of Certain Norwegian Loans (Judgment) [1957] ICJ Rep 9, 23 and 27; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) (n 14), 35 at [53]; Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) (n 12), 237 at [48]; Argentina/Chile Frontier Case (Palena) (n 27), 89; Decision regarding delimitation of the border between Eritrea and Ethiopia (n 34), 34 at [3.4]; Tax regime governing pensions paid to retired UNESCO officials residing in France (France v UNESCO) (2003) 25 RIAA 231, 248; China—Audiovisual Entertainment Products, Report of the Appeallate Body WT/DS363/AB/R at [405]; US—Gambling Report of the Appellate Body WT/DS363/AB/R at [84]; EC—Computer Equipment, Report of the Appeallate Body WT/DS62/AB/R; WT/DS67/AB/R; WT/DS68/AB/R at [84]. 38 R Dworkin, A Matter of Principle (Harvard University Press, 1985), 48. 35

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laws providing different penalties for black and whites guilty of the same crime, as he believes that liability to punishment touches a fundamental interest. He also believes, however, that separate and unequal public schools would not violate the clause, as he does not consider education to be a fundamental interest. Dworkin here distinguishes an abstract and concrete formulation of the congressman’s intention. Under the abstract formulation the intention is that whatever is in fact a fundamental interest must be protected, so that if a court is itself convinced that education is (or has become) a fundamental interest then that court must believe it is serving his intention by outlawing segregation. Under the concrete formulation, however, his intention is to protect what he himself understands to be a fundamental interest, and a court that abolishes segregation opposes rather than serves his intention. It would rarely be the case, however, that a congressman or treaty party has only one of these two types of intention when he enacts legislation or drafts a treaty. Both statements about his or her intention may be true, though at different levels of abstraction, so that the question is not which statement is historically accurate but which statement to use in constructing a conception of intention.39 Letsas has applied this Dworkinian distinction to treaty interpretation. In the context of interpretation of the European Convention on Human Rights (ECHR)40 Letsas has argued that the drafters of the European Convention in 1950 had an abstract intention to promote and safeguard human rights in Europe and that they also had a more concrete intention about which situations such human rights ought to cover. Which intention, he asks, is the more important: their intention to protect a list of fundamental freedoms of their citizens, whatever these may be (what he terms ‘intentions of principle’), or their intention to protect what they, in 1950, believed these freedoms to be (what he terms ‘intentions of detail’)? Letsas replies that it is possible that the drafters felt more strongly about their abstract intention to protect the fundamental moral rights that people are indeed entitled to rather than their concrete intention to protect those rights to which they, in 1950, believed individuals are morally entitled. In this regard the question is not whether states’ (or drafters’) intentions are relevant but which of their intentions we ought to accord importance to.41 This book follows Dworkin and Letsas in assuming that abstract intentions must be more important than concrete ones, and that intentions of principle ought to trump intentions of detail. This seems to fit well with that which Judge Higgins said in Kasikili/Sedudu, where she held that the object of treaty interpretation ‘is not to discover a mythical “ordinary meaning” within Dworkin, A Matter of Principle (n 38), 48–50. Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 222. 41 G Letsas, A Theory of Interpretation of the European Convention on Human Rights (Oxford University Press, 2007), 70. Letsas goes on, however, to state that: ‘any theory of interpretation for the ECHR (or any international treaty) must at some stage stand outside drafters’ intentions and provide a normative justification based on values of political morality’. This idea captures, he says, ‘the spirit of arts 31–32 VCLT. We cannot know whether (and the extent to which) drafters’ intentions are relevant unless we settle first on the object and purpose of the treaty’. As will become clear, this study does not share that view of Arts 31–32 of the VCLT and more broadly of the role of the intention of the parties. 39

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the Treaty’; rather the object of this exercise is ‘to give flesh to the intention of the parties’, ‘to decide what general idea the parties had in mind, and then make reality of that general idea’.42 Thus, if we want to be true to what international courts and tribunals do, one possible way in which to define ‘the intention of the parties’ is the following functional definition: the intention of the parties could be defined as the result which one reaches if the general rule of interpretation is applied correctly. This, of course, comes close to being a petitio principii, that is, it assumes that which has to be explained. Whilst one may criticize this circular definition, it should nonetheless be retained, if for no other reason than that it is also the best definition which the ILC has been able to produce. The concepts of the intention of the parties, according to the ILC, ‘refers to the intention of the parties as determined through the application of the various means of interpretation which are recognized in articles 31 and 32’;43 it ‘is thus not a separately identifiable original will, and the travaux préparatoires are not the primary basis for determining the presumed intention of the parties’.44 ‘Intention’ is thus a construct to be derived from the articulation of the ‘means of interpretation admissible’45 in the process of interpretation—and not a separately identifiable factor. This objective approach is probably, to appropriate Churchill’s quip about democracy,46 the worst one, except all those others that have been proffered. This Chapter now turns, first, to good faith and its relation to evolutionary interpretation; secondly, it sets out the establishment of the common intentions of the parties and the meaning of that for evolutionary interpretation.

3.2 Evolutionary Interpretation and Good Faith It is difficult to overstate the importance of good faith in treaty interpretation generally; this is no less so with respect to evolutionary interpretation. The possible styles of interpretation to which Article 31 gives rise are all directly linked to one essential rule: the rule of interpretation in good faith. It may be that in formulating the general rule of interpretation Article 31 engages to some extent in over-simplification, as the provision is capable of giving rise to a number of different 42 Declaration of Judge Higgins in Kasikili/Sedudu Island (Botswana/Namibia) (Judgment) [1999] ICJ Rep 1045, 1114. Also: R Higgins, ‘Some Observations on the Inter-Temporal Rule in International Law’ in Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Krzystof Skubiszewski (Kluwer, 1996), 181. Further: H Waldock, United Nations Conference on the Law of Treaties: Official Records, First Session, Vienna, 1968: Summary Records 184 at [70]. 43 Draft Report of the International Law Commission on the Work of Its Sixty-Fifth Session (n 31), 17–18. 44 Draft Report of the International Law Commission on the Work of Its Sixty-Fifth Session (n 31), 18. 45 ILC Ybk 1966/II, 218–19. 46 See W Churchill, House of Commons Speech, 11 November 1947 (‘Democracy is the worst form of government, except for all those other forms that have been tried from time to time’).

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styles of interpretation. Nonetheless, it is clear that the possible styles of interpretation to which Article 31 gives rise are all directly linked to one essential rule: the rule of interpretation in good faith.47 Good faith is at the origins of the diverse means of interpretation, and it is as a function of this fundamental rule that the choice of how to weigh the interpretive factors must be made.48 The evolution of treaty concepts—and the limits within which terms may properly be implied in a treaty as necessarily inherent in the instrument—is to be considered as covered by the requirement of interpretation in good faith. Thus Waldock said of the evolution of treaty concepts, and the limits within which terms may properly be implied in a treaty as necessarily inherent in it, that ‘both these points are to be considered as covered by the requirement of interpretation “in good faith” ’.49 With regard to both these points, so much depends on the particular context and on the intentions of the parties in the particular treaty that it would be difficult to lay down any specific rules. These questions can be resolved only through the normal interpretation of the terms of the treaty in good faith in the light of its object and purpose.50 The International Law Commission considered that the ‘correct application of the temporal element would normally be indicated by interpretation of the term in good faith’.51 The view will be taken here too that evolutionary interpretation must be seen as being closely linked to the principle of good faith: evolutionary interpretation may be required by good faith.52 This is a potentially important point, as the limits to interpretation drawn by the ordinary meaning of the words interpreted in good faith is often relied on as an argument against evolutionary interpretation. The view taken here therefore stands that perspective on its head by showing the potential that lies in good faith as a factor leading to evolutionary interpretation. An important facet of this is the relationship between good faith and legitimate expectations, and what this entails for evolutionary interpretation. Evolutionary interpretation may be explained through the principle of good faith because of the legitimate expectations engendered by the promises which the parties made in the treaty. In this sense we can safely take as applying to treaty obligations in general that which the International Court held in a more specific context (about provisions of so-called host agreements between international organizations and host states) in WHO Regional Office: ‘Clearly, these provisions’, said the Court, ‘are based on an obligation to act in good faith and have reasonable regard to the interests of the other party to the treaty’.53 P Daillier, M Forteau, and A Pellet, Droit international public (8th edn, LGDJ, 2009), 283. Daillier, Forteau, and Pellet, Droit international public (n 47), 283 H Waldock, ‘The Effectiveness of the System Set up by the European Convention on Human Rights’ (1980) 1 HRLJ 1, 3. 50 Waldock, ‘The Effectiveness of the System Set up by the European Convention on Human Rights’ (n 49), 1–4. 51 ILC Ybk 1966/II, 222. 52 J Christoffersen, Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights (Martinus Nijhoff, 2009), 54. 53 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt [1980] ICJ Rep 73, 95 at [47]. 47

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The principle makes its influence felt in all areas of international law. The Charter of the United Nations54 provides, in Article 2(2), that all members, in order to ensure to all of them the rights and benefits resulting from membership, ‘shall fulfil in good faith the obligations assumed by them in accordance with the present Charter’. The Declaration on Principles on International Law Concerning Friendly Relations and Co-operation Among Sates in Accordance with the Charter of the United Nations55 goes further, adopting ‘the principle that States shall fulfill in good faith the obligations assumed by them in accordance with the Charter’, not, it will be seen, ‘under’ the Charter but ‘in accordance with the Charter’.56 It plays an important role, too, in state contracts;57 ‘foreign investment agreements freely entered into by, or between, sovereign States shall be observed in good faith’.58 Good faith in this way acts as a guarantor of expectations legitimately held by the parties to the treaty; treaties must thus be interpreted in conformity with loyalty and reciprocal confidence.59 It is, as will be seen in more detail later in this chapter, obvious that at times it would be contrary to good faith to frustrate the legitimate expectations created by treaty obligations, and this applies with no less force to evolutionary interpretation too. Thus, in Loizidou (Preliminary Objections), Turkey had argued that good faith required a contemporaneous, as opposed to an evolutionary, interpretation. The European Court rejected this, however, holding instead that the elements of the general rule of interpretation, of which good faith is one, required in the event an evolutionary interpretation.60 It is, as the Tribunal held in the North Atlantic Fisheries case, a principle of international law ‘that treaty obligations are to be executed in perfect good faith’.61 In the same vein, the International Court said in Nuclear Tests that: ‘One of the basic principles governing the creation and performance of legal obligations, whatever their source,

Charter of the United Nations, 26 June 1945, 892 UNTS 119. Resolution 2625 (XXV), 24 October 1970. 56 Lowe, International Law (n 22), 116–18. 57 C Greenwood, ‘State Contracts in International Law’ (1982) 53 BYIL 27, 42. 58 Resolution 1803 (XVII), 14 December 1962. 59 R Kolb, La bonne foi en droit international public: Contribution à l’ étude des principes généraux de droit (Presses Universitaires de France, 2000), 274–5. 60 Loizidou v Turkey (Preliminary Objections) (1995) 103 ILR 622, 644–9. 61 North Atlantic Fisheries (Great Britain v United States) (1910) 11 RIAA 167, 188. See also Land and Maritime Boundary between Cameroon and Nigeria (Preliminary Objections) (Judgment) [1998] ICJ Rep 275, 296 (which cites North Atlantic Fisheries); Factory at Chorzow (Merits) (Judgment No 13) (1928) PCIJ Series A No 17, 30; Certain German Interests in Polish Upper Silesia (Merits) (1926) PCIJ Series A No 7, 4, 30 (French version only); Free Zones of Upper Savoy and the District of Gex, Order of 6 December (1930) PCIJ Series A No 24, 12 and (1932) PCIJ Series A/B No 46, 167; Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter) (Advisory Opinion) [1948] ICJ Rep 57, 63; Rights of Nationals of the United States of America in Morocco (Judgment) [1952] ICJ Rep 212; Fisheries Jurisdiction (Federal Republic of Germany v Iceland) (Jurisdiction of the Court) (Judgment) [1973] ICJ Rep 18. See also Re Italian Special Capital Levy Duties (1949) 18 ILR 406, 407; Lighthouses Arbitration (Claim No 26) (1956) 23 ILR 342, 345; Alsing Trading Co v The Greek State (1954) 23 ILR 633, 635; Interpretation of Article 78(7) of the Peace Treaty with Italy 1947 (Franco–Ethiopian Railway Co claim) (1956) 24 ILR 602, 626; Pertusola claim (1951) 18 ILR 414, 419. 54 55

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is the principle of good faith.’62 This has later been affirmed and developed by the International Court. In Pulp Mills it held that: according to customary international law, as reflected in Article 26 of the 1969 Vienna Convention on the Law of Treaties, ‘[e]‌very treaty in force is binding upon the parties to it and must be performed by them in good faith’. That applies to all obligations established by a treaty, including procedural obligations which are essential to co-operation between States.63

Obviously there is a connection between the obligation upon states, on the one hand, to create and perform their legal obligations and, on the other hand, to interpret the same legal obligations, as creation, interpretation, and performance are closely interlinked. Just as interpretation depends upon creation, performance depends upon interpretation. The valuable point has been made that if one thinks that the International Court seems hesitant to discuss the requirement of good faith stated at the outset of Article 31, this has a simple explanation: that which may be in question is the good faith of the parties; an interpretation by the International Court in which the Court itself should be animated by something other than good faith is not to be thought of.64 Furthermore, if the International Court should be thought to be hesitant to reject an interpretation advanced by a party on the sole ground that it was not made in good faith, that could conceivably be because such an interpretation would in most cases also offend against some specific canon of interpretation, and the Court will be slow to accuse a state in its judgment of bad faith.65 The proposition that treaties are to be interpreted in good faith has received universal acceptance in legal doctrine.66 Thus McNair, for example, said that ‘the performance of treaties is subject to an overriding obligation of mutual good faith’;67 Reuter referred to the obligation of good faith as fundamental in international legal commerce and in the execution of all obligations of international law.68 Others have seen the notion of good faith as underpinning all the rules on treaty interpretation, even to the extent that one may say that good faith dominates the whole interpretive process.69 The import of this in the law of treaties has certainly not been lost on international courts and tribunals. Judge Schwebel, in his dissenting opinion in Maritime Delimitation and Territorial Questions (Qatar v Bahrain), referred to the good faith Nuclear Tests (Australia v France) (New Zealand v France) ICJ Rep 1974 253, 267. Pulp Mills on the River Uruguay (Argentina v Uruguay) (n 18), 14 at [145]. 64 H Thirlway, ‘The Law and Procedure of the International Court of Justice 1960–1989 Part III’ (1991) 62 BYIL 1, 17; MK Yasseen ‘L’interprétation des traités d’après la Convention de Vienne sur le droit des traités’ (1976) 15 Hague Recueil 21. 65 Thirlway, ‘Law and Procedure 1960–1989 III’ (n 64), 17–18. 66 See ME Villiger, ‘The Rules on Interpretation: Misgivings, Misunderstandings, Miscarriage? The “Crucible” Intended by the International Law Commission’ in E Cannizzaro (ed), The Law of Treaties Beyond the Vienna Convention (Oxford University Press, 2011), 108–9. 67 McNair, The Law of Treaties (n 25), 465. 68 Reuter, Introduction to the Law of Treaties (n 10), 94. 69 E Zoller, La bonne foi en droit international (Pedone, 1977), 202. 62 63

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provision in the general rule on interpretation in Article 31(1) as ‘the cardinal injunction of the Vienna Convention’s rule of interpretation’.70 The Tribunal in the Rhine Chlorides arbitration pointed to ‘the fundamental role of good faith and how it dominates the interpretation and application of the entire body of international law’.71 Lauterpacht argued that the rule that treaties are to be interpreted in accordance with good faith was perhaps the only uncontested rule of interpretation,72 and that most of the current rules of interpretation, whether in relation to contracts or treaties, are no more than the elaboration of the fundamental theme that contracts must be interpreted in good faith.73 The principle according to which interpretation must be done in good faith flows directly from the principle of pacta sunt servanda; therefore the process of examining the relevant materials and assessing them must be done in good faith.74 This, in the present context, underlines the importance we ought to accord in the interpretation of treaties to strict adherence to good faith.

3.2.1 Good faith as the cardinal rule of treaty interpretation The pride of place given to good faith specifically in Article 31 is no coincidence. As was seen above, the principle of good faith dominates and underlies the whole of the interpretive process; good faith is the most important element that goes into the crucible of treaty interpretation. The possible diverse styles of interpretation to which Article 31 gives rise are thus, as stated above, all directly linked to one essential rule: that of interpretation in good faith. In that sense most current rules of interpretation are no more than the elaboration of the fundamental theme that contracts must be interpreted in good faith.75 The point is sometimes made that although at first sight the enumeration in Article 31 of the factors to be taken into account may seem to create a hierarchy of legal norms, that is not so: the factors represent a logical progression, nothing more. While it has been claimed in the literature that the principle of good faith has not, when it comes to treaty interpretation, played an important role in the jurisprudence of international tribunals,76 the principle of good faith has in fact, and as we 70 Dissenting Opinion of Judge Schwebel in Maritime Delimitation and Territorial Questions [1994] ICJ Rep 6, 39. 71 Auditing of Accounts between the Kingdom of the Netherlands and the French Republic (Netherlands/France) (Rhine Chlorides Arbitration) (2004) 25 RIAA 267; (2004) 144 ILR 259, 292–3 at [63]. Also: RY Jennings, ‘Treaties’ in M Bedjaoudi (ed), International Law: Achievements and Prospects (Martinus Nijhoff, 1991), 146. 72 H Lauterpacht, ‘De l’interprétation des traités’ (1950) 43 Ann de l’Inst 366, 383. Also: R Bernhardt, Die Auslegung völkerrechtlicher Verträge—insbesondere in der Rechtsprechung internationaler Gerichte (Heymann, 1963), 24. 73 H Lauterpacht, ‘Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties’ (1949) 26 BYIL 48, 56. 74 Aust, Modern Treaty Law and Practice (n 23), 160–1. 75 Lauterpacht, ‘Restrictive Interpretation and the Principle of Effectiveness’ (n 73), 56. 76 Bernhardt, Auslegung völkerrechtlicher Verträge (n 72), 24. (The agreement in legal doctrine of the importance in treaty interpretation of good faith ‘steht die erstaunliche Tatsache gegenüber, daβ in der neueren Praxis, vor allem in der internationalen Gerichtspraxis, von Geboten der bona fides nur auβerordentlich selten die Rede ist’.)

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have already seen, been at the fore in the jurisprudence of international tribunals. If this body of jurisprudence shows one thing, it is that in treaty interpretation the standard of good faith is a permanent gravitation point which draws the interpretation of treaty texts in the direction of the object of the treaty as well as the spirit by which the treaty is underlain.77 The principle of good faith furthermore imposes on the international judge an obligation to adjudicate reasonably.78 The demands of good faith are thus incompatible with formalism, that is, a system whereby form prevails over substance.79 Good faith, by its nature, abhors such unreasonableness. Rivier already in the nineteenth century stressed this point: ‘La bonne foi dominant toute cette matière, les traités doivent être interprétés non pas exclusivement selon leur lettre, mais selon leur esprit’.80 The International Court held in Barcelona Traction that in all fields of international law ‘it is necessary that the law be applied reasonably’.81 In the same vein Judges Lauterpacht, Wellington Koo, and Spender in Aerial Incident of 27 July 1955 held that: It is consistent with enlightened practice and principle to apply the test of reasonableness to the international instruments—a test which follows from the ever present duty of States to act in good faith. However, the test of reasonableness must itself be applied in a reasonable way; it must not be applied by reference to contingencies which are in themselves of a manifestly exaggerated character; it must not be applied by reference to examples bordering on absurdity.82

Although good faith forbids unreasonable interpretations, and interdicts arriving at absurd constructions, the exigencies of good faith do not, however, demand that the judge adjudicate according to equity.83 As we shall see, this point is sometimes somewhat exaggerated, in a way that may end up giving to good faith a smaller ambit than what ought to follow from the sources of international law. This was developed in an interesting way by Judge ad hoc Torrez Bernandez in Land, Island and Maritime Frontier Dispute, where he made the point that when one begins to interpret a treaty one must start ‘as provided for in the Vienna Convention, that is to say from the “ordinary meaning” of the terms used in the provision’. He went on to say that this could, however, not happen in isolation:

Kolb, La bonne foi (n 59), 267. Cf U Linderfalk, On the Interpretation of Treaties: The Modern International Law as Expressed in the 1969 Vienna Convention on the Law of Treaties (Springer, 2007). 79 See generally O Corten, L’utilisation du ‘raisonnable’ par le juge international (Bruylant, 1997). 80 A Rivier, Principes du droit des gens (Rousseau, 1896) at [157]. 81 Barcelona Traction, Light and Power Co Ltd (Judgment) [1970] ICJ Rep 3, 48 at [93]. Also: Dissenting Opinion of Judge Yusuf in Whaling in the Antarctic (Australia v Japan: New Zealand Intervening) (Judgment) 31 March 2014 at [15]. 82 Joint Dissenting Opinion of Judges Lauterpacht, Wellington Koo, and Spender in Aerial Incident of 27 July 1955 (Israel v Bulgaria) (Preliminary Objections) [1959] ICJ Rep 127, 189. See eg Zoller, La bonne foi (n 69), 229; Kolb, La bonne foi (n 59), 271. 83 Zoller, La bonne foi (n 69), 203. See on the relationship between equity and good faith more generally, AV Lowe, ‘The Role of Equity in International Law’ (1989) 12 AYIL 54, 72–3; E Lauterpacht, Aspects of the Administration of International Justice (Grotius, 1991), 117–52. 77 78

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For treaty interpretation rules there is no ‘ordinary meaning’ in the abstract. That is why Article 31 of the Vienna Convention refers to ‘good faith’ . . . It is, therefore a fully qualified ‘ordinary meaning’.84

This approach must be correct,85 and it shows how in fact according to the general rule of interpretation, if one insists on the different factors mentioned in Article 31(1) being sequenced, good faith must come first, metaphorically as well as literally. The text is not capable of having a meaning divorced from the demands of good faith. This was made explicit in Rhine Chlorides, where the Tribunal commented on the oft-quoted dictum from the International Court’s judgment in Territorial Dispute that ‘interpretation must be based above all upon the text of the treaty’.86 The Tribunal said in this regard that: In the Territorial Dispute (Libyan Arab Jamahiriya/Chad) case, the Court stated that ‘interpretation must be based above all upon the text of the treaty’. In this regard, the Tribunal emphasises that the text of the treaty is a notion distinct from, and broader than, the notion of ‘terms’. Relying on the text does not mean relying solely, or mainly, on the ordinary meaning of the terms. Such a solution would effectively ignore the references to good faith, the context, and the object and purpose of the treaty. The ordinary meaning of the terms is even itself determined as a function of the context, object and purpose of the treaty. Lastly, as paragraph 2 of Article 31 of the Vienna Convention provides, the text of the treaty (including the preamble and annexes) is itself part of the context for the purposes of interpretation.87

By pointing out that the ‘text’ of the treaty is distinct from and broader than the notion of the ‘terms’ of the treaty, and that basing oneself on the text does not mean to base oneself only on the ordinary meaning of the terms, the Tribunal underscored the point that the treaty interpreter is in no way looking for an isolated meaning of the treaty terms. Such an approach would indeed be contrary to the principle of good faith as it would give pre-eminence to form over substance. This aspect of the principle of good faith has a long pedigree. It was given a vivid form in the 1926 Cayuga Indians case, where the arbitrator referred to the principle of good faith as ‘the elementary principle of justice that requires us to look at the substance and not stick in the bark of legal form’.88 The Chapter now turns to the relationship between good faith and intent.

3.2.2 Good faith impels assumption of a common intention of the parties It is plain that, as Lowe has put it, ‘in international law literal interpretations and applications of legal instruments must not be allowed to defeat the evident 84 Individual Opinion of Judge ad hoc Torres Bernárdez in Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) [1992] ICJ Rep 351, 718–19. 85 Further: Sinclair, Vienna Convention (n 9), 120–1. 86 Territorial Dispute between Libya and Chad [1994] ICJ Rep 6, 21–2 at [41]. See Ch 3.3.7. 87 Rhine Chlorides Arbitration (Netherlands/France) (n 71), 292–3 at [63]. 88 Cayuga Indians (Great Britain) v United States (1926) 6 RIAA 173, 179.

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intentions of those who made them’.89 This core injunction of international law has been interpreted as meaning that good faith incites the interpreter to search for the common intention of the parties. The Tribunal in Diverted Cargoes thus determined that ‘the principle of good faith, which governs both the interpretation and the execution of treaties, leads to the search for the common intention of the parties’.90 This was rendered by Lauterpacht as meaning that ‘the principle of good faith impels the assumption of a common purpose’; ‘good faith and consideration of the general purpose of the treaty may legitimately provide a substitute for any lack of common intention’.91 It is clear from Lauterpacht’s choice of words that that intention, by necessity, would have to be an objecticized intention. When a treaty interpreter is faced with a treaty in relation to which it is impossible to establish the intention of the parties, good faith requires the interpreter to act according to what one would imagine the common intention to have been. This type of approach has been criticized by Kolb, as this in his view would mean not interpreting but in fact revising the treaty.92 This criticism has been underpinned by reference to the traditional reticence of the International Court and its predecessor to revise treaties.93 Such criticisms are linked, as will be seen below, to the ambit which one is willing to give to the principle of good faith. It is pertinent here to address this criticism in some detail. While it is of course true that international tribunals exercise great reticence when it comes to revising treaties,94 and no doubt rightly so, it is difficult to see the justification of this criticism of good faith applied in the search for a common intention of parties. First, it is not clear that the approach suggested above (that the principle of good faith impels the assumption of a common purpose) would amount to treaty revision. If, as this book argues, treaty interpretation is concerned first and foremost to establish, objectively, that which the parties actually intended, or their common will,95 then the approach suggested, on the basis of good faith, seems the only possible option. Indeed, the matter could be turned on its head: straying away from that which must be taken to have been the intention of the parties would be the option the most resembling revision of the treaty. To state this is in reality to state little more than Lowe, International Law (n 22), 117. Diverted Cargoes Case (Greece v United Kingdom) (1955) 12 RIAA 53, 70 (‘le principe fondamental de la bonne foi qui régit, soit l’interprétation, soit l’exécution des conventions et incite à rechercher la commune intention des États contractants’). 91 H Lauterpacht, International Law—Collected Papers IV (Cambridge University Press, 1978), 437–8. 92 Kolb, La bonne foi (n 59), 275. 93 See Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter) (Advisory Opinion) [1962] ICJ Rep 151, 159; South West Africa (Second Phase) (Judgment) [1966] ICJ Rep 6, 48; Interpretation of Peace Treaties (Second Phase) (Advisory Opinion) [1950] ICJ Rep 221, 229; Rights of Nationals of the United States of America in Morocco (France v United States of America) (n 61), 196. 94 Boundary Dispute between Argentina and Chile Concerning the Delimitation of the Frontier Line between Boundary Post 62 and Mount Fitzroy (1994) 22 RIAA 3, 25; (1994) 113 ILR 1, 45 at [75]. 95 See Lighthouses Case between France and Greece (n 37), 13 and 18; Interpretation of the Air Transport Services Agreement between the United States of America and France (n 37), 229; Decision regarding delimitation of the border between Eritrea and Ethiopia (n 34), 34 at [3.4]. 89

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what was said above: that good faith requires one to look not so much at the letter of the treaty as to the treaty’s spirit, which of course is nothing if not underlain by the intention of the parties. Secondly, and following from the first point, if it is not accepted that this (ie the broader approach taken by international courts and tribunals to good faith) ought to be seen as treaty revision, then there is little that suggests that the practice of the International Court and its predecessor have been reticent in this regard, as the cases mentioned by Kolb all bear on the impossibility of treaty revision in general and not specifically in relation to the point of how good faith impels the assumption of a common purpose where none seems to be found. The principle of good faith, taken together with a treaty’s object and purpose, may in a legitimate way provide a substitute for what seems to be a lack of common intention. When the principle of good faith impels the assumption of a common purpose, it relies also on the fact that the intention of the parties is to be presumed not to be in breach of other international law; to assume anything else (without any clear indications to the contrary) would be a breach of good faith.

3.2.3 ‘If we want things to stay as they are, things will have to change’ This has a side to a related point, namely, the conservatism that is inherent in good faith and the good faith requirement of protecting legitimate expectations. As the Tribunal in Rann of Kutch observed in connection with good faith and the stability required in interstate commerce: ‘International public policy requires that there should be stability and good faith between nations.’96 The proposition could just as well have been put the other way around: good faith requires, in international law, there to be stability, in the sense of protection against the frustration of legitimate expectations. Thus, in Affaire relative à l’ interprétation du traité de commerce conclu entre l’Italie et la Suisse le 13 juillet 1904,97 the Tribunal decided the whole treaty dispute on the basis of the good faith requirement of protecting legitimate expectations: As Italy at no point had remonstrated with that which Switzerland understood to be the common understanding of the treaty term ‘vin nouveau’, a legitimate expectation had been created on Switzerland’s part which could not be frustrated by Italy, the latter having thus bound itself by its subsequent practice.98 It is on this background not difficult to see the frontiers which the principle of good faith in treaty interpretation shares with teleology and with effectiveness.

96 The Indo–Pakistan Western Boundary (Rann of Kutch) Case (India v Pakistan) (1976) 50 ILR 1, 104. 97 Affaire relative à l’ interprétation du traité de commerce conclu entre l’Italie et la Suisse le 13 juillet 1904 (Italie/Suisse) (1911) 11 RIAA 257. 98 Affaire relative à l’ interprétation du traité de commerce conclu entre l’Italie et la Suisse le 13 juillet 1904 (n 97), 262. Also: Affaire de l’ indemnité russe (Russie/Turquie) (1912) 11 RIAA 421, 446; Pertosula Claim (1951) 18 ILR 414, 419–23; Anglo–Iranian Oil Co Case (Jurisdiction) (Judgment) [1952] ICJ Rep 93, 107.

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The nexus between teleology and effectiveness on the one hand and good faith on the other was clearly brought out in the arbitral award Baer.99 This case also goes some way in addressing the point discussed above about what the treaty interpreter is to do in the prima facie absence of a common intention of the parties on a particular question. The Tribunal in Baer had to decide whether the claimant had been treated as an enemy under the laws in force in Italy during World War II. Italy claimed that the laws of the Italian Social Republic, Benito Mussolini’s Republic of Salò, did not count as ‘law in force in Italy during the war’, the effects of which was that the claimant, a Jewish Italian national (later to become a US national), whose factory had been confiscated, was not entitled to receive compensation for the war damages suffered by him. The Tribunal did not accept this claim by Italy, which it found to be in bad faith. The interpretation proposed by Italy would have led to introducing into the treaty ‘a restriction which is not to be found therein and which would altogether change the very text thereof’; this would breach, the Tribunal continued, ‘the fundamental rules of the Law of Nations on the art of interpreting international treaties’.100 It went on to say that a teleological interpretation would not lead to a different conclusion, as the purpose of the treaty had been that of according the benefits of the Treaty of Peace to persons whose property, rights, and interests sustained damages under the laws in force in Italy during the war. Seeing as the treaty did not indicate by which Italian power these laws were to have been enacted, ‘this gap must be filled’, the Tribunal concluded, ‘in accordance with good faith and in the light of the principles of international law; the principle that must be applied in the instant case is that of effectiveness’.101 As will be seen, the way in which the Tribunal in Baer filled this gap is very much in line with the position taken in this study: the principle of good faith impels, together with the background principles of international law, a common intention of the parties. It is moreover no coincidence that the Tribunal also in this connection found support in the principle of effectiveness. Good faith comprises the principle of effectiveness.102 The role given in Baer to good faith interpretation, as well as the effective interpretation to which this led, has however been criticized. This criticism addresses the debate entered into above—the role of the principle of good faith in filling in gaps where there is said to be no common purpose. Thus Zoller has argued that the role played by good faith in Baer went much further than merely aiding in shedding light on the intention of the parties; good faith instead filled a gap where there was said to be no common intention of the parties. Seeing as good faith here plays a creative role, we are, on Zoller’s reading, really dealing with equity rather than good faith interpretation. She therefore argues that Baer ought to be seen as 100 Baer (1959) 14 RIAA 402. Baer (n 99), 405–6. Baer (n 99), 406 (internal references and inverted commas omitted). 102 A Clapham, Brierly’s Law of Nations: An Introduction to the Role of International Law in International Relations (7th edn, Oxford University Press, 2012), 354; Jennings, ‘Treaties’ (n 71), 145. 99

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having been decided on a particular set of facts, and that the case cannot be seen as contributing to the development of general rules of interpretation.103 This criticism of the Tribunal’s judgment in Baer may come across as precipitate. While it will not be attempted here to theorize on the basis of this single judgment by the Tribunal of the Italian–United States Conciliation Commission, it should be pointed out that Zoller’s criticisms seem ill founded given both the general importance which the principle of good faith enjoys in international law and the particular application which was made of the principle in Baer. Furthermore, the wording of the treaty provision in issue was perfectly capable of accommodating the adopted interpretation; in fact it would seem to be to go against the wording if such an interpretation were not to be adopted. It was plain enough that the object and purpose of the provision to be interpreted was to give effective protection to individuals, and that the interpretation which it seems that Zoller is advocating would fail to do so. It is true as the Tribunal implicitly said, that not to view the laws of the Social Italian Republic as ‘law in force in Italy during the war’, would in effect be to revise the treaty, and this of course the Tribunal was not competent to do. It may seem supererogatory to say so, but it should be pointed out that it is not only when it comes to giving rights to an individual (to the detriment of the state, so to speak), that a treaty interpreter may not revise the treaty before them; by the same token the same applies when a state, in bad faith as was the case in Baer, asks the interpreter to revise the treaty by giving an interpretation that (to the detriment of the individual, so to speak) renders the rights protection nugatory.104 This should perhaps be seen in relation to a broader point made by Zoller, namely that the role of good faith has been seen to have what she calls a conservative function. Zoller has propounded the thesis that the demands of good faith most usually leads the treaty interpreter to maintain an equilibrium between the obligations of the parties. Thus, she maintains, good faith has a conservative function, in the sense that it stabilizes legal situations.105 On the one hand, it is obviously true that this is the function of good faith: as discussed above the principle of good faith protects legitimate expectations and in that way plainly has a conservative function. By conservative I here mean cautious towards or averse to change, aiming to preserve where it is possible. Here too it seems appropriate to refer to that which the Tribunal said about good faith in Kutch of Rann: Zoller, La bonne foi (n 69), 235–6. This was classically expounded by the Permanent Court in Acquisition of Polish Nationality PCIJ (1923) Series B No 7, 7, 20, to which the Tribunal in Baer also made reference, where the Permanent Court declined to follow the bad-faith interpretation suggested by Poland as to who was Polish for the purposes of Art 4(1) of the Treaty of 28 June 1919 between the Principal Allied and Associated Powers and Poland. The Court held that: ‘The Court’s task is clearly defined. Having before it a clause which leaves little to be desired in the nature of clearness, it is bound to apply this clause as it stands, without considering whether other provisions might with advantage have been added to or substituted for it. . . . To impose an additional condition for the acquisition of Polish nationality, a condition not provided for in the Treaty of June 28th, 1919, would be equivalent not to interpreting the Treaty, but to reconstructing it.’ See Ch 1. 105 Zoller, La bonne foi (n 69), 238. 103

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International public policy requires that there should be stability and good faith between nations. It is not good, it is not right, it is bad faith when one party, having acted in one way throughout, at some later stage says, ‘By error or otherwise I claim to go back upon it’.106

On the other hand, the proposition that good faith has a conservative function must not be taken to mean that good faith counsels conservatism in the crudest sense of that concept. For what is ‘conservative’ and what does the protection of legitimately held expectations mean when it was the commonly held and good-faith intention of the parties to contract in a way that was open to development? Surely then it would go against good faith, and also go against a conservative approach, somehow to conclude that one should not include in the meaning of the treaty term changes which have occurred since the treaty was concluded. In such a case it becomes clear that to conserve is to allow for change. The wily Tancredi, in di Lampedusa’s The Leopard, gave expression to the complex relation which exists between change and conservation, when he quipped that it is sometimes the case that: ‘If we want things to stay as they are, things will have to change’.107 This captures what happens when the phenomena of good faith and evolutionary interpretation meet.

3.2.4 Good-faith conservatism in practice In the same mode the International Court in Navigational Rights said of interpretation for the purposes of treaty interpretation and compliance in good faith that: It is true that the terms used in a treaty must be interpreted in light of what is determined to have been the parties’ common intention, which is, by definition, contemporaneous with the treaty’s conclusion. That may lead a court seised of a dispute, or the parties themselves, when they seek to determine the meaning of a treaty for purposes of good-faith compliance with it, to ascertain the meaning a term had when the treaty was drafted, since doing so can shed light on the parties’ common intention.108

It went on to hold that this did not, however, signify that, where a treaty term’s meaning is no longer the same as it was at the date of conclusion, no account should ever be taken of its meaning at the time when the treaty is to be interpreted for purposes of applying it.109 Good faith—or what the Court called the determination of ‘the meaning of a treaty for purposes of good-faith compliance with it’—may steer the interpretation away from what could be termed wrong-footed conservatism. The right type of conservative approach, the one taken by the International Court in Navigational Rights, is conservative in the sense that it acknowledges that for things to stay as they were (in light of what is determined, on the basis of good faith, to have been the parties’ common intention when the treaty was concluded), things will indeed have to change (the term’s meaning no longer being the same as it was The Indo–Pakistan Western Boundary (Rann of Kutch) Case (India v Pakistan) (n 96), 104. GT di Lampedusa, The Leopard (Archibald Colquhoun tr, Random House, 1960), 26. 108 Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) (n 17), 213 at [63]. 109 Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) (n 17), 213 at [64]. 106 107

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at the time of conclusion, and account must, in accordance with the intentions of the parties, be taken of this). In much the same way the principle of good faith played a role in the International Court’s judgment in Namibia,110 which led the Court’s interpretation away from conservatism in the sense that it made an evolutionary interpretation. It is important to note in respect of Namibia that which was seen above, that is, the principle of good faith is enshrined in the Charter of the United Nations as,111 according to Article 2(2), all the members of the United Nations, ‘in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter’.112 The Court in Namibia underlined that the mandatory powers had bound themselves to exercise their functions of administration in conformity with ‘the relevant obligations emanating from the United Nations Charter, which member States have undertaken to fulfil in good faith in all their international relations’.113 There can be little doubt that the Court was guided by the demands of good faith in reaching its interpretation of the Mandate agreement: questions of international tutelage have always had a particularly intimate relationship with the demands of the principle of good faith.114 It is not surprising that there should exist an affinity between fiduciary duties and bona fides; etymologically the relation is certainly clear enough. Thus Judge Lauterpacht observed in South West Africa—Voting Procedure that ‘a principle of good faith is particularly appropriate in relation to an instrument of a fiduciary character such as a mandate or a trust in which equitable considerations acting upon the conscience are of compelling application’.115 This good-faith requirement, and the particular importance it is deemed to have in connection with an instrument of a fiduciary character, came to the fore in Namibia as the International Court found in the concepts embodied in the terms of the Mandate agreement evolving elements which led it to arrive at an evolutionary interpretation of the agreement.116 If one contrasts the judgment of the Court, which clearly places a premium on good faith, with the dissenting opinion of Judge Fitzmaurice (that went against an evolutionary interpretation in that case), which though it runs to 206 pages in the law reports nowhere mentions the principle of good faith in the case in issue,117 one sees with clarity the important nexus 110 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) (n 14), 35. 111 Charter of the United Nations, 26 June 1945, 892 UNTS 119. 112 See Kolb, La bonne foi (n 59), 503–10. 113 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) (n 14), 35, 45–6. 114 Kolb, La bonne foi (n 59) 526–30. 115 Separate Opinion of Judge Lauterpacht in South West Africa—Voting Procedure, Advisory Opinion [1955] ICJ Rep 67, 105, 119–20; Separate Opinion of Judge Gros in Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) (n 14), 35, 338–41. 116 See H Waldock, ‘The Evolution of Human Rights Concepts and the Application of the European Convention on Human Rights’ in Mélanges offerts à Paul Reuter—Le droit international: unité et diversité (Pedone, 1981), 535, 541. 117 Dissenting Opinion of Judge Fitzmaurice in Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) (n 14), 35, 208–310.

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between good faith and the evolutionary interpretation adopted by the majority of the Court.

3.2.5 Conclusion Evolutionary interpretation may, as will have been seen, be required by good faith. This is partly due to the importance that good faith accords to the protection of legitimate expectations. It is obviously contrary to good faith to argue that a treaty term must be interpreted contemporaneously (ie as not having evolved)118 when it follows from what must be held to have been the common intention of the parties that the treaty terms were to be interpreted evolutionarily. The conservative element inherent in good faith is thus, in that type of situation, one which encompasses change in order to conserve, and what is to be conserved is the object of the parties’ agreement. The principle of good faith in treaty interpretation in this way brings out that there is more than just an accidental affinity between the intention of the parties and evolutionary interpretation. This interplay—between the common intention of the parties and evolutionary interpretation—is the topic in the next part of this chapter.

3.3 Evolutionary Interpretation and the Intention of the Parties 3.3.1 Introduction This part turns to the pre-VCLT approach to treaty interpretation and shows what in that approach was codified in Articles 31–33 and what was not. The intention is to make clear that what the ILC codified in Articles 31–33 were the means admissible in the objective establishment of the intention of the parties. It is no surprise therefore that, as will be seen, the International Court has been prominent in putting a premium upon the intention of the parties in cases bearing on evolutionary interpretation. The International Court in Navigational Rights made clear that the treaty interpreter may arrive at an evolutionary interpretation in two types of case. On the one hand, the Court said, the subsequent practice of the parties, within the meaning of Article 31(3)(b) of the VCLT, can result in a departure from the original intent on the basis of a tacit agreement between the parties.119 On the other hand, continued the Court, there are situations in which the common intention of the parties was, or may be presumed to have been, to give some or all of the terms used a meaning or See Ch 4. See Nolte, Treaties and Subsequent Practice (n 36); J Arato, ‘Treaty Interpretation and Constitutional Change: Informal Change in International Organizatons’ (2013) 38 Yale JIL 289, 307–48; R Gardiner, ‘The Vienna Convention Rules on Treaty Interpretation’ in D Hollis (ed), The Oxford Guide to Treaties (Oxford University Press, 2012), 494–5. 118 119

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content capable of evolving, not one fixed once and for all, so as to make allowance for, among other things, developments in international law: In such instances it is indeed in order to respect the parties’ common intention at the time the treaty was concluded, not to depart from it, that account should be taken of the meaning acquired by the terms in question upon each occasion on which the treaty is to be applied.120

This bifurcation provides a possible starting-point for the analysis of evolutionary interpretation. The topic here is evolutionary interpretation, and not the subsequent agreements and practice of the parties, and the analysis deals in principle only with the second type of case: evolutionary interpretation based on ‘the parties’ common intention at the time the treaty was concluded’.121 It will, however, be necessary to deal to some extent also with the subsequent agreements and practice of the parties. In Navigational Rights, evolutionary interpretation and the subsequent agreements and practice of Nicaragua and Costa Rica could be seen as leading to the same conclusion. Judge Skotnikov in his separate opinion observed that the result which the Court had reached should instead be reached by way of reliance upon the subsequent practice of the parties: ‘In my view’, he said, ‘the subsequent practice in the application of the Treaty suggests that the Parties have established an agreement regarding its interpretation: Costa Rica has a right under the 1858 Treaty to transport tourists’.122 The result which the Court had reached by way of evolutionary interpretation could also be reached by basing the interpretation upon the subsequent practice of the parties. This important point has also been underscored by the ILC’s Special Rapporteur Georg Nolte, who has pointed out, the evolutionary interpretation of treaties and the taking into account of subsequent conduct are in principle mutually complementary, and are often used that way in practice,123 as the example of Navigational Rights also bears out. The same was the case with Namibia, where the International Court referred to the practice of United Nations organs and of states in order to specify the conclusions which it derived from what it saw as the inherently evolutionary nature of the right to self-determination,124 and in Aegean Sea, where the Court found support for its evolutionary interpretation in the administrative practice of the United Nations and in the subsequent practice, in a different context, of the party which in the case had argued for a more restrictive interpretation.125 It is, however, important to note that in addition to this justificatory role subsequent conduct can also limit evolutionary interpretation. The limiting role of subsequent conduct emerges more clearly with the growing recognition of the possibility Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) (n 17), 213, 242–3. Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) (n 17), 213, 242. 122 Separate Opinion of Judge Skotnikov in Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) (n 17), 213, 284–85. 123 Nolte, ‘Introductory Report of the Study Group on Treaties over Time’ (n 36), 184–8. 124 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) (n 14), 16, 30–1. 125 Aegean Sea Continental Shelf (n 15), 31. 120 121

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of an evolutionary interpretation. Thus it is certainly possible to find examples of cases in which international courts have been faced with cases where a number of the means of interpretation would have led to an evolutionary interpretation but where, in the event, the court in issue opted for another result by reason of the subsequent practice of the parties. One such example is Mangouras v Spain,126 where arguably the Grand Chamber of the European Court of Human Rights (which was split 10–7) decided to lower the protection offered by Article 5 of the European Convention on Human Rights127 to the individual claimant, who had caused great harm to the environment in the form of an oil spill. The Spanish courts had set a bail of €3 million, a sum which, according to the minority of the Grand Chamber, was ‘far beyond the means of the applicant, with the consequence that he continued to be detained on remand for a total of eighty-three days’.128 One could thus certainly see Mangouras as a case which, taken out of context, could be judged a lowering of the standards of protection in Article 5 of the Convention concerning the setting of bail against the applicant. The Grand Chamber stated that in principle ‘the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies’.129 But this did not lead the Grand Chamber to the conclusion that the Article 5 rights involved had undergone an evolution that meant a higher level of rights protection for the individuals in the applicant’s situation. Instead the Grand Chamber stated that it could not ‘overlook the growing and legitimate concern both in Europe and internationally in relation to environmental offences’.130 The subsequent practice in Mangouras was evidenced in particular by states’ powers and obligations regarding the prevention of maritime pollution and the unanimous determination by European states to identify those responsible and imposing sanctions on them, sometimes using criminal law as a means of enforcing environmental law obligations. The Grand Chamber in Mangouras admittedly did not follow the exacting test as to what is subsequent practice drawn up by the International Court in Kasikili/ Sedudu, that a subsequent practice can be seen as being established only when the parties to a treaty, through their authorities, engage in common conduct, and that they acted wilfully and with awareness of the consequences of their actions.131 Nonetheless this case is an example of an international court shying away from giving to a provision of a treaty an interpretation that would have gone with the grain of the object and purpose of the treaty, and instead found guidance in the subsequent agreements and practice of the states, which seemed in the event to go in the Mangouras v Spain App No 12050/04 judgment [GC] 28 September 2010. Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 222. 128 Joint Dissenting Opinion of Judges Rozakis, Bratza, Bonello, Cabral Barretto, Davíd Thór Björgvinsson, Nicolau, and Bianku in Mangouras v Spain (n 126) at [1]‌. 129 130 Mangouras v Spain (n 126) at [87]. Mangouras v Spain (n 126) at [86]. 131 Kasikili/Sedudu Island (Botswana/Namibia) (n 42), 1094. 126 127

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other direction. The Grand Chamber in Mangouras in other words gave precedence to the subsequent practice of the states members of the Convention, thus avoiding a divergence between the jurisprudence of the Court and of the practice of the states. Nonetheless the three examples from the jurisprudence of the International Court, Namibia, Aegean Sea, and Navigational Rights, are evidence that we may be standing on its feet a false dichotomy if we assume without more that the use by international courts and treaty bodies of evolutionary interpretation will more often than not go against the grain of the subsequent agreements and practice of states. It is true that the constraints which exist in international law make many of the concerns about judicial law-making overblown.132 The same is the case here, as it turns out that only rarely in the cases where international courts have arrived at an evolutionary interpretation has the subsequent practice of the states in issue acted as a constraint on the court or Tribunal reaching the result arrived at.133 Mangouras notwithstanding, this is the case in the jurisprudence of the European Court of Human Rights, as that court practically never arrives at an evolutionary interpretation without basing such an interpretation also upon a ‘consensus’ among the state members. This approach goes back to Tyrer134 and was succinctly summed up by the Grand Chamber in A, B & C v Ireland: The existence of a consensus has long played a role in the development and evolution of Convention protections beginning with Tyrer v the United Kingdom, the Convention being considered a ‘living instrument’ to be interpreted in the light of present-day conditions. Consensus has therefore been invoked to justify a dynamic interpretation of the Convention.135

The ILC’s Special Rapporteur on Treaties over Time has also pointed out this aspect of the jurisprudence of the European Court, going so far as to state that whenever the Court has recognized that it is engaging in evolutionary interpretation ‘it has invariably referred to state, social or international legal practice’.136 This perspective seems at times to be lost on some of those who analyse the dynamics of intention and consent in relation to the European Convention. Rather than to deemphasize the intention of the parties by way of a particularly ‘sovereignty-limiting approach’, which is the view Helfner takes of the interpretive approach of the European Court,137 this is an approach which develops the Convention by taking a broad view both of the intention of the parties and their subsequent practice, and where an evolutionary interpretation is based equally upon both elements. The reason we are faced with a false dichotomy in this regard is partly due to the affinity between, on the one hand, the point which this study endeavours to make 132 T Ginsburg, ‘Bounded Discrection in International Judicial Lawmaking’ (2005) 45 Va JIL 1, 41–2. 133 Also: Nationality Decrees Issued in Tunis and Morocco (1923) PCIJ Series B No 4, 7; Gabčíkovo– Nagymaros Project (Hungary/Slovakia) (n 16); Pulp Mills on the River Uruguay (Argentina v Uruguay) (n 18), 14. 134 Tyrer v United-Kingdom (1978) 58 ILR 339, 353. 135 A, B and C v Ireland App No 25579/05 judgment [GC] 16 December 2010 at [234]. 136 Nolte, ‘Second Report of the Study Group on Treaties over Time’ (n 36), 254. 137 LR Helfner, ‘Nonconsensual International Lawmaking’ [2008] U Ill LR 71, 88.

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about evolutionary interpretation and the intention of the parties and, on the other hand, the traditional reason given for why one ought to give weight to the subsequent practice of the states. As has already been stated, and as will be seen in more detail below, this book argues that evolutionary interpretation can only happen to the extent that it follows from the intention of the parties, and the traditional reason given for why one ought to accord importance to the subsequent practice of the parties is, classically, that ‘l’exécution des engagement est, entre États, comme entre particuliers, le plus sûr commentaire du sens de ces engagements’.138 The Permanent Court in Interpretation of Article 3(2) of the Treaty of Lausanne went even further, saying that ‘the facts subsequent to the conclusion of the Treaty’ could only concern the Court ‘in so far as they are calculated to throw light on the intention of the Parties of the time of the conclusion of the Treaty’.139 This element has undergone some development in the practice of the International Court.140 We ought nonetheless not to exaggerate the extent to which evolutionary interpretation and interpretation based upon the subsequent practice of the parties are likely to diverge. Another condition ought to be entered as well, and that is that the analysis here does not deal specifically with Article 31(3)(c) of the VCLT and the conduit that that provision provides for the evolutionary interpretation of treaties. This provision, requiring account to be taken of any relevant rules of international law applicable in the parties’ relations, certainly has an important side to the evolutionary interpretation of treaties.141 Article 31(3)(c) was part of a development from the ILC’s consideration of ‘intertemporality’. While this study does not focus on the inter-systemic aspects of evolutionary interpretation, intertemporality is examined in Chapter 4. In Navigational Rights, the International Court imputed an intention to be bound by an evolving interpretation of the terms of the treaty.142 In that sense, as adumbrated above, the case is of a feather both with earlier and later cases to have reached the Court. In post-VCLT cases such as Namibia,143 Aegean Sea,144 Gabčíkovo–Nagymaros,145 and Pulp Mills,146 the Court arrived at an evolutionary interpretation of the instrument at issue specifically by stressing the importance in treaty interpretation of the intentions of the parties. In this regard it is worth considering the interpretation which the International Court made in Whaling.147 There the International Court observed by way of background that, the aims of the 1946 Conference leading to the International Affaire de l’ indemnité russe (Russie/Turquie) (1912) 11 RIAA 421, 433. Interpretation of Article 3(2) of the Treaty of Lausanne (n 10), 24. Also: Jurisdiction of the Courts of Danzig (1928) PCIJ Series B No 15, 4, 18. 140 See G Distefano, ‘La pratique subséquente des États parties à un traité’ (1994) 40 AFDI 41. 141 See Gardiner, ‘Vienna Convention Rules’ (n 119); A Boyle, ‘Reflections on the Treaty as a Law-Making Instrument’ in A Orakhelashvili and S Williams (eds), 40 Years of the Vienna Convention on the Law of Treaties (British Institute of International and Comparative Law, 2010), 21–8. 142 Clapham, Brierly’s Law of Nations (n 102), 356. 143 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) (n 14), 16 at [53]. 144 Aegean Sea Continental Shelf (n 15), 32 at [77]. 145 Gabčíkovo–Nagymaros Project (Hungary/Slovakia) (n 16), 78–9 at [142]. 146 Pulp Mills on the River Uruguay (Argentina v Uruguay) (n 18), 83 at [204]. 147 Whaling in the Antarctic (Australia v Japan: New Zealand Intervening) (n 81). 138 139

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Convention for the Regulation of Whaling,148 as described in the Conference’s opening address by Mr Dean Acheson, then Acting Secretary of State of the United States, were ‘to provide for the coordinaton and codification of existant regulations’ and to establish an ‘effective administrative machinery for the modification of these regulations from time to time in the future as conditions may require’.149 In contrast to the preceding Convention for the Regulation of Whaling150 and International Agreement for the Regulation of Whaling,151 the text of the Whaling Convention does not contain substantive provisions regulating the conservation of whale stocks or the management of the whaling industry, as these are to be found in the Schedule which, according to Article I(1), ‘forms an integral part’ of the Convention. The Schedule is subject to amendments, to be adopted by the International Whaling Committee (IWC), which under Article III(1) is given a significant role in the regulation of whaling. The Commission has amended the Schedule several times. On this background the International Court observed that, ‘the functions conferred on the Commission have made the Convention an evolving instrument’.152 The Court underlined the importance of the object and purpose of the Convention in this regard by observing that ‘amendments to the Schedule and recommendations by the IWC may put an emphasis on one or the other objective pursued by the Convention, but cannot alter its object and purpose’.153 Thus the Convention itself set up a system which provided for its own evolution. Judge Lauterpacht observed in South West Africa—Voting Procedure that: a proper interpretation of a constitutional instrument must take into account not only the formal letter of the original instrument, but also its operation in actual practice and in the light of the revealed tendencies in the life of the Organization.154

Thus, in Whaling,155 the formal letter of the original instrument itself set up a system which, in a fashion, formalized the ‘revealed tendencies in the life of the Organization’. The power to amend the Schedule gave the Commission scope for adapting the Convention to changing circumstances; this, as Judge Greenwood observed, was the Convention’s way of accommodating ‘the need to interpret and apply the treaty as a “living instrument” ’.156 Within the bounds of the object and purpose of the Convention,157 which according to the Preamble included

International Convention for the Regulation of Whaling, 2 December 1946, 161 UNTS 72. Whaling in the Antarctic (Australia v Japan: New Zealand Intervening) (n 81) at [44]. 150 Convention for the Regulation of Whaling, 24 September 1931, 155 LNTS 349. 151 International Agreement for the Regulation of Whaling, 8 June 1937, 190 LNTS 79. 152 Whaling in the Antarctic (Australia v Japan: New Zealand Intervening) (n 81) at [45]. Further: Separate Opinion of Judge Greenwood at [5]‌; Separate Opinion of Judge Charlesworth ad hoc at [3]; Separate Opinion of Judge Cançado Trindade at [25]–[40]. 153 Whaling in the Antarctic (Australia v Japan: New Zealand Intervening) (n 81) at [56]. 154 Separate Opinion of Judge Lauterpacht in South West Africa—Voting Procedure (n 115), 106. 155 Whaling in the Antarctic (Australia v Japan: New Zealand Intervening) (n 81). 156 Separate Opinion of Judge Greenwood in Whaling in the Antarctic (Australia v Japan: New Zealand Intervening) (n 81) at [7]‌. 157 See Ch 3.3.8. 148 149

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‘both conservation and ensuring a future for sustainable whaling’,158 the whole Convention was thus from the outset intended to be ‘an evolving instrument’.159 Thus Redgwell must be right in saying that it cannot be the case that environmental treaty-making—such as the treaties in issue in cases such as Gabčíkovo– Nagymaros and Pulp Mills, Kishenganga,160 and Whaling161—has engendered new rules of treaty interpretation applicable only in that sphere. Rather the development of such treaties and attendant techniques of interpretation should be seen as contributing to the development of the general law of treaties.162 The International Court was reluctant in the 1970–80s to having explicit recourse to the VCLT more generally in cases bearing upon treaty interpretation; it was only in the 1990s that the Court began referring to Article 31 in its judgments.163 Other examples, post-VCLT but not specifically dealing with evolutionary interpretation, such as Continental Shelf (Libya/Malta)164 and Frontier Dispute (Burkina Faso/Mali),165 could be given too of the International Court, or a Chamber of the Court, seemingly going directly to the notion of the intention of the parties without, overtly at any rate, having recourse to Articles 31–33. The tendency is, however, strikingly pronounced in cases bearing upon evolutionary interpretation. Lately it is especially the Court’s ruling in Navigational Rights which has been criticized for the way in which the Court in that case dealt with the issues of evolution and intent.166 Commentators have wondered whether, in interpreting the 158 Separate Opinion of Judge Greenwood in Whaling in the Antarctic (Australia v Japan: New Zealand Intervening) (n 81) at [5]‌. 159 Further: Separate Opinion of Judge Charlesworth ad hoc in Whaling in the Antarctic (Australia v Japan: New Zealand Intervening) (n 81) at [3]‌. 160 Indus Waters Kishenganga Arbitration (Pakistan v India) (Partial Award) (2013) 154 ILR 1, 173 at [452]. 161 Whaling in the Antarctic (Australia v Japan: New Zealand Intervening) (n 81). 162 C Redgwell, ‘Multilateral Environmental Treaty-Making’ in V Gowlland-Debbas (ed), Multilateral Treaty-Making: The Current Status of Challenges to and Reforms Needed in the International Legislative Process (Martinus Nijhoff, 2000), 107. Also: Separate Opinion of Judge Cançado Trindade in Whaling in the Antarctic (Australia v Japan: New Zealand Intervening) (n 81) at [29]–[30]. 163 See Territorial Dispute (Libya/Chad) (n 86), 21–2; Oil Platforms (Islamic Republic of Iran v United States of America) (Preliminary Objection) (Judgment) [1996] ICJ Rep 803, 812; Kasikili/ Sedudu Island (Botswana/Namibia) (n 42), 1059; LaGrand (Germany v United States of America) (Judgment) [2001] ICJ Rep 466, 501; Pulau Ligitan/Sipadan [2002] ICJ Rep 625, 645; Avena and Other Mexican Nationals [2004] ICJ Rep 12, 34; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, 174; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) [2007] ICJ Rep 43, 109–10. 164 Continental Shelf (Libya/Malta) [1995] ICJ Rep 13, 23 (‘Since the jurisdiction of the Court derives from the Special Agreement between the Parties, the definition of the task so conferred upon it is primarily a matter of ascertainment of the intention of the Parties by interpretation of the Special Agreement’). 165 Frontier Dispute (Burkina Faso/Mali) [1986] ICJ Rep 554, 577 (‘In the present case, the Chamber finds it to be clear from the wording of the Special Agreement—including its preamble— that the common intention of the Parties was that the Chamber should indicate the frontier line between their respective territories throughout the whole of the “disputed area”, and that this area was for them the whole of the frontier not yet delimited by joint agreement’). 166 B Simma, ‘Miscellaneous Thoughts on Subsequent Agreements and Practice’ in G Nolte (ed), Treaties and Subsequent Practice (Oxford University Press, 2013), 48; P Palchetti, ‘Interpreting

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convention at issue evolutionarily, the Court was in fact applying the general rule of interpretation as laid down in Article 31 of the VCLT. Thus Palchetti has observed that the International Court and other international courts and tribunals167 in reaching evolutionary interpretations generally ‘do not refer to the general rule stated in the Vienna Convention in order to justify their solution, preferring, instead, to rely on an argument which is based on the identification of the presumed intentions of the parties at the time of the conclusion of the treaty’.168 On this background, the question arises whether the International Court does or does not follow the general rule of interpretation when, in interpreting an instrument evolutionarily, it seeks above all to give effect to the intentions of the parties. Interestingly, Palchetti makes the observation that although, in his view, searching for the intention of the parties is not the approach laid down in Article 31, there is some similarity between the approach taken by the International Court in such cases and the approach of the general rule of interpretation. As he says: ‘The presumed intention is deduced from objective factors which are substantially the same factors on which one should rely when interpreting a treaty according to the general criterion stated in the Vienna Convention’.169 As will be seen, this way of putting the matter—the reliance upon objective factors in order to establish the intention of the parties—is very apt indeed.

3.3.2 A conservative approach? A more general caveat might here seem to be in place. It could be thought that the approach here argued for is overly ‘conservative’. This relates to that which was discussed above—how good faith conservatism might in fact demand change. If the quip that ‘if we want things to stay as they are, things will have to change’ is relevant to the demands that flow from good faith, then the same is certainly true with the

“Generic Terms”: Between Respect for the Parties’ Original Intention and the Identification of the Ordinary Meaning’ in Boschiero et al (eds), International Courts and the Development of International Law: Essays in Honour of Tullio Treves (Brill, 2013), 103–4; J Katz Cogan, ‘The 2009 Judicial Activity of the International Court of Justice’ (2010) 104 AJIL 605, 612–13; A Orakhelashvili, ‘The Recent Practice on the Principles of Treaty Interpretation’ in A Orakhelashvili and S Williams (eds), 40 Years of the Vienna Convention on Treaties (British Institute of International and Comparative Law, 2010), 134–5. 167 Iron Rhine (Belgium v Netherlands) (n 4), 65 and 73–4. Also: La Bretagne (Canada/France) (n 20), 659–60; Young Loan Arbitration (n 20), 531 [18]–[19]; United States—Import Prohibition of Certain Shrimp and Shrimp Products, WB/DS58/AB/R, 12 October 1998 at [130]; China— Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/AB/R, 21 December 2009 at [396]. Cf European Communities and its Member States—Tariff Treatment of Certain Information Technology Products, WT/DS375, 376 and 377/R, 16 August 2010 at [7.600]. More generally, the AB takes the view of treaty interpretation that: ‘The purpose of treaty interpretation under Article 31 . . . is to ascertain the common intentions of the parties’: EC—Computer Equipment, Report of the Appellate Body WT/DS62/ AB/R; WT/DS67/AB/R; WT/DS68/AB/R [84]; US—Gambling, Report of the Appellate Body WT/DS363/AB/R at [84]. 168 Palchetti, ‘Interpreting “Generic Terms” ’ (n 166), 103–4. 169 Palchetti, ‘Interpreting “Generic Terms” ’ (n 166), 104.

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intentions of the parties. As this chapter bears out, focusing on giving full and fair import to the common intention of the parties is not in any way in itself a conservative approach. First, the point can be made, as it has been with regard to the old debate as to whether international tribunals may have recourse to preparatory work,170 that there is nothing inherently conservative or progressive in the approaches taken; that will vary with the treaty situation in issue. Thus, if we here remain with the example of the debate on preparatory work, Lauterpacht explicates how on the one hand conservative international lawyers opposed the use of preparatory work on the basis of the conviction that the intention of the parties must be the decisive consideration and that recourse to travaux préparatoires was likely to render more difficult, if not to frustrate, the task of discovering the true intention of the parties. Opposition to resort to that instrument had, however, ‘also been prompted by considerations of a diametrically opposite character’.171 Thus Judge Alvarez, too, opposed resort to preparatory works, on the view that the treaty, once adopted, possesses a life of its own independent of the common intention of the parties. Alvarez observed in Reservations to the Convention on Genocide that the treaties in issue ‘must not be interpreted with reference to the preparatory work which preceded them; they are distinct from that work and have acquired a life of their own; they can be compared to ships which leave the yards in which they have been built, and sail away independently’.172 The same can be said of focusing on the intentions of the parties: there is nothing inherently conservative or progressive in giving pride of place to the common intention of the parties. Whether that is the case or not will of course depend on what was in point of fact the common will of the parties. This might have been a will to reach a result which could be described as very progressive indeed, as was the case in Jurisdiction of the Courts of Danzig,173 which is analysed in more detail below, where the common intention of the parties was so revolutionary as to lead the Permanent Court, by way of what has been called ‘a revolutionary pronouncement’,174 to leave behind old statist orthodoxies and embrace for the first time the notion that treaties can in international law confer rights directly on individuals. It could not be disputed, observed the Permanent Court, ‘that the very object of an agreement, according to the intention of the contracting parties, may be the adoption by the parties of some definite rule creating individual rights and obligations’; the Court, giving full and fair effect to the common intention of the parties in the way that was typical of the jurisprudence of the Permanent Court,175 could do nothing else Cf Mortenson, ‘The Travaux of Travaux’ (n 36). H Lauterpacht, The Development of International Law by the International Court (Stevens & Sons, 1958), 134. 172 Dissenting Opinion of Judge Alvarez in Reservations to the Convention on Genocide (n 37), 53. 173 Jurisdiction of the Courts of Danzig (n 139), 17–18. 174 Lauterpacht, The Development of International Law (n 171), 174; Crawford, International Law as an Open System: Selected Essays (Cameron May, 2002), 27–8; Orakhelashvili, The Interpretation of Acts and Rules in Public International Law (n 9), 293; K Parlett, The Individual in the International Legal System: Continuity and Change in International Law (Cambridge University Press, 2011), 16–26; R McCorquodale, ‘The Individual and the International Legal System’ in M Evans (ed), International Law (4th edn, Oxford University Press, 2014), 284. 175 Nolte, ‘Introductory Report’ (n 36), 176–7. 170 171

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but say that the solution to the question before it ‘depends upon the intention of the contracting Parties’.176 Another example is the European Convention on Human Rights,177 the founding document of the Council of Europe. It is well known that in the law of treaties the preamble of a treaty (in addition, of course, to the actual provisions of the treaty) is an important place to search for the common intention of the parties.178 It is plain from the preamble of the European Convention that ‘the aim of the Council of Europe is the achievement of greater unity between its members and that one of the methods by which this aim is to be pursued is the maintenance and further realisation of human rights and fundamental freedoms’. Another point in respect of the intentions of the parties and the European Convention bears on the relation to the ‘general principles of law recognized by civilized nations’ as mentioned in Article 38(1)(c) of the Statute of the International Court of Justice.179 These principles have been an important factor in the jurisprudence of the European Court; it referred to them both in Golder180 and in Demir and Baykara181 where it drew a connection between Article 38(1)(c) of the Statute of the International Court of Justice and Article 31(3)(c) of the Vienna Convention, stating that: Article 31 para. 3 (c) of the Vienna Convention indicates that account is to be taken, together with the context, of ‘any relevant rules of international law applicable in the relations between the parties’. Among those rules are general principles of law and especially ‘general principles of law recognized by civilized nations’. Incidentally, the Legal Committee of the Consultative Assembly of the Council of Europe foresaw in August 1950 that ‘the Commission and the Court must necessarily apply such principles’ in the execution of their duties and thus considered it to be ‘unnecessary’ to insert a specific clause to this effect in the Convention.182

It is in this regard significant that during the preparatory work it was specifically said that the Court must rely in its interpretation of the Convention on general principles not such as they were when the Convention was concluded but ‘at any given moment’: We state that organised international protection shall have as its aim, among other things, to ensure, that internal laws on guaranteed freedoms are in conformity with the fundamental principles of law recognised by civilised nations. What are these principles? They are laid down in much doctrinal work and by a jurisprudence which is their authority. These are the principles and legal rules which, since they are formulated and sanctioned

Jurisdiction of the Courts of Danzig (n 139), 17. Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 222. Also: Effect of Reservations Opinion (1982) 67 ILR 558, 567–8. 178 See eg Sovereignty over Certain Frontier Land [1959] ICJ Rep 209, 221. 179 Statute of the International Court of Justice, 26 June 1945, 892 UNTS 119. 180 Golder v United Kingdom (1975) 57 ILR 200. 181 Demir and Baykara v Turkey App No 34503/97 judgment [GC] 12 November 2008. 182 Golder v United Kingdom (n 180), 217 at [35] (internal references omitted); Demir and Baykara v Turkey (n 181), at [71]. Also: R Jennings and A Watts, Oppenheim’s International Law (9th edn, Longman, 1992), 1275; J Arato, ‘Constitutional Transformation in the ECtHR: Strasbourg’s Expansive Recourse to External Rules of International Law’ (2012) 37 Brooklyn JIL 349. 176

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by the internal law of all civilised nations at any given moment, can therefore be regarded as constituting a principle of general common law, applicable throughout the whole international society.183

On the background of these two points, the intention of the parties is thus not only the maintenance and safeguarding of human rights as set out in the articles of the Convention; it also involves the further realization and the development of these rights. This must be taken seriously by the treaty interpreter. As former President of the European Court of Human Rights Jean Paul Costa has put it: le Préambule de la Convention indique que le but du Conseil de l’Europe, et donc de la Cour, est non seulement la sauvegarde des droits et libertés, mais encore leur développement. Cela implique une conception évolutive et progressive du contenu des droits reconnus, et la Cour manquerait à une partie de ses devoirs si elle ne veillait qu’à la sauvegarde des droits en néglieant l’impératif de leur développement.184

It would be a mistake to see this approach as inherently conservative; nothing could, in respect of the European Convention, be more progressive than faithful reliance upon the intention of the parties to the Convention. Making the point that Article 31 does not mention the intention of the parties, Sir Gerald Fitzmaurice, sitting as a judge of the European Court of Human Rights, underlined in Belgian Police that, ‘though it does not in terms mention it’, Article 31 ‘implicitly recognises the element of intentions’.185 This is correct. But whilst it is true that the VCLT ‘implicitly recognises the element of intentions’, as the next section will explain, putting the matter in this way nonetheless runs the risk of confusing the issues.

3.3.3 A re-reading of Article 31? Already in 1949 the ILC began to concern itself with the law of treaties, and eventually also the interpretation of treaties. In 1966 it adopted 75 draft articles that formed the basis for the VCLT of 22 May 1969, which entered into force on 27 January 1980.186 The Special Rapporteurs were all British: first Brierly, then Lauterpacht, Fitzmaurice, and in the last, and most important, stages Waldock.187 To some extent, running in parallel with the work of the ILC was the work on treaty interpretation undertaken by the Institut de droit international, which elected as

183 References to the Notion of the ‘General Principles of Law Recognized by Civilised Nations’ Contained in the Travaux Préparatoires of the Convention, 4 (emphasis added). Also: Christoffersen, Fair Balance (n 52), 54–5. 184 JP Costa, La Cour européenne des droits de l’ homme: Des juges pour la liberté (Dalloz, 2013), 43. 185 Separate Opinion of Judge Fitzmaurice in National Union of Belgian Police (1980) 57 ILR 262, 293–4. 186 Crawford, Brownlie’s Principles of International Law (8th edn, Oxford University Press, 2012), 367. 187 The principal items, with respect to treaty interpretation, are: ILC Ybk 1964/I–II; ILC Ybk 1966/I–II; ILC Final Report and Draft Articles, ILC Ybk 1966/II.

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their Special Rapporteurs first Lauterpacht and then, on the latter’s elevation to the International Court, Fitzmaurice.188 Fitzmaurice held, in an important contribution,189 that any analysis of the jurisprudence of the International Court or indeed the pronouncements of any Tribunal on treaty interpretation can only be properly evaluated against the backdrop of the various theories of interpretation that are or recently have been current.190 He drew up three possible approaches to treaty interpretation: the textual approach, the intentions approach, and the teleologic approach. Fitzmaurice never presented these schools of interpretation as authorities on their own, still less in terms of balancing policies and perceptions. Rather, they were rational attempts on Fitzmaurice’s part at explication and taxonomization of the approaches taken in the doctrine.191 The tripartite split drawn up by Fitzmaurice192 became influential and made up the backdrop of the debates in the ILC in its work on the law of treaties.193 Thus Special Rapporteur Waldock in his ‘Third Report on the Law of Treaties’ saw the question as a matter of writers differing in their basic approach to the interpretation of treaties according to the relative weight they were willing to ‘give to’ the text of the treaty, the intentions of the parties, and objects and purposes of the treaty. The ILC took as a point of departure that an attempt to codify the conditions of the application of those principles of interpretation whose application in any given case depends on the particular context and on a subjective appreciation of varying circumstances would clearly be inadvisable.194 It accordingly confined itself to isolating and codifying the comparatively few general principles which appeared in its view to constitute ‘general rules for the interpretation of treaties’.195 Among many important choices which had to be made was the choice of how best to balance the different factors, or means of interpretation, to be taken into account. Special Rapporteur Waldock wanted to go far in giving pre-eminence to the terms of the treaty,196 but his initial proposal was on this point made to give way to a more balanced approach. The three Special Rapporteurs preceding Waldock had been fairly unison in this regard. Special Rapporteur Brierly had in a private capacity put the matter in the following way: the object of treaty interpretation is ‘to give effect to the intention of the parties as fully and fairly as possible’.197 Special Rapporteur Fitzmaurice stated that: ‘The view that the intentions of the parties are relevant, and that to ascertain and give effect to them is the prime and sole legitimate object of interpretation, is not only the traditional but also the juridically natural view’.198 And if there is one The principal items are (1950) 43 Ann de l’Inst; (1956) 46 Ann de l’Inst. See ILC Ybk 1964/II, 53–4. G Fitzmaurice, ‘The Law and Procedure of the International Court of Justice 1951–54: Treaty Interpretation and Other Treaty Points’ (1957) 33 BYIL 203, 204. 191 192 Orakhelashvili, ‘Principles of Treaty Interpretation’ (n 166), 118. See Ch 3.3.3. 193 194 See ILC Ybk 1964/II, 53–4. ILC Ybk 1966/II, 217. 195 196 ILC Ybk 1966/II, 217–18. ILC Ybk 1964/II, 52. Cf 1966 ILC Ybk/II 220. 197 JL Brierly, The Law of Nations: An Introduction to the International Law of Peace (Oxford University Press, 1928), 168. 198 G Fitzmaurice, ‘The Law and Procedure of the International Court of Justice: Treaty Interpretation and Certain other Treaty Points’ (1951) 28 BYIL 1, 3. 188 189

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common thread running through the works on treaty interpretation of Special Rapporteur Lauterpacht it is that ‘the ultimate object of the work of interpretation is to explain and classify legal transactions according to the declared will of both parties’.199 It is clear that to the extent that Waldock set out as Special Rapporteur on the law of treaties to change this he did not in the end succeed. Special Rapporteur Waldock’s initially proposed general rule of interpretation provided that: 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.200

This proposed rule plainly focused on the ‘terms’ of a treaty and went very far in giving pre-eminence to a textual approach. It was voted down after an instructive debate among the members of the ILC. Briggs agreed with Waldock’s proposed rule, though he only saw an insistence upon the primacy of the text to be correct insofar as it was ‘an expression of the intentions of the parties’.201 Several other members of the ILC, however, took a different view of matters to the Anglo-American point of view. Citing the 1950 report for the Institute of International law by Lauterpacht,202 Tabibi stated that he would rather have given ‘greater weight to the intention of the parties’.203 Amado, too, was critical; he pointed out that he thought the use in the opening passage of the article of ‘The terms of a treaty’ was too narrow, as ‘a treaty consisted of a number of texts, contexts and terms; what had to be interpreted was the treaty itself, not its terms.204 Pessou also felt that the intention of the parties must be given a more prominent place in the provision.205 Verdross wanted to mention the intention of the parties in the article itself.206 Bartos stated that the Special Rapporteur’s draft articles ‘were based on the general concept, so dear to the English school of legal thought that interpretation meant interpretation of the text rather than of the spirit of a treaty’.207 He continued by underlining that, to his mind: Where interpretation was concerned, the autonomy of the will of the parties was paramount. What the parties had intended was more important than what they had actually said in the treaty.208

199 H Lauterpacht, Private Law Sources and Analogies of International Law: with Special Reference to International Arbitration (Longman, 1927), 187; Lauterpacht, ‘Restrictive Interpretation and the Principle of Effectiveness’ (n 73), 73; Lauterpacht, The Development of International Law (n 171), 136. 200 ILC Ybk 1964/II, 52. 201 ILC Ybk 1964/I, 275. 202 Lauterpacht, ‘De l’interprétation des traités’ (n 72), 366–402. 203 204 ILC Ybk 1964/I, 276. ILC Ybk 1964/I, 277. 205 ILC Ybk 1964/I, 278. He thus added that the Commission should not hesitate to mention the teleological aspects of treaties. Pessou, too, felt that the wording of the Special Rapporteur was too narrow. He proposed instead: ‘In the light of the context and of the general rules of application, the provisions of a treaty shall be interpreted in good faith in conformity with the objects and purposes of the treaty and with the intentions of the parties at the time of the conclusion of the treaty.’ 206 207 208 ILC Ybk 1964/I, 287. ILC Ybk 1964/I, 279. ILC Ybk 1964/I, 279.

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The interpretation of a treaty ought therefore to be based on the general spirit of the treaty.209 Chairman Ago voiced similar concerns. He would have preferred that the objects and purposes of a treaty had been given a more prominent place in the first paragraph of the general rule, than what had been the case with Waldock’s initially proposed rule.210 Bartos and de Luna, too, felt that it was unfortunate that the objects and purposes of a treaty had not been given a more prominent place.211 Pal expressed the matter in the following way: ‘in order to find out the real meaning of a treaty, it was necessary to consider the intention of the parties in so far as those parties had succeeded in expressing it in the language used by them in the treaty’.212 More generally, leading members of the ILC, such as Rosenne,213 Jiménez de Aréchaga,214 and Chairman Ago,215 made explicit statements during the debates to the effect that treaty interpretation was about the ascertainment of the intention of the parties, and that that needed to be reflected in the articles. In a fashion the divide between the approach of Waldock’s initially proposed rule and the one which was in the end adopted is summarized by Lauterpacht: The problem is to a large extent identical with the question whether the purpose of interpretation is to discover the intention of the parties or the meaning of the words which they used. It is possible to maintain that the intention of the parties is relevant only in so far as it supplies a clue to the true meaning of a disputed term or provision. The alternative and, probably, the correct view is that the discovery of the meaning of the words used in a treaty is only a means for ascertaining the intention of the parties.216

In line with this, Judge Higgins held in Kasikili/Sedudu that the object of treaty interpretation ‘is not to discover a mythical “ordinary meaning” within the Treaty’; rather the object of the exercise is ‘to give flesh to the intention of the parties’, ‘to decide what general idea the parties had in mind, and then make reality of that general idea’.217 ‘In the law of treaties’, Higgins has observed elsewhere, ‘the intention of the parties is really the key’.218 It is important, however, to keep in mind that Article 31, as it was finally agreed upon, does not implicitly recognize intentions as just another (unmentioned) means of interpretation; rather, it recognizes intention as the very aim of the whole process. De Visscher made this point about the intention of the parties, already before the VCLT was adopted, stressing the point that the discovery of the intention of the parties is the object of interpretation, and must not be thought to be anything else. It is, he said, the very thing to be proven, ‘la chose à démontrer’, and one cannot 210 211 ILC Ybk 1964/I, 280. ILC Ybk 1964/I, 281. ILC Ybk 1964/I, 281. ILC Ybk 1964/I, 286. 213 ILC Ybk 1964/I, 36 (the ‘fundamental rule of interpretation [is] that the intention of the parties must prevail’). 214 ILC Ybk 1964/I, 34 (‘the intention of the parties should be controlling’). 215 ILC Ybk 1964/II, 189 (‘Interpretation consisted in the attempt to determine what the parties intended’); ILC Ybk 1964/II, 205 (treaty interpretation aims ‘to ascertain the will of the parties from what they had said’). 216 Lauterpacht, The Development of International Law (n 171), 136. 217 Declaration of Judge Higgins in Kasikili/Sedudu Island (Botswana/Namibia) (n 42), 1114. 218 Higgins, ‘Inter-Temporal Rule’ (n 42), 181. 209 212

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regard as a means of interpretation that which can only be the result of the interpretive process itself.219 On this background it is instructive that Special Rapporteur Waldock made his approach clear by stating the reason why (in common with Lauterpacht’s proposed articles for the Institut de droit international some 15 years earlier)220 his approach, later qualified in 1966 by the ILC colleagues, relied on the 'primacy of the text’: It takes as the basic rule of treaty interpretation the primacy of the text as evidence of the intentions of the parties. It accepts the view that the text must be presumed to be the authentic expression of the intentions of the parties.221

In 1966, the ILC described treaty interpretation as geared towards ‘appreciating the meaning which the parties may have intended to attach to the expressions that they employed in a document’.222 Indeed, one of the main reasons why, more broadly, the ILC felt bound to tackle head on the difficult task of formulating the comparatively few general principles which appear to constitute general rules for the interpretation of treaties was, it said, to set out ‘the means of interpretation admissible for ascertaining the intention of the parties’.223 This was later well summarized by Jennings and Watts: on the approach of the general rule of interpretation, they explained, ‘it is the intention which is being sought’; ‘the question is primarily one of determining what elements may properly be taken into account as indirect evidence of the parties’ intention and what weight is to be given to those elements’.224 The ILC made it clear, however, that what it was codifying was an approach to treaty interpretation that relied in the first instance upon the text of the treaty as the starting point in ascertaining the common intention of the parties. The relation between text and intention has later been well brought out by Crawford, who describes what he calls the ‘unitary process of interpretation’ 225 outlined in the general rule of interpretation thus: ‘Article 31 emphasizes the intention of the parties as expressed in the text, as the best guide to their common intention’.226 Yasseen, one of the leading members of the ILC during the drafting of the VCLT, made it clear that when the ILC took the text as the starting point for interpretation that was in no way to minimize the importance of the intention of the

219 C de Visscher, Problèmes d’ interprétation judiciaire en droit international public (Pedone, 1963), 50. 220 Waldock in fact pointed out that his proposed Art 70—which would become Art 31—‘corresponds to article 1 of the Institute’s resolution’: ILC Ybk 1964/II, 56. 221 ILC Ybk 1964/II, 56. Cf ILC Ybk 1966/II, 220 where, no longer enjoying ‘primacy’, the text was described by the ILC as ‘the starting point’. 222 ILC Ybk 1966/II, 218. 223 ILC Ybk 1966/II, 218–19. 224 Jennings and Watts, Oppenheim’s International Law (n 182), 1271 (my emphasis). 225 J Crawford, ‘Chance, Order, Change: The Course of International Law’ (2013) 365 Hague Recueil 9, 300. Cf M Waibel, ‘Uniformity versus Specialisation: A Uniform Regime of Treaty Interpretation?’ in Tams, Tzanakopoulos, and Zimmermann (eds), Research Handbook on the Law of Treaties (Elgar, 2014). 226 Crawford, Brownlie’s Principles of International Law (n 186), 379.

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parties: ‘Going first to the text is inevitable; the text is taken to contain the common intention of the parties’.227 He continued by saying: ‘What is the point of a text if, in order to interpret the treaty, the intention of the parties is to be searched ab initio? Taking the text as the point of departure is not to minimize the importance of the intention of the parties; rather, it means proceeding to discover it by examining the instrument by way of that through which it is expressed’.228 Reuter, another leading member of the ILC in the period leading up to the Vienna Convention, in his writings after 1969, made the same point as Yasseen about the close nexus between textuality and intentionality in the general rule: ‘The purpose of interpretation’, he said, ‘is to ascertain the intention of the parties from a text’; ‘interpretation means going backwards from the text to the initial intention’. In the interpretation of treaties, because of what he called the submission to the expression of the parties’ intention it is, he said, essential to identify exactly how and when that intention was expressed; thus, Reuter said about the means of interpretation enumerated in Article 31, ‘it is from these elements, since they primarily incorporate the parties’ intention, that the meaning of the treaty should normally be derived’.229 Capotorti, one of the Italian representatives at the Vienna Conference, made the point in 1969 that although the general rule takes an objective approach ‘the solution adopted in the Vienna Convention provides a keyhole through which to look for the common intention of the parties’.230 Far from minimizing the importance of the intention of the parties, then, the approach taken by Article 31 gives the treaty interpreter the admissible and agreed upon way of ascertaining it. That process begins, as virtually all interpretation of texts, with the text itself.231 This gist is conveyed in the ILC’s words, referred to

227 Yasseen, ‘L’interprétation des traités’ (n 64), 25 (‘C’est au texte que de prime abord il est inévitable de recourir pour interpréter le traité. Ce texte est censé contenir l’intention commune des parties’). 228 Yasseen, ‘L’interprétation des traités’ (n 64), 25 (‘A quoi sert un texte, si, pour interpréter le traité, il faut chercher ab initio l’intention des parties? Prendre le texte comme point de départ, ce n’est donc pas minimiser l’importance de l’intention des parties, mais procéder à sa découverte, par l’examen de l’instrument par lequel elle s’est exprimée’). 229 Reuter, Introduction to the Law of Treaties (n 10), 96–7. Also: Reuter, La Convention de Vienne (n 3), 17 (‘L’interprétation [doit] se faire essentiellement par la recherche de l’ intention des parties telle qu’elle apparaît dans ces éléments objectifs que constituent le texte, le contexte et l’attitude des parties’); P Reuter, Droit international public (5th edn, Presses universitaire de France, 1983), 145 (‘Interpréter consiste à retrouver la volonté du ou des auteurs d’un acte juridique. Interpréter un accord instrumenté dans un texte consiste donc, en se soumettant d’abord au texte, à retrouver la commune volonté de ses auteurs’). Also: M Dawidowicz, ‘The Effect of the Passage of Time on the Interpretation of Treaties: Some Reflections on Costa Rica v Nicaragua’ (2011) 24 LJIL 201, 206–7. 230 F Capotorti, Convenzione di Vienna sul diritto dei trattati (CEDAM, 1969), 36 (‘In definitiva si può ben dire che l’importanza sempre crescente degli accordi multilaterali, accentuando il valore “normativo” e non meramente “contrattuale” della disciplina pattizia, ha contribuito a determinare la prevalenza dei criteri oggettivi rispetto a quelli soggettivi di interpretazione. Bisogno d’altro canto avvertire che la stessa soluzione accolta dalla Convenzione di Vienna non manca di aprire qualche spiraglio alla ricerca dell’intenzione comune delle parti’). 231 Iron Rhine (Belgium v Netherlands) (n 4), 63 at [47]; Territorial Dispute (Libya/Chad) (n 86), 21–2 at [41].

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above, to the effect that the task of the ILC was to enumerate ‘the means of interpretation admissible for ascertaining the intention of the parties’.232 As can be seen from Yasseen’s words, too, the only real difference between what, in the run up to the VCLT, had been termed (slightly confusingly, as it turns out) the ‘textual’ and the ‘intentions’ method, therefore, is that the textual method takes, in the ascertainment of the intention of the parties, as its starting point the text, whereas the intentions approach investigates ab initio (that is, from the beginning) the intentions of the parties. The one defining difference, then, is that the textual approach is founded upon a presumption that, as Special Rapporteur Waldock put it, ‘the signed text is, with very few exceptions, the only and the most recent expression of the common will of the parties’.233 Even Beckett, who in the debates of the Institut de droit international in 1950 registered probably the most critical view of the category of ‘the intention of the parties’ to have entered the debate, was of the view that when the text of a treaty was so important that was because ‘treaties must be deemed to be drawn up with legal advice and prima facie to express completely the intentions of the parties’.234 On this background it must be correct to say that, as Gaja has explained, within the approach set out in Articles 31–33 of the VCLT, the treaty interpreter reconstructs the meaning of an ‘objectivized intention of the parties’; the means of interpretation are ‘objective elements’ which guide the treaty interpreter to the establishment of the intention of the parties.235

3.3.4 The ILC approach and its antecedents By searching for the intention of the parties in relation to evolutionary interpretation, the International Court is in fact nothing if not applying the framework of Article 31 of the VCLT. Although the general rule of interpretation does not mention in terms the intention of the parties—or what role, if any, this construction ought to play in treaty interpretation—all the elements of the general rule have one sole aim and that is to provide the basis for establishing the intention of the ILC Ybk 1966/II, 218–19 (my emphasis). ILC Ybk 1964/II, 56 and ILC Ybk 1966/II, 220, citing (1950) 43 Ann de l’Inst 199 (‘le texte signé est, sauf de rares exceptions, la seule et la plus récente expression de la volonté commune des parties’). 234 E Beckett (1964) 43 Ann de l’Inst 435, 442. Also: G Fitzmaurice and FA Vallat, ‘Sir (William) Eric Beckett, KCMG, QC (1896–1966): An Appreciation’ (1968) 17 ICLQ 267, 307–8. It should be noted, however, that Lauterpacht had made of the wording the point of departure: ‘La recherche de l’intention des parties étant le but principal de l’interprétation, il est légitime et désirable, dans l’intérêt de la bonne foi et de la stabilité des transactions international, de prendre le sens naturel des termes comme point de départ du processus d’interprétation’: Lauterpacht, ‘De l’interprétation des traités’ (n 72), 433. The only real difference between Lauterpacht’s approach and Waldock’s therefore is the importance given to preparatory works. 235 Gaja, ‘Trattati internazionali’ (n 8), 355–6. Also: Capotorti, Convenzione di Vienna sul diritto dei trattati (n 230), 36; RE Fife, ‘Les techniques interprétatives non juridictionnelles de la norme internationale’ (2011) 115 RGDIP 367, 372; M Fitzmaurice, ‘Interpretation of Human Rights Treaties’ in D Shelton (ed), Handbook in International Human Rights Law (Oxford University Press, 2014), 745. 232 233

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parties. This is clear not only from the post-VCLT jurisprudence of the International Court and of arbitral tribunals. As has just been seen, it follows, too, from the approach taken by the International Law Commission in its work—most notably that of Special Rapporteur Waldock—leading up to the adoption of the VCLT. The approach taken to treaty interpretation before the VCLT was squarely one in which, as the Tribunal in Air Transport Services Agreement put it on the eve of the Convention’s adoption, the goal was to ‘establish with the maximum possible certainty what the common intention of the Parties was’.236 In fact this was even clearer in the early twentieth century, tribunals at that time being quite prepared, in the ascertainment of the common intention of the parties, to interpret treaties contra legem.237 Thus the Tribunal in Island of Timor expanded on the importance in the law of treaties of establishing that which the Tribunal called ‘the actual and mutual intention’ of the parties.238 Treaties bind the parties to loyal and complete execution, the Tribunal said, ‘not only of what has been literally promised but of that to which a party has bound itself, and also that which conforms to the essence of any treaty whatsoever as to the harmonious intention of the contracting parties’.239 Thus, concluded the Tribunal in Island of Timor, the interpretation of treaties ought ‘to be made in conformity with the real mutual intentions of the parties, and also in conformity with what can be presumed between parties acting loyally and with reason, not that which has been promised by one to the other according to the meaning of the words used’.240 236 Interpretation of the Air Transport Services Agreement between the United States of America and France (n 37), 229. Also: Lighthouses Case between France and Greece (n 37), 13 and 18; Reservations to the Convention on Genocide (n 37), 23; Certain Norwegian Loans (n 37), 23, 27; Kasikili/Sedudu Island (Botswana/Namibia) (n 42), 35 [53]; Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) (n 17), 237 at [48]; Argentina/Chile Frontier Case (Palena) (n 36), 89; Decision regarding delimitation of the border between Eritrea and Ethiopia (n 34), 34 at [3.4]; Tax regime governing pensions paid to retired UNESCO Officials residing in France (France v UNESCO), 248; China—Audiovisual Entertainment Products, Report of the Appellate Body WT/DS363/AB/R at [405]; US—Gambling, Report of the Appellate Body WT/DS363/AB/R at [84]; EC—Computer Equipment, Report of the Appellate Body WT/DS62/AB/R; WT/DS67/AB/R; WT/DS68/AB/R at [84]; Aguas del Tunari v Bolivia ICSID Case No ARB/02/03, 21 October 2005 at [91]. 237 Italy–United States Air Transport, Arbitration (1965) 45 ILR 393, 409–10; Dissenting Opinion of Judges Anzilotti and Huber in Case of the SS ‘Wimbledon’ (1923) PCIJ Series A No 1, 15, 36. Also: Sørensen, Les sources du droit international (n 36), 214 (‘Partant de la supposition que les mots d’une disposition conventionnelle n’ont de valeur qu’en tant qu’expressions des intentions que les parties entendaient réaliser par la convention, toute interprétation devrait poursuivre le seul but de constater ces intentions’). 238 Affaire de l’ île de Timor (Pays-Bas c Portugal) (1914) 11 RIAA 481, 497 (the reference here and below is to the English translation provided by the Permanent Court of Arbitration: Boundaries of the Island of Timor (Netherlands v Portugal) award of 25 June 1914). Also: R Kolb, ‘Is there a Subject-Matter Ontology in Interpretation of International Legal Norms’ in M Andenas and E Bjorge (eds), A Farewell to Fragmentation: Reassertion and Convergence in International Law (Cambridge University Press, 2015). 239 Affaire de l’ île de Timor (Pays-Bas c Portugal) (n 238), 496–7. 240 Affaire de l’ île de Timor (Pays-Bas c Portugal) (n 238), 496–7. Also: Affaire de la Dette publique ottomane (Bulgarie, Irak, Palestine, Transjordanie, Grèce, Italie et Turquie) (1925) 1 RIAA 529, 548; Affaire relative à la concession des phares de l’Empire ottoman (Grèce v France) (1956) 12 RIAA 155, 184; Affaire Chevreau (France v Royaume-Uni) (1931) 2 RIAA 1113; Arbitral Award in the Matter of the Claim of Madame Chevreau against the United Kingdom printed in (1933) 27 AJIL 153; Sarropoulos in (1927–28) Annual Digest of Public International Law Cases Case No 291; Polyxene

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Before the International Court, the Permanent Court took the same approach, such as when in Lighthouses Case between France and Greece it said that the end goal of the interpretative exercise was not to find the true meaning of the treaty term but that the Court must ‘satisfy itself as to the true intention of the Parties’; ‘it must determine the intention of the Parties as regards the scope of the contract’.241 The approach of the Permanent Court was in fact so focused upon establishing the common will of the parties, sometimes to the detriment of the text, that some authors, both then and presently, have felt it necessary to caution against this perceived overreliance on trying to tease out what in fact the parties meant and thus not seeing treaty interpretation as an operation the object of which is to find the meaning of a treaty text.242 The writings of leading publicists were, from the nineteenth century onwards, squarely influenced by the view that treaty interpretation was determined by the intention of the parties.243 Before the VCLT, virtually no writer took a different approach. Thus Rivier made clear that it is in the law of treaties necessary, above all, to establish the mutual intention of the parties: ‘Il faut avant tout constater la commune intention des parties’; ‘les traités doivent être interprétés non pas exclusivement selon leur lettre, mais selon leur esprit’.244 Sørensen took as his point of departure that the words of a treaty have no meaning except as the expression of the intentions of the parties, and that the sole object of treaty interpretation is therefore to establish those intentions.245 De Visscher said as much when he stated that: ‘La mission du juge est de dégager l’intention commune des Parties des termes employés par elles pour autant que ceux-ci ne trahissent pas manifestement cette intention’.246 On this reading, international tribunals, when interpreting a treaty, set out to find: ‘cette part des intentions des parties que des signes extérieurs révèlent’.247 In fact de Visscher reinforced this by saying that some commentators have misinterpreted the jurisprudence of the Permanent and International Court on this score, a misinterpretation which has taken attention away from the intention of the parties and focused instead on Plessa v the Turkish Government in (1929) VIII Recueil des décisions des tribunaux arbitraux mixtes 224; Ottoman Debt Arbitration in (1925–26) Annual Digest of Public International Law Cases Case No 270; Lederer v German State in (1928) III Recueil des décisions des tribunaux arbitraux mixtes 762–9; Diverted Cargoes Case (Greece v United Kingdom) (n 90), 70. See Lauterpacht, The Development of International Law by the International Court (n 171), 56. 241 Lighthouses Case between France and Greece (n 37), 13 and 18. Also: Territorial Jurisdiction of the International Commission of the River Oder (1929) PCIJ Series A No 23, 5, 26; Jurisdiction of the Courts of Danzig (n 139), 17–18. 242 MO Hudson, The Permanent Court of International Justice 1920–1942 (Macmillan, 1943), 640–4; Gardiner, Treaty Interpretation (n 11), 59–60. 243 Orakhelashvili, ‘Principles of Treaty Interpretation’ (n 166), 117. 244 Rivier, Principes du droit des gens (n 80) at [157]. 245 Sørensen, Les sources du droit international (n 36), 214 (‘Partant de la supposition que les mots les mots d’une disposition conventionnelle n’ont de valeur qu’en tant qu’expressions des intentions que les parties entendaient réaliser par la convention, toute interprétation devrait poursuivre le seul but de constater ces intentions.’) 246 De Visscher, Problèmes d’ interprétation (n 219), 18. 247 C de Visscher, Théories et réalités en droit international public (4th edn, Pedone, 1970), 414.

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what he terms literal interpretation: ‘On a quelque peu déformé la jurisprudence de la Cour permanente et celle de la Cour internationale de Justice en parlant à son sujet de méthodes d’interprétation littérale’.248 The goal of the interpretative process, then, is to ‘traduire fidèlement une volonté’.249 De Visscher in his discussion gives the example of the interpretation given by the Permanent Court in Danzig Railway Officials250 —revolutionary in what it said about international human rights but nothing if not a copybook example of the general rule of interpretation251—where the Permanent Court addressed the issue of whether treaties can confer rights directly on individuals, in the instant case Danzig railway officials. Poland contended that the agreement (a so-called Beamtenabkommen) between Poland and Danzig conferred no right of action upon the individuals in issue. The Permanent Court, though it could on the orthodox international law of the day very well have agreed with Poland’s contention,252 rejected, unanimously, an interpretation of the treaty which would have put a premium on well-established principles of international law instead of the common will of the parties: ‘The answer to this question’, said the Court, ‘depends upon the intention of the contracting Parties’. The Court continued: It may readily be admitted that, according to a well established principle of international law, the Beamtenabkommen, being an international agreement, cannot, as such, create rights and obligations for private individuals. But it cannot be disputed that the very object of an agreement, according to the intention of the contracting parties, may be the adoption by the parties of some definite rule creating individual rights and obligations and enforceable by national courts.253

Had the Court wished to adhere to the traditional view then it would have interpreted the controversial common intention of the parties in the light of the traditional doctrine; ‘the issue must’, as Lauterpacht said in his comments to the case, ‘depend on the intention of the parties’.254 It should parenthetically be mentioned that the result reached unanimously by the Permanent Court was, seeing as it was based foursquare on the intentions of the parties and thus administered with such judicial restraint, thought by one Legal Advisor to the Foreign Office to be a solemn affirmation of the orthodox doctrine; he plainly could not believe that it could be otherwise.255 De Visscher, Théories et réalités en droit international public (n 247), 413. De Visscher, Problèmes d’ interprétation (n 219), 12. 250 Jurisdiction of the Courts of Danzig (n 139), 17–18. 251 S Schwebel, ‘The Treatment of Human Rights and of Aliens in the International Court of Justice’ in V Lowe and M Fitzmaurice, Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (Cambridge University Press, 1996), 327; S Schwebel, ‘Human Rights in the World Court’ (1991) 24 Vand JTL 945, 955–6; Lauterpacht, The Development of International Law (n 171), 174; Crawford, International Law as an Open System (n 174), 27–8. 252 De Visscher, Théories et réalités (n 247), 415; Schwebel, ‘Human Rights in the World Court’ (n 251), 955. 253 Jurisdiction of the Courts of Danzig (n 139), 17. 254 Lauterpacht, The Development of International Law (n 171), 175. 255 See E Beckett, ‘Decisions of the Permanent Court of International Justice on Points of Law and Procedure of General Application’ (1930) 11 BYIL 1, 4 (‘Applying the general principle that 248 249

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This dovetails neatly with that which McNair held to be ‘the essential quest in the application of treaties’—‘to search for the real intention of the contracting parties’,256 or as he said as President of the Palena Tribunal: the object of the process of treaty interpretation is ‘to ascertain the common will’ of the parties.257 All the rules and maxims which have been taken to make up the canons of treaty interpretation, he observed, ‘are merely prima facie guides to the intention of the parties, and must always give way to contrary evidence of the intention of the parties in a particular case’.258 It must be right therefore, as Watts said of the continuity of the law of treaties, that a reader of ‘Lord McNair’s magisterial Law of Treaties, published in 1961, is unlikely to be greatly surprised by the provisions of the Vienna Convention’; ‘there was a broad international consensus as to the rule of international law applicable to treaties, and that consensus was reflected in the Convention’.259 In fact Lauterpacht had come to this conclusion in his 1927 study on private law sources and analogies of international law, where he said, of contracts and treaties alike, that: ‘The ultimate object of the work of interpretation is to explain and classify legal transactions according to the declared will of both parties.’260 The same contractual point was made by Huber, and later Waldock in the ILC debates: ‘il est évident que l’essentiel d’un contrat, d’une convention, d’un traité est la volonté concordante des parties’.261 It is apposite, therefore, to look at the possible analogy of contract interpretation, in order to see whether, as we are often told in the literature, it is the search for the meaning of the text or the intention of the parties that is controlling in that area of the law. Treaty interpretation was seen, in Brierly’s words quoted above, as being about ‘giv[ing] effect to the intention of the parties as fully and fairly as possible’,262 and nothing else. Rules on treaty interpretation were seen as obfuscating, and international law only creates rights and duties as between states, the Court, in their advisory opinion relating to the Danzig Railway Officials, said the position was the same with regard to agreements between states’); E Beckett, ‘Diplomatic Claims in Respect of Injuries to Companies’ (1931) 17 GST 175, 176 (‘the Permanent Court have decisively rejected this view, and adopted the position that States, and States alone, have rights under International Law’). See the criticism of Beckett’s surprising, and repeated, descriptions of Jurisdiction of the Courts of Danzig in Lauterpacht, The Development of International Law (n 171), 175. 256 McNair, The Law of Treaties (n 25), 366. 257 Argentina/Chile Frontier Case (Palena) (n 34), 89. See also M Shaw, International Law (6th edn, Cambridge University Press, 2008), 496. 258 McNair, The Law of Treaties (n 25), 185. 259 A Watts, ‘The International Court and the Continuing Customary International Law of Treaties’ in N Ando, E McWhinney, and R Wolfrum (eds), Liber Amicorum Judge Shiregu Oda (Kluwer, 2002), 251. 260 Lauterpacht, Private Law Sources and Analogies (n 199), 187. 261 M Huber (1952) 45 Ann de l’Inst 199; ILC Ybk 1964/II. 262 Brierly, The Law of Nations (n 197), 168. Also: Calvo, Dictionnaire (n 28), 400; A Rivier, Principes du droit des gens (n 80) at [157]; J Westlake, International Law I (Cambridge University Press, 1904), 282; Sørensen, Les sources du droit international (n 36), 214–15; Fitzmaurice, ‘Treaty Interpretation and Certain other Treaty Points’ (n 198), 3; Lauterpacht, Private Law Sources and Analogies (n 199), 187; Lauterpacht, The Development of International Law (n 171), 136; Huber (n 261), 200–1; de Visscher, Problèmes d’ interprétation (n 219), 18; de Visscher, Théories et réalités (n 247), 414; McNair, The Law of Treaties (n 25), 366.

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detrimental to the search for the intention of the parties; logically, therefore, there could, in Brierly’s words, be ‘no technical rules in international law for the interpretation of treaties’.263 The debates in the ILC in the run-up to the Vienna Convention were closely linked to the question of what role to consign the travaux préparatoires in treaty interpretation. Lauterpacht had been an ardent advocate of giving pride of place to preparatory works.264 As Special Rapporteur for the Institut de Droit International, Lauterpacht drew up ‘projets de résolution’ on the interpretation of treaties where, in number 2, he suggested in a text best rendered in the original that: Le recours aux travaux préparatoires, lorsqu’ils sont accessibles, est notamment un moyen légitime et désirable aux fins d’établir l’intention des parties dans tous les cas où, malgré sa clarté apparente, le sens d’un traité prête à controverse. Il n’y a aucun motif d’exclure l’usage de travaux préparatoires dûment consignés et publiés, à l’encontre d’États ayant adhéré au traité postérieurement à sa signature par les parties originaires.265

This approach was criticized. Prominent in criticizing the approach was Beckett, who saw the reliance upon travaux préparatoires as a danger to the legal certainty which to his mind could be procured only if one stuck as closely as possible to the text of the treaty, even to the exclusion of other means of interpretation.266 If, he averred, too ready admission of preparatory work was allowed, the state which had found a clear provision of the treaty inconvenient was likely to be furnished with a tabula in naufragio; there would always be something in the preparatory work fit to support their contention.267 It is worth mentioning, however, that Beckett made an important concession by taking a large view of what the treaty was; quite a number of the elements which he saw as being part of the treaty and not of the travaux préparatoires could very well have been seen as part of the preparatory works.268 This of course considerably softens the brunt of his claims. 263 Brierly, The Law of Nations (n 197), 168–9. Also: ILC Ybk 1964/II, 53; Westlake, International Law I (n 262), 282; E Hambro, The Case Law of the International Court: A Repertoire of the Judgments, Advisory Opinions and Orders of the International Court of Justice Including Dissenting and Separate Opinions IV–A 1959–1963 (AW Sijthoff, 1966) 133; Fitzmaurice, ‘Treaty Interpretation and Certain other Treaty Points’ (n 198), 3; Thirlway, ‘Law and Procedure 1960–1989 Part III’ (n 64), 19. See now, however, Clapham, Brierly’s Law of Nations (n 102), 352–3. 264 Lauterpacht, ‘De l’interprétation des traités’ (n 72), 366. 265 Lauterpacht, ‘De l’interprétation des traités’ (n 72), 433. 266 Beckett (n 234), 434–4. 267 Beckett (n 234), 438–40. Also: Jiménez de Aréchaga at the First Session of the 26 March–24 May 1968 United Nations Conference on the Law of Treaties: A/CONF.39/C.1/SR.31 160. See Fitzmaurice and Vallat, ‘Sir (William) Eric Beckett, KCMG, QC (1896–1966)’ (n 234), 307. 268 The list is surprisingly long: the ‘treaty’ will on his admission ‘include everything that was signed at the time even though this consists of a main document, called the treaty, together with a whole lot of letters, protocols and even (probably) agreed minutes. . . . In addition to everything which is published and registered, there may exist yet further specially initialled minutes which have been deliberately prepared for the purposes of its interpretation . . . and further, within the general mass of the travaux préparatoires there may be special reports of a Rapporteur with regard to which it may be demonstrated that it falls into a special category, being specially adapted as a guide for interpretation’: Beckett (n 234), 442.

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Later, the problem with too ready a reliance upon the travaux préparatoires was summarized critically by the ILC in 1966 as being that ‘it is beyond question that the records of treaty negotiations are in many cases incomplete or misleading, so that considerable discretion has to be exercised in determining their value as an element of interpretation’.269 Nonetheless, as explained by Mortenson,270 the VCLT is not as hostile to travaux as is sometimes thought,271 Special Rapporteur Waldock having also stressed that travaux: are simply evidence to be weighed against any other relevant evidence of the intentions of the parties, and their cogency depends on the extent to which they furnish proof of the common understanding of the parties as to the meaning attached to the terms of the treaty.272

According to the approach taken by the ILC, and unanimously adopted by the initial parties to the Vienna Convention, in what would become Articles 31–33 of the Convention, the ILC made clear that to the extent that it was confronted with a choice between the textual approach, the intentions approach, and the teleologic approach, it chose the textual one.273 Leading authors have assumed that in choosing this approach the ILC had dismissed, in one fell swoop, the age-old principle according to which the aim of treaty interpretation was to ascertain what was the common intention of the parties.274 But whilst the ILC did indeed opt for that which it termed the textual approach it was not the case that the ILC jettisoned the idea that the object of treaty interpretation is the ascertainment of the intention of the parties. It is, as explained above, plain enough that Article 31(1) does not mention in terms the intention or will of the parties. Only in Article 31(4) does the general rule have recourse to the intention of the parties: ‘A special meaning shall be given to a term if it is established that the parties so intended’.275 What is more, Waldock observed at the Vienna Conference that it had, within the later stages of the debates of the ILC, been said ‘with some justice’ that Article 31(4) was supererogatory, as Article 31(4) added nothing to Article 31(1).276 Conversely, in Lauterpacht’s 1950 ‘projet de résolution’, the intention of the parties enjoyed pride of place in the very terms of the first article: La recherche de l’intention des parties étant le but principal de l’interprétation, il est légitime et désirable, dans l’intérêt de la bonne foi et de la stabilité des transactions international, de prendre le sens naturel des termes comme point de départ du processus d’interprétation.277 270 ILC Ybk 1966/II, 220. Mortenson, ‘The Travaux of Travaux’ (n 36), 820–1. 272 See eg Sorel and Boré Eveno, ‘Article 31’ (n 9), 817. ILC YBK 1964/II, 58. 273 ILC Ybk 1964/II, 220–1. 274 Sorel and Eveno, ‘Article 31’ (n 9), 804–37; Sinclair, The Vienna Convention (n 9), 114–53; Jacobs, ‘Varieties of Approach to Treaty Interpretation’ (n 9); Kolb, Interprétation et création du droit international (n 9); McLachlan, ‘Systemic Integration’ (n 9), 291; Orakhelashvili, The Interpretation of Acts and Rules (n 9), 285; Brownlie, Principles of International Law (n 9), 630–1. 275 Gardiner, Treaty Interpretation (n 11), 6–7. 276 H Waldock, United Nations Conference on the Law of Treaties: Official Records, First Session, Vienna, 1968: Summary Records 184 at [70]. 277 Lauterpacht, ‘De l’interprétation des traités’ (n 72), 433. 269 271

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As will have become clear, by contrast, ‘the intention of the parties’ is conspicuous by its absence in Article 31(1). It is important to make the point, however, that what the general rule of interpretation does is to enumerate the means of interpretation; it does not set out to explicate what the aim of treaty interpretation is.

3.3.5 Treaty interpretation: contract interpretation writ large? It is undoubtedly true that international tribunals have taken inspiration from national private law, both when it comes to the material principles they apply and when it comes to interpretation. Rivier went so far as saying that the principles of treaty interpretation are, in short and mutatis mutandis, those of the interpretation of agreements between individuals.278 This seems like the application in the field of interpretation of the old adage that international law is ‘but private law writ large’.279 Lauterpacht observed that when a legitimate occasion arises to apply a private law principle common to all systems of private jurisprudence, then it is useless and misleading to oppose the recourse to a corresponding rule of private law. The question, ‘When does such a legitimate occasion arise?’ he answered by saying that it arises mainly in all cases in which the parties to a treaty have themselves deliberately made use of a conception of private law. This would for example be the case when the parties employ such technical terms of private law as lease, mandate, prescription, purchase, servitude, usufruct, trust, or due diligence. When it came to interpretation, however, what he saw as the fundamental identity of treaties and contracts to him meant that the techniques of contract interpretation could serve as analogy en bloc.280 The practice of international tribunals seems to bear out Lauterpacht’s proposition. Thus the Tribunal in Diverted Cargoes held that: les principes du droit international qui gouvernent l’interprétation des traités ou accords internationaux ainsi que l’administration des preuves, ont été dégagés par la doctrine et surtout par la jurisprudence internationale en correspondance étroite avec les règles d’interprétation des contrats adoptées à l’intérieur des nations civilisées.281

As much has been said by other international tribunals too. The Tribunal in Boundaries in the Island of Timor relied on analogies from the interpretation of contracts and spoke of ‘the entire accord of private law and the law of nations on this point’.282 In Abu Dhabi the Tribunal based its interpretation entirely on what it saw as the applicable rules of construction as taken from private law.283 As Crawford has Rivier, Principes du droit des gens (n 80) at [157]. TE Holland, Studies in International Law and Diplomacy (Clarendon Press, 1898), 152. 280 Lauterpacht, Private Law Sources and Analogies (n 199), 181–90. 281 Diverted Cargoes Case (Greece v United Kingdom) (n 90), 70. 282 Affaire de l’ île de Timor (Pays-Bas c Portugal) (n 238), 497 (the reference here and above is to the English translation provided by the Permanent Court of Arbitration: Boundaries of the Island of Timor (Netherlands v Portugal) award of 25 June 1914). 283 Petroleum Development (Trucial Coast) Ltd and the Sheikh of Abu Dhabi (1952) 1 ICLQ 247, 251. 278

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observed, in a more general context, it is only natural that international tribunals should choose, edit, and adapt elements from other developed systems; the result is a body of international law the content of which has surely been influenced by domestic law but which is still its own creation.284 This is surely also the case with treaty interpretation, and its relation to the construction of contracts. Much as we saw above, with regard to the literature on treaty interpretation and the role of the intention of the parties, it has been argued in the literature and in some arbitral awards that the analogy which may be drawn from the interpretation of contracts is mainly one which counsels a focus on the letter of the contract and not on the intention of the parties. This argument needs to be analysed. The common law approach to the interpretation of contracts is sometimes portrayed as focusing on the terms of the contract, to the detriment of the intentions of the parties. Thus in French doctrine, for example, the common law approach is described as one where it would be contrary to good faith to try to escape the letter of the contract by arguing on the basis of the intentions of the parties.285 This approach has also found an echo in English doctrine; one author recently expressed that contract construction ‘is not concerned with identifying some (fictional) common intention of the parties’.286 Examples may also be found of this in older arbitral practice. Thus Lord Asquith in Abu Dhabi, holding that though English municipal law was not as such applicable, some of its rules were so ‘firmly grounded in reason, as to form part of this broad body of jurisprudence—this “modern law of nature” ’ on which he felt the award must be based, said that ‘the English rule which attributes paramount importance to the actual language of the written instrument in which the negotiations result seems to me no mere idiosyncrasy of our system, but a principle of ecumenical validity’.287 As will become clear, this is certainly not an accurate description of how English courts interpret contracts today, and it is not entirely clear that this was an accurate description in the 1950s either.288 It is convenient to begin the analysis with French law, as English law has been contrasted with the French position. In French law the interpretation of contracts aims above all to find the common intention of the parties. Article 1156 of the Code civil is thus in the following terms: ‘On doit dans les conventions rechercher quelle a été la commune intention des parties contractantes, plutôt que de s’arrêter au sens littéral des termes.’ As one commentator has put it: En droit français, l’interprétation sert principalement à rechercher quelle a été la commune intention des parties, c’est-à-dire quelles étaient les termes de leur accord réel. Dans Crawford, Brownlie’s Principles of International Law (n 186), 35. See eg M Fabre-Magnan, Droit des obligations: Contrat et engagement unilatéral (2nd edn, Presses universitaires de France, 2010), 70 (‘il sera jugé de mauvaise foi d’essayer de s’échapper de la lettre du contrat pour arguer de la volonté réelle des parties’) and 502 (where the example of Shakespeare’s The Merchant of Venice act IV, scene one is used as an example of how ‘la lettre du contrat’ is what is most important in the English approach to contract interpretation). 286 G McMeel, The Construction of Contracts: Interpretation, Implication, and Rectification (2nd edn, Oxford University Press, 2011), 28. 287 Petroleum Development (Trucial Coast) Ltd and the Sheikh of Abu Dhabi (n 283), 251. 288 See eg AB Keith, Elements of the Law of Contracts (Clarendon Press, 1931), 77–9. 284 285

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la mesure où la volonté interne est la source et la mesure de l’engagement des parties, c’est elle qu’il faut prioritairement analyser pour interpréter le contrat.289

Though rules exist with regard to how contracts are to be interpreted, the overarching rule according to which one must look for the common intention of the parties trumps all other considerations. This is also the approach taken in the UNIDROIT principles of international commercial contracts.290 Article 4.1 of the UNIDROIT principles thus provides that ‘A contract shall be interpreted according to the common intention of the parties’. The comment to Article 4 explicates that the provision is based upon the principle that in determining the meaning to be attached to the terms of a contract, preference is to be given to the intention common to the parties. In consequence, a contract term may be given a meaning which differs both from the literal sense of the language used and from the meaning which a reasonable person would attach to it, provided that such a different understanding was common to the parties at the time of the conclusion of the contract.291

It can be seen, in the approach of French contract law and of UNIDROIT, that the spirit of a compound is more important than its letter. This has in French law been seen as a consequence of the principle of good faith; to be in good faith implies not hiding behind the letter of the contract.292 If in other words a French court seized of a contractual dispute has reason to believe that the letter of the contract does not conform to the intention of the parties it cannot stop at the letter. This also applies where the terms of the contract are very general; the spirit of the contract must prevail.293 French contract law places, in common with international law,294 a premium on effectiveness. Article 1157 of the Code civil codifies that which in the law of treaties is called the principle of effectiveness: ‘Lorsqu’une clause est susceptible de deux sens, on doit plutôt l’entendre dans celui avec lequel elle peut avoir quelque effet que dans le sens avec lequel elle n’en pourrait produire aucun.’ All contract terms which may lead one to doubt the real intention of the parties must be checked in the sense that one must make sure that the latter conform to the intention of the parties.295 In other continental law, too, this approach is prevalent.296 Thus the German Civil Code makes clear, in Article 133, that ‘in the interpretation of a Fabre-Magnan, Droit des obligations (n 285), 484. UNIDROIT, Principles of International Commercial Contracts 1994. UNIDROIT, Principles of International Commercial Contracts 2010 (UNIDROIT 2010), 137. 292 Cour de cassation, Com, 20 October 1998, no 96–10259. 293 See eg Art 1163: ‘Quelque généreux que soient les termes dans lesquels une convention est conçue, elle ne comprend que les choses sur lesquelles il paraît que les parties se sont proposé de contracter’ and Art 1164: ‘Lorsque dans un contrat on a exprimé un cas pour l’explication de l’obligation, on n’est pas censé avoir voulu par là restreindre l’étendue que l’engagement reçoit de droit aux cas non exprimés’. 294 Fisheries Jurisdiction (Spain v Canada) Jurisdiction of the Court (Judgment) [1998] ICJ Rep 432, 455; Dispute between Argentina and Chile concerning the Beagle Channel (1977) 11 RIAA 53, 231; Corfu Channel [1949] ICJ Rep 4, 24; Ambatielos case (Jurisdiction) (Judgment) [1952] ICJ Rep 28, 45. 295 Cour de cassation, Civ, 30 January 1996, no 93–20330; Cour de cassation, Com, 14 October 2008, no 07–18955; Fabre-Magnan, Droit des obligations (n 285), 486–7. 296 PDV Marsh, Comparative Contract Law (Gower, 1994), 38–9. 289

290 291

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declaration of intent the true intention is to be ascertained without taking account of the literal meaning of the terms’, and this is qualified by Article 157, which provides that: ‘agreements must be interpreted according to good faith, ordinary usage being taken into account’. Article 1247 of the Italian Civil Code is in the following terms: ‘Nelle convenzioni si deve indagare quale sia stata la commune intenzione delle parti contrahenti, anziché attenersi al senso letterale delle parole’. Thus in Italian law contract interpretation is about establishing the common intention of the parties, and the contract interpreter is in this endeavour aided considerably by the principle of good faith.297 In fact the English approach is very similar. In the common law the aim of interpreting a provision in a contract is to determine what the parties meant by the language used. An overview of the English approach was given by Lord Bingham, who observed that: There are (or were) some who favour a very literal reading of the precise terms in which the parties have chosen to express their bargain. Others would interpret the contract in a broader contextual setting of facts known to the parties when contracting. The opinion currently prevailing in England and Wales is that the court should do both, starting with a careful consideration of what the parties have actually written but reading this in the light of what the parties knew and may objectively be taken to have intended. In this way, it is hoped, the reasonable intentions and expectations of honest businessmen, dealing in good faith, will be given effect.298

It was very much in this mode that Lord Hoffmann, in Investors Compensation Scheme Ltd v West Bromwich Building Society,299 summarized the principles on which the interpreter of a contract is to rely in English law. The gist of Lord Hoffmann’s judgment is conveyed by his first and fifth principles on contract construction. According to his first principle, interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties. His fifth principle says that if one can conclude from the background of the contract that something must have gone wrong with the language of the contract then the law does not require judges to attribute to the parties an intention which they plainly could not have had.300 These principles are well-established points of departure,301 and have been approved in later jurisprudence.302 They do not, however, necessarily provide a 297 G Alpa and V Zeno-Zencovich, Italian Private Law (Routledge-Cavendish, 2007), 180; G Alpa, G Fonsi, and G Resta, L’ interpretazione del contratto: orientamenti e techniche della giurisprudenza (2nd edn, Giuffrè Editore, 2001), 10; G Alpa, Nuove frontiere del diritto contrattuale (Edizioni Seam, 1998), 7–30; G Alpa, Casi dubbi in materia di diritto contrattuale (Casa editrice dott Antonio Milani, 1998). 298 T Bingham, ‘Foreword’ in A Burrows and E Peel (eds), Contract Terms (Oxford University Press 2007), v. 299 Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896. 300 Investors Compensation Scheme Ltd v West Bromwich Building Society (n 299), 912F–913G. 301 C Mitchell, ‘Obligations in Commercial Contracts: A Matter of Law or Interpretation?’ (2012) 65 CLP 1, 2. 302 See eg Bank of Credit and Commerce International Sa (In Liquidation) v Ali (No 1) [2001] UKHL 8, [2002] 1 AC 251; Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38, [2009] 1

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solution set in stone. The leading Supreme Court authority is now Rainy Sky SA and others v Kookmin Bank, where Lord Clarke, with whom the rest of the Supreme Court agreed, said that: ‘the ultimate aim of interpreting a provision in a contract, especially a commercial contract, is to determine what the parties meant’.303 The principles of contract construction do not, however, said Lord Clarke, citing Hoffmann LJ in Co-operative Wholesale Society Ltd v National Westminster Bank plc, ‘mean that one can rewrite the language which the parties have used in order to make the contract conform to business common sense. But language is a very flexible instrument and, if it is capable of more than one construction, one chooses that which seems most likely to give effect to the commercial purpose of the agreement’.304 The relation between this business sense and the wording of the contract was discussed extrajudicially by Lord Steyn, who in an article said that, generally speaking: commercially minded judges would regard the commercial purpose of the contract as more important than niceties of language. And, in the event of doubt, the working assumption will be that a fair construction best matches the reasonable expectations of the parties.305

Lord Clarke said in Rainy Sky SA and others v Kookmin Bank that he agreed with this approach and also with what Lord Steyn held in Society of Lloyd’s v Robinson, where the latter observed that: in the process of interpreting the meaning of the language of a commercial document the court ought generally to favour a commercially sensible construction. The reason for this approach is that a commercial construction is likely to give effect to the intention of the parties. Words ought therefore to be interpreted in the way in which a reasonable commercial person would construe them. And the reasonable commercial person can safely be assumed to be unimpressed with technical interpretations and undue emphasis on niceties of language.306

In English law, therefore, for the purposes of the interpretation of contracts, the intention of the parties is the meaning of the contract.307 The real object of contract interpretation, in the common law as in the civil law law, is to give effect to the intention of the parties. In no way are these principles new to the common law of contract or to the civil law. Upholding the common intention of the contracting parties has been presented as the defining philosophy of the

AC 1101 at [21]–[26] (Lord Hoffmann); Pink Floyd Music Ltd v EMI Records Ltd [2010] EWCA Civ 1429, [2011] 1 WLR 770 at [17] (Lord Neuberger MR). 303 Rainy Sky SA and others v Kookmin Bank [2011] UKSC 50, [2011] 1 WLR 2900 at [14]. 304 Co-operative Wholesale Society Ltd v National Westminster Bank plc [1995] 1 EGLR 97, 98; Glynn v Margetson & Co [1893] AC 351, 359 (Lord Halsbury LC); Homburg Houtimport BV v Agrosin Private Ltd: The Starsin [2004] 1 AC 715 at [10] (Lord Bingham). 305 J Steyn, ‘Contract Law: Fulfilling the Reasonable Expectations of Honest Men’ (1997) 113 LQR 433, 441. 306 Society of Lloyd’s v Robinson [1999] 1 All ER (Comm) 545, 551. See also Gan Insurance Co Ltd v Tai Ping Insurance Co [2001] EWCA Civ 1047, [2001] 2 All ER (Comm) 299 (Mance LJ); Arbuthnott v Fagan [1995] CLC 1396, 1400 (Bingham MR). 307 K Lewinson, The Interpretation of Contracts (5th edn, Sweet & Maxwell, 2011), 36.

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English common law of contract for upwards of 150 years,308 and as we saw from the provisions of the French Civil Code, they represented the orthodox view also in early nineteenth-century France. In spite of the variety of its objects, the treaty, as a concept of international law, has been mainly indebted in the course of its development to the contract of private law and of contract construction in contract law.309 The Tribunal in Azpetrol was right to point out that ‘in interpreting a contract, contemporary English law has few technical rules’.310 This conclusion is strikingly similar to Brierly’s classic proposition with respect to treaty interpretation: ‘there are no technical rules in international law for the interpretation of treaties’.311 It is true, as Clapham has said, that with the adoption of the detailed VCLT rules, this proposition may indeed be questioned,312 but Brierly’s proposition deserved to be retained to the extent that, in common with that which may be concluded from the perspective of contract law, it warns against a focus on maxims of construction that may obscure the real objective of interpretation, which ‘can only be to give effect to the intention of the parties as fully and fairly as possible’.313 On this background it is easy to agree with the Tribunal in Azpetrol, when it concluded that in most respects the approach taken by English courts to contract construction ‘is similar to that prescribed by international law for the interpretation of treaties’.314 In Eurotunnel the Tribunal stated that the principles of interpretation laid down in the VCLT ‘are declaratory also for agreements between States and private parties under international law and should be applied to resolve any discrepancies’.315 Indeed, while there is a distinction between treaty and contract, they are part of the same one world;316 or, as Fitzmaurice once said: The view that the intentions of the parties are relevant, and that to ascertain and give effect to them is the prime and sole legitimate object of interpretation, is not only the 308 C Mitchell, ‘Obligations in Commercial Contracts: A Matter of Law or Interpretation?’ (n 301), 2. 309 McNair, The Law of Treaties (n 25), 6. 310 Azpetrol International Holdings BV, Azpetrol Group BV, Azpetrol Oil services Group BV v the Republic of Azerbaijan, ICSID Case No ARB/06/15, 8 September 2009 at [61]. The arbitral Tribunal adds the proviso that this is with the possible exception of how, first, English law has traditionally precluded reference to the negotiating history of an agreement as an aid to interpretation (Prenn v Simmonds [1971] 1 WLR 1381, 1384–85), and, secondly, how English law does not normally admit reference to the subsequent conduct of the parties as an aid to the interpretation of a contract (L Schuler AG v Wickman Machine Tools Sales Ltd [1974] AC 235, 252). The Tribunal notes, however, ‘that the view that the negotiating history and the subsequent practice of the parties are not admissible as an aid to interpretation in English law has not gone unchallenged’ ([65]). 311 Brierly, The Law of Nations (n 197), 168. 312 Clapham, Brierly’s Law of Nations (n 102), 352; Gardiner, ‘The Vienna Convention Rules’ (n 119), 476. 313 Brierly, The Law of Nations (n 197), 168. 314 Azpetrol International Holdings BV, Azpetrol Group BV, Azpetrol Oil Services Group BV v the Republic of Azerbaijan (n 310), at [62]. 315 The Channel Tunnel Group Ltd and France-Manche SA v United Kingdom and France 132 (2007) ILR 1, 34 at [92]. See Crawford, Chance, Order, Change (n 225), 209. 316 J Crawford, ‘Treaty and Contract in Investment Arbitration’ (2008) 24 Arb Int 351, 373–4.

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traditional but also the juridically natural view, derived from well-known principles of private contract law.317

3.3.6 Domestic law and evolutionary interpretation While it used to be the case that authors would say that statutes were to be interpreted more strictly than treaties, this is hardly the case any more.318 Many national systems could here be given as examples. The common law–civil law view adopted above could have been fruitful here too. In French law the courts have to a very large extent been willing to adopt evolutionary interpretations of legal terms, and this is not least due to the way in which French legislation has been drafted, certainly since the Napoleonic Codes but also before that.319 The French Cour de cassation took an evolutionary approach to staute interpretation when, in a famous line of cases,320 it interpreted Article 2279 of the Civil Code. This article provides that: ‘En fait de meubles, la possession vaut titre’ (‘In matters of movables, possession is equivalent to a title’). When, in 1804, the article was drafted one could not have thought of non-corporeal property, as that did not at the time exist in the way in which it would come into existence in the nineteenth century. The question therefore arose as to whether such movables were to be seen as being covered by the terms of the article. The Cour de cassation, by way of evolutionary interpretation of the terms used by the legislator, held that these later phenomena were in fact covered, as the term ‘meubles’ was of itself capable of generalization and thus applicable to all types of movables.321 German courts, too, have taken this approach, while admittedly it may have been less pronounced than it has been in France.322 The German Federal Constitutional Court in a line of authorities beginning in the early 1950s developed German constitutional law by reliance upon a doctrine of ‘Verfassungswandel’, according to which terms in the Basic Law were interpreted evolutionarily.323 In US law the courts take an approach to both statutory and constitutional interpretation which is very similar to the one taken by international tribunals to treaty interpretation and the evolution of treaty concepts, though of course that is a particularly fraught issue within US law.324 317 Fitzmaurice, ‘Treaty Interpretation and Certain other Treaty Points’ (n 198), 3. Also: Huber (n 261), 199. 318 Westlake, International Law I (n 262), 293–4; Clapham, Brierly’s Law of Nations (n 102), 349–51. 319 JL Halpérin, Le Tribunal de cassation et les pouvoirs sous la Révolution (1790–1799) (LGDJ, 1987); JL Halpérin, L’ impossible Code civil (Presses Universitaires de France, 1992). 320 See eg Cour de cassation (1re chambre civile) 20 October 1982. 321 F Terré, Introduction générale au droit (9th edn, Dalloz, 2012), 472. 322 K Larenz and CW Canaris, Methodenlehre des Rechswissenschaft (Springer, 1992); S Vogenauer, Die Auslegung von Gesetzen in England und auf dem Kontinent: Eine Vergleichende Untersuchung der Rechtsprechung und ihrer historischen Grundlagen I (Mohr Siebeck, 2001). 323 BVerfGE 2, 280 (401); BVerfGE 3, 407 (422). Also: A Voßkuhle, ‘Gibt es und wozu nutzt eine Lehre vom Verfassungswandel?’ (2004) 43 S 450. 324 See WN Eskridge, Dynamic Statutory Interpretation (Harvard University Press, 1994); LM Balkin, Living Originalism (Harvard University Press, 2011); LW Levy, Original Intent and the Framers’ Constitution (Macmillan, 1988); DA Strauss, The Living Constitution (Oxford University

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In a famous case before the Dutch courts the District Court of Rotterdam was faced with the question of whether a provision which referred to ‘telegraph cables’ could be interpreted as to include telephone cables, even though these had not yet been developed at the time that the 1884 Convention on the Protection of Submarine Cables325 was concluded. The court thought that it was reasonable to include the later telephone cables in the interpretation of what was protected under the convention.326 Nonetheless, the present analysis will concentrate on the approach taken by the common law courts. In addition to the fact that space would preclude going into all the systems just mentioned in any depth, there is another reason why the common law case law has been chosen. It is the open way in which the Supreme Court of the United Kingdom and Wales (previously the Judicial Committee of the House of Lords) and the Privy Council argue and explicate the way in which they interpret and develop the law: they for this reason provide material that particularly easily lends itself to analysis in the present context. The style of judgment in the common law resembles the one adopted by international tribunals. A striking example in this regard is New Zealand Maori Council v Attorney-General.327 The New Zealand Court of Appeal in this case took the same approach to the Treaty of Waitangi, a convention signed in 1840 between the Maori and Great Britain. President Sir Robin Cooke, on behalf of a unanimous Court of Appeal, stated that ‘the treaty has to be seen as an embryo rather than a fully developed and integrated set of ideas’; the correct approach would be to interpret the treaty ‘widely and effectively and as a living instrument taking account of the subsequent developments of international human rights norms’.328 The Privy Council in Edwards329 had to decide whether, for the purpose of section 24 of the British North America Act 1867 (the Act containing at the time the Canadian constitution) women were in fact ‘persons’, and whether by extension they could be members of the Canadian Senate. As late as 1909, in Nairn v University of St Andrews, the House of Lords had held that women graduates from Scottish universities were not ‘persons’ who were able to vote in the election of members of Parliament for the Scottish universities.330 It was plain enough that when the Act was adopted the term had referred to men only. In its judgment, written by Sankey LC, the board of the Privy Council lay the foundations of that which would later be referred to in Canadian Press, 2010); see, however, A Scalia, ‘Originalism: The Lesser Evil’ (1989) 57 U Cinc LR 849; A Scalia, ‘Common Law Courts in a Civil Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws’ in A Gutmann (ed), A Matter of Interpretation: Federal Courts and the Law (Princeton University Press, 1997). 325 Convention on the Protection of Submarine Cables, 14 March 1884, TS 380. 326 The Netherlands (PTT) and the Post Office (London) v Nedlloyd (1977) 74 ILR 212. 327 New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641. 328 New Zealand Maori Council v Attorney-General (n 327), 655–6 and 663. 329 Edwards v Attorney-General of Canada [1930] AC 124. 330 Nairn v University of St Andrews [1909] 1 AC 1.

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constitutional jurisprudence as ‘living tree interpretation’ and adopted an evolutionary interpretation.331 In fact the way in which the Privy Council interpreted the statute in Edwards could be thought to be surprisingly akin to the method used by international tribunals, such as the International Court in Navigational Rights.332 In a two-step approach the Privy Council, first, took as its starting point the intentions of Parliament, which necessarily were contemporaneous with the adoption of the statute; then, secondly, it underlined that the taking of this as a starting point did not, however, signify that as the term’s meaning was no longer the same as it was at the date of conclusion, no account should ever be taken of its meaning at the time when the statute was to be interpreted for the purposes of its application. Thus the board of the Privy Council in its interpretation turned, at the outset, to the Act’s ‘object and purpose’. It took into account ‘the facts existing at the time with respect to which the Legislature was legislating’333 as a legitimate topic to consider in ascertaining what was the object and purpose of the Legislature passing the Act. Then it turned from the conditions contemporaneous with the adoption of the statute to the conditions required by the evolution of law. The account which the Privy Council gave of the passing of the Act was one which set the stage for evolutionary interpretation: it stressed that the communities of the Commonwealth ‘embrace countries and peoples in every stage of social, political and economic development and undergoing a continuous process of evolution’.334 In view of this a restrictive interpretation was to be avoided; the board did not in any way wish to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation. It was plainly the demands of evolution that the Privy Council had in mind when it continued to say that the ‘British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits’.335 Lady Hale, in an analysis of Edwards, concluded that the common law is no stranger to the concept of evolutionary interpretation.336 She focused on how common law courts when it comes to the interpretation of statutes in theory look for the ‘intention of Parliament’. At times this may be somewhat of an illusion, however, ‘because on most points which come before us Parliament did not have any intention at all’.337 Common law judges then, in common with international judges, infer the intention of the legislation from the terms used, read in the light of the statutory purpose.338

331 See eg B Hale, ‘Common Law and the Convention: The Limits to Interpretation’ [2011] EHRLR 534, 534–5. 332 Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) (n 17). 333 Also: Herron v Rathmines and Rathgar Improvement Commissioners [1892] AC 498. 334 Edwards v Attorney-General of Canada (n 329), 135 (emphasis added). 335 Edwards v Attorney-General of Canada (n 329), 136. 336 Hale, ‘Common Law and the Convention’ (n 331). The approach is criticized by R Ekins, The Nature of Legislative Intent (Oxford University Press, 2012), Chs 7–9. 337 See JSC Reid, ‘The Judge as Lawmaker’ (1972) 12 JSPTL 22. 338 Hale, ‘Common Law and the Convention’ (n 331), 535–6.

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Many modern cases could be relied on here to underscore this point.339 Two examples show the approach taken today by the courts in the United Kingdom to evolving statutory terms particularly clearly. These two examples show, generally, the affinity which exists between the evolutionary interpretations adopted by international tribunals and the interpretations adopted in a number of cases by common law courts, but they also each bring out a specific point with regard to evolutionary interpretation. First, the UK Supreme Court in Yemshaw340 gave an illustrative example of just how naturally evolutionary interpretation comes to common lawyers. In this case the generic statutory term in issue was ‘violence’. This kind of generic statutory term is, the Supreme Court said, capable of accommodating change and development over time. This, as Lord Brown underscored, was nothing else than applying a ‘ “living instrument”, “always speaking” approach to statutory construction’.341 The phrase ‘always speaking’ goes back to the Victorian draftsman Lord Thring, who exhorted draftsmen to draft legislation so that ‘an Act of Parliament should be deemed to be always speaking’.342 The intention on the part of those drafting legislation that the statute shall be capable of keeping up with the times obviously has a side to evolutionary interpretation, and Lord Brown was surely right to point that out. Secondly, the House of Lords in Quintavalle had to consider whether a live human embryo created by cell nuclear replacement by way of a technique not known at the time when the statute was enacted, fell within the Human Fertilisation and Embryology Act 1990.343 Section 1(1) of that Act said that, except where otherwise stated, the term ‘embryo’ was to mean ‘a live human embryo where fertilisation is complete’. Lord Bingham said the following about the relationship between evolutionary interpretation and the intention of Parliament: There is, I think, no inconsistency between the rule that statutory language retains the meaning it had when Parliament used it and the rule that a statute is always speaking. If Parliament, however long ago, passed an Act applicable to dogs, it could not properly be interpreted to apply to cats; but it could properly be held to apply to animals which were not regarded as dogs when the Act was passed but are so regarded now. The meaning of 339 See eg Grant v Southwestern and County Properties Ltd [1975] Ch 185; Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27; R v Ireland [1998] AC 147; Goodes v East Sussex County Council [2000] UKHL 34, [2000] 1 WLR 1356; Birmingham City Council v Oakley [2000] UKHL 59, [2000] 3 WLR 1936; R v Bristol City Council, ex p Everett [1999] EWCA Civ 869, [1999] 1 WLR 1170; Royal College of Nursing of the United Kingdom v Department for Health and Social Security [1981] AC 800; McCarten Turkington Breen (A Firm) v Times Newspapers Ltd [2001] 2 AC 277; R v R (Rape: Marital Exemption) [1992] 1 AC 599; R v SK [2011] 2 Cr App R 34. 340 Yemshaw (Appellant) v London Borough of Hounslow (Respondent) [2011] UKSC 3, [2011] 1 WLR 433. 341 Yemshaw (n 340), at [56]. 342 H Thring, Practical Legislation (John Murray, 1902), 83. Also: R Cross J Bell, and G Engle, Cross: Statutory Interpretation (3rd edn, Butterworths, 1995), 51; J Bell, ‘Interpreting Statutes over Time’ in F Ost and M van Hoecke (eds), Temps et droit: le droit a-t-il pour vocation de durer? (Bruylant, 1998). 343 R v Secretary of State for Health, ex p Quintavalle (on behalf of Pro-Life Alliance) [2003] 2 AC 687.

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‘cruel and unusual punishments’ has not changed over the years since 1689, but many punishments which were not then thought to fall within that category would now be held to do so.344

This type of interpretation has been explicated in the literature as a construction which does not alter the meaning of the original wording ‘in ways which do not fall within the principles originally envisaged by that wording’.345 These two points—the close connection, pointed out by Lord Brown in Yemshaw, between ‘living instrument’ and ‘always speaking’ interpretation, and Lord Bingham’s point in Quintavalle that statutory terms retain the meaning they always had when they are seen to be always speaking—lead us to a third one. There is in fact a presumption in English law that legislative language is to be interpreted evolutionarily, or as always speaking.346 Lord Steyn summed the point up in the following way: ‘Parliament must be deemed to contemplate that generally its statutes will endure for a considerable time, and that unless statutes evince a contrary intention, they will be judged to be constantly speaking’.347 This, to no less a degree than in contract law, is then squarely based upon the establishment of an intention. For the purposes of comparison it is interesting that there is in fact a presumption in the common law that unless otherwise provided for the statute is to be interpreted evolutionarily, as ‘always speaking’.

3.3.7 ‘Interpretation must be based above all upon the text of the treaty’ Akande has posed the question, should the ordinary meaning of a treaty text trump the intention of the parties with regard to that treaty? His answer to that question is yes. He continues to say that ‘this is what the VCLT says’; ‘the reason to prefer ordinary meaning to the supposed intention of the parties, particularly in a multilateral treaty, is because the intention of the parties can be and is often difficult to glean apart from the actual words used’.348 Similarly, Sorel and Eveno have argued that ‘in conformity with its line of conduct privileging textual interpretation, the ICJ has accorded minimal space for the intention of the parties’.349 The authors suggest that the International Court has placed weight on the intention of the parties only in a strictly supplementary manner, and that this choice has been made so as ‘not to give fodder to critics’.350 If Quintavalle (n 343) at [9]‌. F Bennion, Bennion on Statutory Interpretation (5th edn, LexisNexis, 2008), 288. R Cross, J Bell, and G Engle, Cross: Statutory Interpretation (3rd edn, Butterworths, 1995), 51–2; Bennion, Statutory Interpretation (n 345), 288. 347 J Steyn, Democracy through Law: Selected Speeches and Judgments (Ashgate, 2004), 62–3. 348 D Akande, ‘Can the ICC Prosecute for Use of Chemical Weapons in Syria?’ (EJIL: Talk!, 23 August 2013) . Further: Akande, ‘International Organizations’ in MD Evans (ed), International Law (4th edn, Oxford University Press, 2014), 258–60. 349 Sorel and Eveno, ‘Article 31’ (n 9), 829. 350 Sorel and Eveno, ‘Article 31’ (n 9), 829. 344 345

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one takes this narrow an approach to treaty interpretation it is clear that there may be times when an evolutionary interpretation becomes impossible, blocked by the precedence taken by the letter of the treaty. This approach is certainly not without basis in the International Court’s jurisprudence. In a much quoted dictum in Territorial Dispute, the International Court said that ‘interpretation must be based above all upon the text of the treaty’.351 The dictum follows in the same vein as that which the International Court said on an earlier occasion: ‘if the relevant words in their natural and ordinary meaning make sense in their context, that is an end of the matter’.352 Crawford has warned that ‘it may display a lack of caution to extract general propositions from opinions or judgments devoted to a specific problem or to the settlement of a dispute entangled with the special relations of two states’.353 Nonetheless, as will be seen below, the dictum was for a period referred to by the International Court, as well as other courts, on several occasions, so it deserves to be taken seriously. The passage just quoted from Territorial Dispute has indeed been taken as good law, and was for a while quoted regularly, both in international jurisprudence and in doctrine.354 Nonetheless, and this ties in with Crawford’s point about caution in respect of extracting general propositions from judgments settling specific problems,355 it may be that focusing on judicial dicta in this way is less helpful than what might initially be thought. It is instructive here to advert to that which Lauterpacht said about the alluring but erroneous doctrine of ‘clear meaning’ (according to which ‘il n’est pas permis d’interpréter ce qui n’a pas besoin d’interprétation’),356 ie that: ‘The rule thus formulated seems to be pre-eminently reasonable. Its obviousness explains the frequency with which it is invoked.’357 The same is the case with the dictum that ‘interpretation must be based above all upon the text of the treaty’.358 It has an allure of obviousness but does in the final analysis not give a truthful picture of the interpretive technique used by the Court in the case where it appeared and more generally in the practice of international tribunals. If we take

Territorial Dispute between Libya and Chad (n 86), 21–2 at [41]. Competence of the General Assembly for the Admission of a State to the UN (Advisory Opinion) [1950] ICJ Rep 4, 8. 353 Crawford, Brownlie’s Principles of International Law (n 186), 40. 354 See eg Legality of the Use of Force (Serbia and Montenegro v Belgium) (Preliminary Objections) (Judgment) [2004] ICJ Rep 279 at [100]; Genocide (Bosnia and Herzegovina v Serbia and Montenegro) [2007] ICJ Rep 43, 109–10; Maritime Delimitation and Territorial Questions between Qatar and Bahrain case [1995] ICJ Rep 6, 18 at [33]; Pulau Ligitan/Sipadan [2002] ICJ Rep 625, 645; Appellate Body Report, Japan—Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WTDS11/ AB/R (4 October 1996) 11; Rhine Chlorides Arbitration (Netherlands/France) (n 71), 292–93 at [63]. Also: Shaw, International Law (n 273), 935–6; Akande, ‘International Organizations’ (n 348), 259; M Fitzmaurice, ‘The Practical Working of the Law of Treaties’ in MD Evans, International Law (4th edn, Oxford University Press, 2014), 179. 355 Crawford, Brownlie’s Principles of International Law (n 186), 40. 356 E de Vattel, Le droit des gens II (1758), Ch XVII at [263]. 357 Lauterpacht, The Development of International Law (n 171), 52. 358 Territorial Dispute between Libya and Chad (n 86), 21–2 at [41]. 351

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this pronouncement at face value—‘interpretation must be based above all upon the text of the treaty’359 —then the following must certainly be pointed out. As mentioned above in relation to good faith, the Tribunal in Rhine Chlorides commented on the dictum. The Tribunal (consisting of Guillaume, Koojimans, and Skubiszewski, the last of whom presided) said that: In the Territorial Dispute (Libyan Arab Jamahiriya/Chad) case, the Court stated that ‘interpretation must be based above all upon the text of the treaty’. In this regard, the Tribunal emphasises that the text of the treaty is a notion distinct from, and broader than, the notion of ‘terms’. Relying on the text does not mean relying solely, or mainly, on the ordinary meaning of the terms. Such a solution would effectively ignore the references to good faith, the context, and the object and purpose of the treaty. The ordinary meaning of the terms is even itself determined as a function of the context, object and purpose of the treaty. Lastly, as paragraph 2 of Article 31 of the Vienna Convention provides, the text of the treaty (including the preamble and annexes) is itself part of the context for the purposes of interpretation.360

The Tribunal made clear that if one were to adopt the approach summed up in the dictum from Territorial Dispute then that would not mean adopting an interpretation founded uniquely or even mainly on the ordinary meaning of the terms, seeing as this would run counter to the reference in the general rule to good faith, context, and to object and purpose, and finally the ‘ordinary meaning of the terms’ will in itself be a function of context as well as the treaty’s object and purpose. In the mode of 2 Cor 3:6—‘The letter killeth but the spirit giveth life’—these lines seem to caution against taking too seriously the International Court’s dictum in Territorial Dispute. Nonetheless, as was seen above, it has indeed been quoted and followed in other decisions up until Legality of the Use of Force,361 though not in later decisions on treaty interpretation. If, however, one looks at what the International Court went on actually to do in Territorial Dispute, one sees that the conclusions to which one might be led by putting too much store upon the dictum are wrong. This shows that the International Court did in fact conduct its interpretation along the same lines as the Tribunal in Rhine Chlorides said must be the correct approach: The text of the provision in question was important to the interpretation in Territorial Dispute only in so far as it, in the words of the International Court, ‘conveys the intention of the parties to reach a definitive settlement of the question’ which they had sought to solve.362

Territorial Dispute between Libya and Chad (n 86), 21–2 at [41] (my emphasis). Rhine Chlorides Arbitration (Netherlands/France) (n 71), 292–3 at [63]. Also: P Daillier, M Forteau, and A Pellet, Droit international public (n 47), 284; MJ Cazala, ‘Le résultat manifestement absurd ou déraissonable de l’interprétation dans l’affaire de l’apurement des comptes (Pays-Bas c. France)’ (2004) 50 AFDI 624, 629–36. 361 Legality of the Use of Force (Serbia and Montenegro v Belgium) (Preliminary Objections) (Judgment) [2004] ICJ Rep 279, 318 at [100]. 362 Territorial Dispute between Libya and Chad (n 86), 25 at [51]. Also: Dissenting Opinion of Judges Anzilotti and Huber in Case of the SS ‘Wimbledon’ (1923) PCIJ Series A No 1, 15, 36; M Sørensen, Les sources du droit international (n 36); Orakhelashvili, The Interpretation of Acts and Rules (n 9), 341–42 and 347. 359

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The Court then read the treaty ‘in the light of its object and purpose’, and found, after having extracted from the treaty’s preamble the aims of the treaty, that the ‘object and purpose of the Treaty thus recalled confirm the interpretation of the Treaty given above, inasmuch as that object and purpose led naturally to the interpretation of the Treaty’ to which the intention of the parties, as well as the principle of effectiveness, had pointed.363 In other words even the interpretation in Territorial Dispute turns out to have been made on the basis of a broad range of means of interpretation. The Court began by going to the text, but also relied upon the object and purpose, as extracted from the preamble, and the principle of effectiveness in order to establish the common intention of the parties. Apart from the much quoted dictum, there is not much about the interpretation which the Court made in Territorial Dispute that is, in strict terms, text-focused. A dictum which perhaps better describes the process of treaty interpretation in general international law is that which the panel (among others Simma, Tomka, and Higgins, the last of whom presided) gave in Iron Rhine: ‘The object and purpose of a treaty, taken together with the intentions of the parties, are the prevailing elements for interpretation’.364 Whilst it could be argued that this statement fails to make clear that the intention of the parties is not a means of interpretation but rather the result of the interpretive process, it is a better summation than the dictum from Territorial Dispute of the approach taken to treaty interpretation by international courts and tribunals.365 There are competing views as to exactly how to square a treaty’s text with its object and purpose; it is to this debate that the chapter now turns.

Territorial Dispute between Libya and Chad (n 86), 25–6 at [52]. Iron Rhine (Belgium v Netherlands) (n 4), 65. Also: Fife, ‘Les techiniques interprétatives ’ (n 235), 372. 365 See Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Judgment) [2012] ICJ Rep 422, 451 at [74] and 454 at [86]; Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v Greece) (Judgment) [2011] ICJ Rep 644, 675 at [97]; Pulp Mills on the River Uruguay (Argentina v Uruguay) (n 18), 14, 48 at [75], 66 at [143]; Certain Questions of Mutual Asistance in Criminal Matters (Djibouti v France) (Judgment) [2008] ICJ Rep 177, 218 at [109], 232 at [154]; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, 179 at [109]; LaGrand (Germany v United States of America) (n 163), 501–3 at [99]–[104]; Gabčíkovo–Nagymaros Project (Hungary/Slovakia) (n 16), 78–9 at [142]; Oil Platforms (Islamic Republic of Iran v United States of America) (n 163), 820 at [52]; South-West Africa Cases (Ethiopia and Liberia v South Africa) (Preliminary Objections) [1962] ICJ Rep 319, 335–6; Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization (Advisory Opinion) [1960] ICJ Rep 150, 170–1; Case of Certain Norwegian Loans (Judgment) [1957] ICJ Rep 9, 23 and 27; Reservations to the Convention on Genocide (n 37), 23. Also: Affaire relative à l’or de la Banque nationale d’Albanie (1953) 12 RIAA 12, 46; Italy–United States Air Transport Arbitration (1965) 45 ILR 393, 409–14; Pope and Talbot v Canada (2001) 122 ILR 293, 383–84 at [115]–[117]; Cissé v International Bank for Reconstruction and Development (2001) 133 ILR 117, 124 at [23]; The Volga (Russian Federation v Australia) (2002) 126 ILR 433, 456 at [77]; The Hoshinmaru (Japan v Russia Federation) (2007) 143 ILR 1, 22 at [80]; Abyei Arbitation (Government of Sudan/Sudan People’s Liberation Movement/ Army) (2009) 144 ILR 348, 561–5 at [583]–[596]; Indus Waters Kishenganga Arbitration (Pakistan v India) (Partial Award) (2013) 154 ILR 1, 156–9 at [410]–[418]. 363

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3.3.8 Treaty interpretation and object and purpose generally A few words should be said in introduction about the terminology ‘object and purpose’. The two words are often used interchangeably. They may, however, lead to some confusion if they are used as synonyms. The ‘object’ of an instrument refers to the juridical effect of the instrument; the ‘purpose’ has a teleologic element which refers to the aims of the contracting parties.366 Sometimes the distinction is clearer, and the confusion less evident, in French. The following extract from the judgment of the Permanent Court in Minority Schools in Albania is sometimes used to shed light on the difference between the two concepts: ‘Pour atteindre ce but deux choses surtout ont été considérées comme nécessaires et font l’objet des dispositions desdits traités’. The English version is perhaps less instructive in this regard but the point is made there too: ‘In order to attain this object, two things were regarded as particularly necessary, and have formed the subject of provisions in these treaties.’367 The preamble of a treaty is an important place to search for the common intention of the parties.368 The European Court of Human Rights put it thus in Golder: ‘the preamble is generally very useful for the determination of the “object” and “purpose” of the instrument to be construed.’369 Nonetheless, perhaps the most important place to search for the object and the purpose of a treaty is the text itself. All the means of interpretation available can in principle contribute to the establishment of the object and purpose of a treaty. As Villiger puts it: The structure of Article 31 as a General Rule leaves no doubt that all the elements of Article 31 as well as the supplementary means of interpretation in Article 32 contribute to this end.370

In this sense one ought not to conceive of, on the one hand, the text and, on the other, the object and purpose as necessarily being at odds with one another or necessarily being altogether different entities. The point has been made by Combacau that reliance on object and purpose does not necessarily mean reliance on a ‘constructive’ interpretation; rather it means to interpret a particular term in the light of that which may be drawn from the treaty as a whole.371 It would not therefore be 366 De Visscher, Problèmes d’ interprétation judiciaire en droit international public (n 219), 62; Kolb, Interprétation et création du droit international (n 9), 532–3. 367 Minority Schools in Albania (1935) PCIJ Ser A/B, No 64, 14, 17. 368 Sovereignty over Certain Frontier Land [1959] ICJ Rep 209, 221; Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (n 365), 449 at [68] and 460 at [115]. Also: HICEE BV v The Slovak Republic (Permanent Court of Arbitration) Case No 2009–11, 23 May 2011 at [116]. 369 Golder v United Kingdom (n 180), 216 at [34]. 370 ME Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Martinus Nijhoff, 2009), 428. 371 J Combacau, Le droit des traités (Presses universitaires de France, 1991), 33. Also: Jennings, ‘Treaties’ (n 71), 145; I Buffard and K Zemanek, ‘The “Object and Purpose” of a Treaty: An Enigma?’ (1998) 3 ARIEL 311, 312–19; P Reuter, ‘Solidarité et divisibilité des engagements conventionnels’ in Y Dinstein (ed), International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (Martinus Nijhoff, 1989), 627–8; Gaja, ‘Trattati internazionali’ (n 8), 356.

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correct to assume that the text itself does not have an important role to play in the ascertainment of the object and purpose of a treaty.372 The VCLT brings out the particular importance of a treaty’s object and purpose by its insistent mentioning of the object and purpose of a treaty; Articles 18, 20(2), 41, 58, 60(3)(b), as well as Article 31(1), all speak of the object and purpose of a treaty. For the purposes of treaty interpretation it is especially the relationship between a treaty’s object and purpose and the intention of the parties in concluding the treaty that is of interest. De Visscher said of the approach of the VCLT that, in common with the jurisprudence of the International Court, ‘la Convention de Vienne adopte comme critère d’interprétation “l’objet et le but du traité” ’.373 In de Visscher’s view the search for the intention of the parties is intimately tied to the object and purpose; the International Court, he said, ‘pour éclairer l’intention des parties, recherche l’objet ou le but du traité’.374 Similarly, Higgins has underlined this close relationship between the intention of the parties and the object and purpose of a treaty by saying that treaty interpretation must be conducted by application of the wider principle which guides the law of treaties—the search for the intention of the parties, ‘reflected by reference to the objects and purpose’.375 Indeed in her view the intention of the parties should be ‘deduced from the object and the purpose of the agreement’.376 Guillaume has said that while the terms of a treaty provision in their ordinary meaning form the basis for the inquiry of the International Court into the intention of the parties, the object and purpose of a treaty ‘are equally strong expressions of the parties’ intention and could sometimes express the parties’ intent more clearly with respect to a specific provision’.377 Reuter, one of the leading drafters of the VCLT, also put a premium on the nexus between the intentions of the parties and their treaty’s object and purpose. He observed that, on the one hand, the purpose of treaty interpretation is ‘to ascertain the intention of the parties by reference to the form, the final clauses and especially the object and purpose of the treaty’378 and that, on the other hand, in addition to having been manifested, the intentions ‘must concur to form the object and purpose of the agreement, both of which play so prominent a part in the whole law of treaties’.379 According to Reuter the important role played by the object and purpose within the Vienna rules should not be seen as an exception to the principle of the autonomy of the will of the state.380 Rather it is the objective reinforcement of that very principle. The object and the purpose of a treaty are the essential elements of the intention of the parties: it is to be assumed, therefore, that See below on ‘generic terms’. De Visscher, Théories et réalités en droit international public (n 247), 280. 374 De Visscher, Théories et réalités en droit international public (n 247), 415. 375 R Higgins, ‘Inter-Temporal Rule in International Law’ (n 42), 181. Also: Fife, ‘Les techniques interprétatives’ (n 235), 372. 376 R Higgins, ‘Time and the Law’ (1997) 46 ICLQ 501, 519. 377 Guillaume, ‘Methods and Practice of Treaty’ (n 13), 468–9. 378 Reuter, Introduction to the Law of Treaties (n 10), 24. 379 380 Reuter, Introduction to the Law of Treaties (n 10), 30. See Ch 3.1. 372 373

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the parties would not wish for that object and purpose, freely chosen by them as their common good, to be frustrated.381 In the literature it is nonetheless often argued that in the law of treaties the object and purpose of an instrument play a less important role than the wording. Aust has, for example, said about the object and purpose of a treaty that ‘fortunately, the role it plays in interpreting treaties is less than the search for the ordinary meaning of the words in their context’; ‘having regard to the object and purpose is more for the purpose of confirming an interpretation’.382 This, in Aust’s view, is clear from the jurisprudence of the International Court, as the judgments of the Court, even in its advisory opinions on the United Nations Charter,383 according to Aust, ‘do not suggest that in interpreting the Charter the Court has been minded to follow a doctrinaire, teleological approach’.384 The jurisprudence of the International Court has taken the approach according to which object and the purpose of a treaty are the essential elements of the intention of the parties. Thus in Reservations to the Convention on Genocide, where the International Court, after stressing that the objects of the Genocide Convention385 must be given due consideration, held that the ideals inspiring the treaty must be regarded to ‘provide, by virtue of the common will of the parties, the foundation and measure of all its provisions’.386 In Gabčíkovo–Nagymaros the International Court took a similar approach, stating that, in accordance with Article 26 of the VCLT, ‘every treaty in force is binding upon the parties to it and must be performed by them in good faith’; this latter element, the Court continued: implies that, in this case, it is the purpose of the Treaty, and the intentions of the parties in concluding it, which should prevail over its literal application. The principle of good faith obliges the Parties to apply it in a reasonable way in such a manner that its purpose can be realized.387

381 Reuter, La Convention de Vienne du droit des traités (n 3), 17 (‘la Convention retient comme un élément déterminant, ou au moins important, de solution des problèmes qu’elle considère, l’objet et le but du traité; ce n’est pas une dérogation au principe de l’autonomie de la volonté, mais bien au contraire sa consolidation objective: l’objet et le but du traité sont les éléments essentiels qui sont pris en considération par la volonté des parties, on doit donc toujours supposer que les parties se sont mutuellement refusé d’admettre toutes les libertés qui porteraient atteinte à ce but et à cet objet qu’elles ont librement choisi comme leur bien commun’). 382 Aust, Modern Treaty Law and Practice (n 23), 209. Also: Akande, ‘International Organizations’ (n 348), 258–9. 383 Charter of the United Nations, 26 June 1945, 892 UNTS 119. 384 Aust, Modern Treaty Law and Practice (n 23), 343. 385 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277. 386 Reservations to the Convention on Genocide (n 37), 23. Also: Ambatielos case (Jurisdiction) (Judgment) [1952] ICJ Rep 28, 45; Norwegian Loans (n 37), 23 and 27; Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization (Advisory Opinion) [1960] ICJ Rep 150, 170–1; Case concerning US Diplomatic and Consular Staff in Tehran (USA v Iran) [1980] ICJ Rep 3 at [54]; Military and Paramilitary Activities in and against Nicaragua [1986] ICJ Rep 14 at [273]; Kasikili/Sedudu Island (Botswana/Namibia) (n 42), 1072 at [43]; Certain Questions of Mutual Asistance in Criminal Matters (Djibouti v France) (Judgment) [2008] ICJ Rep 177, 218 at [109], 232 at [154]. 387 Gabčíkovo–Nagymaros Project (Hungary/Slovakia) (n 16), 79 at [142].

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In Oil Platforms (Preliminary Objection) the International Court underlined the importance of ‘the spirit and intent’ of a treaty as set out in general terms in Article 1 of the treaty: ‘the spirit and intent set out in this Article animate and give meaning to the entire Treaty and must, in case of doubt, incline the Court to the construction which seems more in consonance with its overall objective’.388 Article 1 of the treaty, the Court said, ‘cannot be interpreted in isolation from the object and purpose of the Treaty in which it is inserted’.389 The Court in Questions relating to the Obligation to Prosecute or Extradite, citing from the preamble of the Torture Convention,390 underlined the importance of the object and purpose, considering that ‘the obligation on a State to prosecute, provided for in Article 7, paragraph 1, of the Convention, is intended to allow the fulfilment of the Convention’s object and purpose, which is “to make more effective the struggle against torture” ’.391 Andenas and Weatherall have convincingly argued that the Court could have relied on the Convention’s purpose in making the prohibition against torture effective, and the torture prohibition’s customary international law character as jus cogens and erga omnes in interpreting the obligation to extradite or prosecute under the Torture Convention as sufficient to provide Belgium with standing before the Court, on the basis of a general legal interest in the performance of the obligation.392 It is nonetheless true that, in South West Africa, the International Court took care not to engage in ‘teleologic’ interpretation (without, however, taking a stance in principle to this type of interpretation), and stated that: It may be urged that the Court is entitled to engage in a process of ‘filling in the gaps’, in the application of a teleological principle of interpretation, according to which instruments must be given their maximum effect in order to ensure the achievement of their underlying purposes. The Court need not here enquire into the scope of a principle the exact bearing of which is highly controversial, for it is clear that it can have no application in circumstances in which the Court would have to go beyond what can reasonably be regarded as being a process of interpretation, and would have to engage in a process of rectification or revision.393

But in LaGrand the Court arrived at an interpretation394 in which the object and purpose entirely overrode what might have seemed at first glance to be the meaning (at least the English version) of Article 41 of the Court’s Statute.395 This, as former President Guillaume has observed, was clearly a teleologic interpretation.396 The 388 Oil Platforms (Islamic Republic of Iran v United States of America) (Preliminary Objection) (n 163), 820 at [52]. Further: Orakhelashvili, The Interpretation of Acts and Rules (n 9), 349–50. 389 Oil Platforms (Islamic Republic of Iran v United States of America) (Preliminary Objection) (n 163), 813 at [27]. 390 Convention Against Torture and Other Cruel, Inhuman or Degrading Treament or Punishment, 10 December 1984, 1465 UNTS 85. 391 Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (n 365), 460 at [115]. 392 M Andenas and T Weatherall, ‘International Court of Justice: Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment of 20 July 2012’ (2013) 62 ICLQ 753, 769. 393 South West Africa (Second Phase) (n 93), 48 at [91]. 394 LaGrand (Germany v United States of America) (n 163), 501–3 at [99]–[104]. 395 Statute of the International Court of Justice, 26 June 1945, 892 UNTS 119. 396 Guillaume, ‘Methods and Practice of Treaty Interpretation’ (n 13), 469.

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Court in LaGrand made clear that the object and purpose of the Statute was to enable the Court to fulfil the functions provided for in the Statute, and in particular, the basic function of judicial settlement of international disputes by binding decisions in accordance with Article 59 of the Statute. The Court went on to say that: It follows from the object and purpose of the Statute, as well as from the terms of Article 41 when read in their context, that the power to indicate provisional measures entails that such measures should be binding, inasmuch as the power in question is based on the necessity, when the circumstances call for it, to safeguard, and to avoid prejudice to, the rights of the parties as determined by the final judgment of the Court. The contention that provisional measures indicated under Article 41 might not be binding would be contrary to the object and purpose of that Article.397

The Court thus showed the prominent importance which must be given to a treaty’s object and purpose—to the detriment of that which might prima facie seem to follow from the treaty’s wording. The same is clear from the jurisprudence of the Permanent Court. In Rights of Minorities in Upper Silesia (Minority Schools) the Permanent Court relied on the object and purpose of the instrument to be interpreted, as it held that ‘the Treaty would fail in its purpose if it were not to be considered as an established fact that persons who belonged de facto to such a minority must enjoy the protection which had been stipulated’.398 The Tribunal in Or de la Banque nationale d’Albanie held that one may not rely on the text of a treaty instrument if that text ‘n’est pas compatible avec l’objet et le but de ces engagements’.399 Investment treaty arbitration tribunals, too, go far in relying upon the object and purpose in treaty interpretation; the jurisprudence on Article 52 of the ICSID Convention,400 on annulment of awards, is a good example in this regard.401 As the Tribunal held in Hussein Nuaman Soufraki v United Arab Emirates: Article 52 of the ICSID Convention must be read in accordance with the principles of treaty interpretation forming part of general international law, which principles insist on neither restrictive nor extensive interpretation, but rather on interpretation in accordance with the object and purpose of the treaty.402

LaGrand (Germany v United States of America) (n 163), 503 [102]. Rights of Minorities in Upper Silesia (Minority Schools) (1928) PCIJ Ser A, No 15, 33. 399 Affaire relative à l’or de la Banque nationale d’Albanie (1953) 12 RIAA 12, 46. Also: C Rousseau, Droit international public I (Éditions Sirey, 1971), 282. 400 Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 18 March 1965, 575 UNTS 159. 401 See M Waibel, ‘International Investment Law and Treaty Interpretation’ in R Hofmann and CJ Tams, International Investment Law and General International Law: From Clinical Isolation to systemic Integration? (Nomos, 2011), 38–44; Waibel, ‘Uniformity versus Specialisation’ (n 225). 402 Hussein Nuaman Soufraki v United Arab Emirates, ICSID Case No ARB/02/7, Decision of the ad hoc Committee on the Application for Annulment of Mr Soufraki, 5 June 2007 at [21]–[22]. Also: Klöckner Industrie-Anlagen GmbH and others v United Republic of Cameroon and Société Camerounaise des Engrais (Klöckner I), ICSID Case No ARB/81/2, Decision of the ad hoc Committee, 3 May 1985 at [3]‌; Maritime International Nominees Establishment v Republic of Guinea, ICSID Case No ARB/84/4, Decision on the Application by Guinea for Partial Annulment of the Arbitral Award dated 6 January 1988, 22 December 1989 at [4.05]; Amco Asia Corporation and others v Republic of Indonesia (Amco II), ICSID Case No ARB/81/1, Decision on the Applications 397 398

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On this background, it can be concluded that, within the law of treaties, the language of treaty provisions is not subject to any particular presumption but will be read so that effect is given to the object and purpose of the treaty in its context.403

3.3.9 Evolutionary interpretation and object and purpose The question for the present purposes is what this emphasis on the object and purpose of a treaty means for evolutionary interpretation. This is well brought out in the classic Muscat Dhows,404 where the interpretation of the treaty term ‘protégé’ in the Act of Brussels 1890405 was at issue. Those who were defined as the ‘protégé’ of France were exempt from searches aimed at discovering slave trade. In the event, an evolutionary interpretation of the term would give that right to a large number of vessels; a contemporaneous interpretation would limit that number considerably. The Tribunal found that an evolutionary interpretation was not warranted. In order to reach this conclusion the Tribunal focused on the ‘purpose of supressing slave trading’, which it saw as one of the ‘elevated intentions’ of the Act of the Brussels Conference.406 The evolutionary—and extensive—interpretation proposed by France, which would have run the risk of effectively accommodating slave trade, would hardly have been consonant with the object and purpose of the treaty. The terms were to be given the meaning which corresponds the best both with the elevated intentions of the Conference and of the resulting Final Act and with principles of international law as expressed in treaties in effect during that period, in national legislation to the extent that it has received international recognition and in the practice of the Law of Nations.407

There is an obvious connection here with Huber’s description of treaty interpretation as ‘concentric encirclement’, whereby the judge establishes the intention of the parties in conformity with the fundamental demands of the fullness of international law and justice.408 But what the Tribunal held in Muscat Dhows on the interplay between the ‘purpose’ and ‘intentions’ in connection with evolutionary interpretation also found an echo in Iron Rhine, where the Tribunal said that: ‘The object and purpose of a treaty, taken together with the intentions of the parties, are the prevailing elements for interpretation’.409 The Tribunal in Iron Rhine went

by Indonesia and Amco Respectively for Annulment and Partial Annulment, 17 December 1992 at [1.17]. 403 J Crawford, ‘Sovereignty as a Legal Value’ in J Crawford, M Koskenniemi, and S Ranganathan (eds), The Cambridge Companion to International Law (Cambridge University Press, 2011), 123. 404 Affaire des boutres de Mascate (France c Grande-Bretagne) (1905) 11 RIAA XI 83. Further: M Bressonnet, ‘L’arbitrage franco-anglais dans l’affaire des boutres de Mascate’ (1906) 13 RGDIP 145; J Allain, ‘The Nineteenth Century Law of the Sea and the British Abolition of the Slave Trade’ (2007) 78 BYIL 342; P Daillier, M Forteau, and A Pellet, Droit international public (n 47), 552–3. 405 Declaration of the General Act of the Brussels Conference, 2 July 1890, 173 CTS 188. 406 Affaire des boutres de Mascate (France c Grande-Bretagne) (n 404), 93–4. 407 Affaire des boutres de Mascate (France c Grande-Bretagne) (n 404), 94. 408 Huber (n 261), 200–1. Also: Gardiner, Treaty Interpretation (n 11) 141; Aguas del Tunari v Bolivia, ICSID Case No ARB/02/03, 21 October 2005 at [91]. 409 Iron Rhine (Belgium v Netherlands) (n 4), 65.

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on to say that in that case it was not a conceptual or generic term that was in issue; it was rather new technical developments relating to the operation and capacity of a railway: ‘an evolutive interpretation, which would ensure an application of the treaty that would be effective in terms of its object and purpose, will be preferred’.410 In other words, an evolutionary interpretation was chosen as that would ensure that the intention of the parties, as reflected by reference to the objects and purpose, was followed. This is the point Bernhardt made when he stressed how the object and purpose of a treaty plays a central role in treaty interpretation, and more specifically that if a treaty is to be effective in terms of its object and purpose then that may mean entry into a certain dynamism.411 If it is the purpose of the treaty to create longer lasting and solid relations between the parties then it is hardly compatible with this purpose to eliminate new developments in the process of treaty interpretation.412 Nationality Decrees issued in Tunis and Morocco should also be seen in this light.413 There the Permanent Court observed that the question whether a matter is solely within the jurisdiction of a state is essentially a relative question; it must depend upon ‘the development of international relations’.414 This interpretation of Article 15 of the Covenant of the League of Nations415 must be understood on the background of the object and purpose of the Covenant of the League of Nations, which according to its preamble was ‘to promote international co-operation and to achieve international peace and security’.416 The same approach was taken to the object and purpose of the Hungarian–Czechoslovak Treaty417 in Gabčíkovo– Nagymaros where the International Court extracted the object and purpose of the instrument from its Articles 15, 19, and 20 and held that for the treaty to be effective in terms of its object and purpose it must be interpreted as being ‘not static’, but rather ‘open to adapt to emerging norms of international law’.418 The parties had, in the view of the Court, committed themselves to a programme of progressive development by drawing up the object and purpose of the treaty in the language they had used in the treaty.419 The same was the case with the interpretation which the International Court made in Western Sahara,420 where in its interpretation of Resolution 3292 (XXIX)421 the Court made an evolutionary interpretation of the Iron Rhine (Belgium v Netherlands) (n 4), 73. R Bernhardt, ‘Evolutive Treaty Interpretation—Especially of the European Convention on Human Rights’ (1999) 42 GYIL 11, 16–17. 412 R Bernhardt, ‘Evolutive Treaty Interpretation’ (n 411), 16–17. 413 See Jennings and Watts, Oppenheim’s International Law (n 182), 1281–2. 414 Nationality Decrees Issued in Tunis and Morocco (n 133), 24. 415 Covenant of the League of Nations, 28 June 1919, 225 CTS 195. 416 See W Schücking and H Wehberg, Die Satzung des Völkerbundes I (3rd edn, Verlag von Franz Vahlen, 1931), 56; WD Krause-Ablaß, Intertemporales Völkerrecht (Forschungsstelle für Völkerrecht und ausländisches Recht der Universität Hamburg, 1969), 124–5. 417 Treaty Concerning the Construction and Operation of the Gabčíkovo–Nagymaros System of Locks, 16 September 1977, 1978 UNTS 236. 418 Gabčíkovo–Nagymaros Project (Hungary/Slovakia) (n 16), 67–8. 419 McLachlan, ‘Systemic Integration’ (n 9), 317; M Paparinskis, The International Minimum Standard and Fair and Equitable Treatment (Oxford University Press, 2013), 123. 420 Western Sahara (Advisory Opinion) [1975] ICJ Rep 12, 38–40. 421 Resolution 3293 (XXIX), 13 December 1974. 410 411

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term ‘legal ties’ on the basis of ‘the object and purpose of General Assembly resolution 3292 (XXIX)’.422 As was seen above, the object and purpose also set the limits of the evolutionary interpretation of an instrument. Thus, in Whaling,423 where the International Court found that the functions which the the International Convention for the Regulation of Whaling424 conferred on the International Whaling Commission (IWC) ‘have made the Convention an evolving instrument’,425 the Court observed that ‘amendments to the Schedule and recommendations by the IWC may put an emphasis on one or the other objective pursued by the Convention, but cannot alter its object and purpose’.426

3.3.10 Tensions between intention and evolution It has in the literature of the law of treaties been argued that giving effect to the common will of the parties, on the one hand, and making an evolutionary interpretation, on the other, are two propositions that can be reconciled only with difficulty. This view has, for example, been cast in the following terms: ‘the need to give effect to the intention of the parties is evidently a deterrent to the use of an evolutive interpretation’.427 On this understanding a Tribunal’s resort to evolutionary interpretation is seen as adopting an interpretation which is at variance with the intention of the parties. This proposition is, however, open to question. On the approach taken in this book, evolutionary interpretation is nothing if not tied to the intention of the parties; it must ultimately refer back to the consent of the parties themselves and to their common intention. As will be seen, this means the same for both what has been called contemporaneous and for evolutionary interpretation. It is instructive to note that, in Navigational Rights, it was Nicaragua (arguing for a contemporaneous interpretation) that argued on the basis of the intentions of the parties, not Costa Rica (arguing for an evolutionary interpretation)—though in the event the Court concluded in favour of Costa Rica on the basis of the intention

422 Western Sahara (n 420), 40. See Jennings and Watts, Oppenheim’s International Law (n 182), 1282. 423 Whaling in the Antarctic (Australia v Japan: New Zealand Intervening) (n 81). See Ch 3.3.1. 424 International Convention for the Regulation of Whaling, 2 December 1946, 161 UNTS 72. 425 Whaling in the Antarctic (Australia v Japan: New Zealand Intervening) (n 81) at [45]. Further: Separate Opinion of Judge Greenwood at [5]‌; Separate Opinion of Judge Charlesworth ad hoc at [3]; Separate Opinion of Judge Cançado Trindade at [25]–[40]. 426 Whaling in the Antarctic (Australia v Japan: New Zealand Intervening) (n 81) at [56]. 427 Palchetti, ‘Interpreting “Generic Terms” ’ (n 166). Also: Bernhardt, ‘Evolutive Treaty Interpretation’ (n 411), 21; R Bernhardt, ‘Thoughts on the Interpretation of Human Rights Treaties’ in F Matscher and H Petzold (eds), Protecting Human Rights: The European Dimension. Studies in Honour of Gérard J Wiarda (Carl Heymann, 1988), 65; C Brölmann, ‘Limits of the treaty Paradigm’ in M Craven and M Fitzmaurice (eds), Interrogating the Treaty: Essays in the Contemporary Law of Treaties (Wolf Legal Publishers, 2005), 28; C Brölmann, ‘Specialized Rules of Treaty Interpretation: International Organizations’ in D Hollis (ed), Oxford Guide to Treaties (Oxford University Press, 2012), 512; B Cali, ‘Specialized Rules of Treaty Interpretation: Human Rights’ in D Hollis (ed), The Oxford Guide to Treaties (Oxford University Press, 2012), 547; G Letsas, ‘Strasbourg’s Interpretive Ethic: Lessons for the International Lawyer’ (2010) 21 EJIL 509, 527.

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of the parties. This goes some way in showing the difficulty that may be encountered in marrying the concepts of intent and evolution.428 Waldock addressed this point in a series of works on evolutionary interpretation, observing that the VCLT did not deal specifically with the effect of an evolution in treaty terms: ‘The International Law Commission’s commentary, however, which I myself wrote’, he continued, ‘explained that so much depends on . . . the intention of the parties in the particular treaty, that it would be difficult to lay down any general rules’.429 Posing the question of how courts ought to approach the problem of evolutionary interpretation, he added that: The problem of interpretation caused by an evolution in the meaning generally attached to a concept embodied in a treaty provision is, of course, neither new nor confined to human rights. . . . But the problem is a general one which may present itself whenever the original meaning of a concept forming the basis of a treaty provision is found to have evolved. If the International Law Commission’s view of the matter is correct, as hardly seems open to doubt, the answer to the problem in any given case must be looked for in the intention of the parties to the particular treaty.430

Confronted with the question of how, according to the general rule of interpretation, a Tribunal ought to approach treaty terms which may or may not be deemed to be evolving, Yasseen made exactly the same point: ‘That depends, to my mind, on what the parties really intended’.431 This answer is question-begging, for as Waldock was quick to point out: ‘that intention, however, may not always be easily discernible’.432 But the broader point remains. And that is why, in cases bearing upon evolutionary interpretation, the International Court and arbitral tribunals alike have proceeded as the Tribunal did in La Bretagne, where, in order to establish whether the treaty term ‘fishing regulation’ ought or ought not to be interpreted in an evolutionary fashion, the Tribunal stressed ‘the primary necessity of interpreting an instrument in accordance with the intentions of the parties’.433 ‘This’, the Tribunal continued, ‘will be done by following the general rule of interpretation’.434 International jurisprudence has been consistent in taking this approach. Thus the Eritrea–Ethiopia Boundary Commission in Border between Eritrea and Ethiopia followed ‘the general rule that a treaty is to 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’ because ‘each of these elements guide 428 CR 2009/4, 49–50 (Pellet) (‘le principe de base qui constitue la toile de fond de cette opération n’a rien de mystérieux et me paraît vraiment indiscutable; il est celui-là même qui inspire le droit des traités dans son ensemble: tout se rapporte à l’ intention des Parties’). See Dawidowicz, ‘Passage of Time’ (n 229), 213. 429 Waldock, ‘Effectiveness’ (n 50), 3–4. 430 Waldock, ‘Evolution of Human Rights Concepts’ (n 116), 536. 431 Yasseen, ‘L’interprétation des traités’ (n 64) (‘Cela dépend à notre avis de ce que les parties ont vraiment voulu’). 432 Waldock, ‘Evolution of Human Rights Concepts’ (n 116), 536. 433 La Bretagne (Canada/France) (n 20), 624. 434 La Bretagne (Canada/France) (n 20), 659–60. Also: J Crawford, State Responsibility: The General Part (Cambridge University Press, 2013), 247.

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the interpreter in establishing what the Parties actually intended, or their common will’.435 The Tribunal in the Rhine Chlorides case stated that the reason international jurisprudence has adhered to Article 31 was, simply, that ‘all the elements of the general rule of interpretation provide the basis for establishing the common will and intention of the parties’.436 With the work of the ILC on treaty interpretation, led by Special Rapporteur Nolte, on ‘Treaties over Time’,437 it is tempting to say that the issue of the intention of the parties has within the work of the ILC come full circle. The ILC in its work agreed, in Draft Conclusion 3, on the following wording: Interpretation of Treaty Terms as Capable of Evolving over Time Subsequent agreements and subsequent practice under article 31 and 32 may assist in determining whether or not the presumed intention of the parties upon the conclusion of the treaty was to give a term used a meaning which is capable of evolving over time.438

The ILC Commentary to the Draft Conclusion leaves little to be desired in terms of clarity when it comes to just what its approach to evolutionary interpretation and ‘presumed intention’ is. Any evolutionary interpretation of the meaning of a treaty term, the ILC states, must be justifiable as a result of the ordinary process of treaty interpretation.439 And more specifically: ‘The phrase “presumed intention” refers to the intention of the parties as determined through the application of the various means of interpretation which are recognized in articles 31 and 32’.440 ‘Presumed intention’, the ILC concluded: is thus not a separately identifiable original will, and the travaux préparatoires are not the primary basis for determining the presumed intention of the parties, but they are only, as article 32 indicates, a supplementary means of interpretation. And although interpretation must seek to identify the intention of the parties, this must be done by the interpreter on the basis of the means of interpretation which are available at the time of the act of interpretation.441

‘Intention’ is thus a construct to be derived from the articulation of the ‘means of interpretation admissible’442 in the process of interpretation—and not a separately identifiable factor. In Crawford’s view, instances of evolutionary interpretation of treaties as instances of international courts and tribunals electing ‘to depart from the intentions of the parties at the time of conclusion of a treaty’.443 In the same discussion, 435 Decision regarding the Delimitation of the border between Eritrea and Ethiopia (n 34), 34 at [3.4] (inverted commas deleted). 436 Rhine Chlorides Arbitration (Netherlands/France) (n 71), 293 at [62]. 437 See Nolte, ‘Introductory Report’ (n 36). 438 Draft Report of the International Law Commission on the Work of Its Sixty-Fifth Session (n 31), 14. 439 Draft Report of the International Law Commission on the Work of Its Sixty-Fifth Session (n 31), 17. 440 Draft Report of the International Law Commission on the Work of Its Sixty-Fifth Session (n 31), 17–18. 441 Draft Report of the International Law Commission on the Work of Its Sixty-Fifth Session (n 31), 18. 442 ILC Ybk 1966/II, 218–19. 443 Crawford, State Responsibility: The General Part (n 434), 246.

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however, he also stated that the issue of evolutionary interpretation ‘is essentially one of the correct application of VCLT Article 31’.444 Crawford’s double helix (according to which, on the one hand, evolutionary interpretation involves a court making a departure from the intention of the parties and, on the other, evolutionary interpretation is the result of the correct application of Article 31) seems to contain within it an inherent instability. The reason for this is that this model is missing one element, that is, the fact that, properly understood, a correct application of Article 31, in a case bearing upon evolutionary interpretation as much as any other type of interpretation, leads to the intention of the parties. The question is, to a large extent, one of emphasis. That approach is, however, squarely the approach preferred by the International Court. And the reason why the Court has chosen that approach, this chapter has argued, is that—as shown by the work of the ILC under both Special Rapporteur Waldock and Special Rapporteur Nolte—identifying the intention of the parties is nothing if not the approach that follows from Article 31 of the VCLT.

3.3.11 Evolutionary or contemporaneous interpretation? According to Fitzmaurice, the principle of contemporaneity could be summed up as follows: 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.445 This principle found its main support in the judgment by the International Court in Rights of US Nationals in Morocco.446 In this case the treaty term in issue was ‘disputes’. In the contemporaneous (and broader) interpretation of the term ‘disputes’ encompassed both civil and criminal disputes; this meant that both of these two types of dispute were, with respect to US nationals, exempted from the Moroccan legal system and instead under consular jurisdiction. In the evolutionary (and less broad) interpretation of the term ‘disputes’ would, following the present-day understanding of the term, encompass only civil disputes, so that Moroccan courts would have jurisdiction over criminal ‘disputes’ concerning US nationals. Rights of US Nationals in Morocco has been criticized for being ‘a Solomon’s judgment’, the implication being that the heavy US political and economic interests involved had made the International Court’s job in the case a particularly difficult one.447 In the same vein, Nolte has observed that, due to the context in which it was rendered, Rights of US Nationals in Morocco should not be accorded the same authority as more recent pronouncements.448

Crawford, State Responsibility: The General Part (n 434), 247. Fitzmaurice, ‘Treaty Interpretation and other Treaty Points’ (n 190), 212. Case concerning Rights of Nationals of the United States of America in Morocco, (n 61). Also: South West Africa (Second Phase) (n 93), 23 at [16]. 447 B Cheng, ‘Rights of United States Nationals in the French Zone of Morocco’ (1953) 2 ICLQ 354, 355–6, and 367. 448 Nolte, ‘Introductory Report’ (n 36), 186. 444 445

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On this background, Nolte has concluded that ‘even if it were still appropriate to proceed from a presumption that a treaty should be given a contemporaneous interpretation, this is not a strong presumption’. It must be correct to say that there is no presumption in the law of treaties that treaty terms ought to be interpreted contemporaneously. But this is because the controlling element must be the intention of the parties, not because there is a presumption one way or the other. There can be no presumption one way or the other because here as elsewhere in the law of treaties the rule applies that any presumption or consideration which tend to transform the ascertainable intention of the parties into a factor of secondary importance are inimical to the true purpose of interpretation.449 It cannot be right therefore to say, as McNair did, that ‘there is authority for the rule that when there is a doubt as to the sense in which the parties to a treaty used words, those words should receive the meaning which they bore at the time of the conclusion of the treaty; unless that intention is negatived by the use of terms indicating the contrary’.450 There is no presumption one way or the other. Here as in other connections the intention of the parties must be controlling. Two important international arbitrations in particular are given as examples of international tribunals opting not for an evolutionary interpretation but instead for a contemporaneous one.451 These two arbitrations are Atlantic Coast Fisheries452 and Abu Dhabi.453 In the first case a Tribunal set up by the Permanent Court of Arbitration held the treaty terms used in a provision in the Treaty of London of 1818,454 stipulating that US nationals were excluded from fishing in Canadian ‘bays’, must be interpreted in a general sense as applying to every bay on the coast in question that might reasonably be supposed to have been considered as a bay by the negotiators of the Treaty under the general conditions then prevailing.455

The Tribunal then declined to interpret the term ‘bays’ by reference to legal concepts of a six-mile, ten-mile, or twelve-mile closing limit, such as those developed had in the evolution of international law subsequent to 1818. In Abu Dhabi,456 the Tribunal was asked to interpret not a treaty but a contract for an oil concession entered into by the sheikh of Abu Dhabi with a foreign company. Lauterpacht, ‘Restrictive Interpretation’ (n 73), 73. McNair, The Law of Treaties (n 25). See eg McNair, The Law of Treaties (n 25), 467–8; R Higgins, ‘Inter-Temporal Rule’ (n 42), 179–80; ILC Ybk 1964/II, 9–10. 452 The North Atlantic Coast Fisheries Case (United Kingdom v United States) (1910) 11 RIAA 167. 453 Arbitration between Petroleum Development (Trucial Coast) Ltd and the Sheikh of Abu Dhabi (n 283). The question has been raised whether the instrument in issue was a treaty or not: Lalive, ‘Contracts between a State or State Agency and a Foreign Company’ (1964) 13 ICLQ 991; CF Amerasinghe, Principles of the Institutional Law of International Organizations (2nd edn, Cambridge University Press, 2005), 276. See, generally, VCLT Art 2(1)(a); Crawford, Brownlie’s Principles of Public International Law (n 186), 369. 454 Treaty of London 20 October 1818, TS 112; 12 Bevans 57. 455 The North Atlantic Coast Fisheries Case (United Kingdom v United States) (n 452), 195. 456 Arbitration between Petroleum Development (Trucial Coast) Ltd and the Sheikh of Abu Dhabi (n 283). 449 450 451

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The instrument, expressed as covering all the lands, islands, and sea-waters of the ruler, had been drawn up in 1938 and the Tribunal, of which Lord Asquith was the sole member, was not prepared to ‘read back into the contract the implications of a doctrine not mooted till seven years later, and, if the view which I am about to express is sound, not even today admitted to the canon of international law’.457

3.3.12 Generic and specific terms The Tribunals in Atlantic Coast Fisheries458 and Abu Dhabi459 automatically assumed that the terms used were intended to fix the scope of the parties’ rights and obligations once and for all, and it was therefore in reliance on the intention of the parties that the Tribunals decided against interpreting the treaties evolutionarily. The provisions in issue were concerned with the distribution or grant of territorial rights in maritime areas. It was therefore only natural for the Tribunals to assume—and assume was what they did—that the parties in both cases had intended these provisions to define their respective rights at that time and for posterity, even if they might have used such terms as ‘bays’ or ‘sea-waters’ which in a different context might be understood as open-ended and liable to evolve with changing conditions. The same was the case in La Bretagne,460 where the Tribunal accepted in principle that the French–Canadian treaty at issue461 could contain terms the interpretation of which must evolve, not least because the treaty was an agreement concluded for an unlimited duration. In the view of the Tribunal the treaty ‘used the term “fishery regulations” as a generic formula covering all the rules applicable to fishing activities, while the reference to the dimensions of the vessels appears to suggest that a particular purpose was thereby intended, namely the limitation of these vessels’ fishing capacity’.462 In other words, the intention restricted the extent to which the different generic terms were seen by the Tribunal to be able to carry the new meaning. It seems that the approach of the Permanent Court was less restricted. In a statement of principle regarding generic terms, or ‘provisions which are general in scope’, the Permanent Court in Convention concerning Employment of Women during the Night, stated the following: The mere fact that, at the time when the Convention . . . was concluded, certain facts or situations, which the terms of the Convention in their ordinary meaning are wide enough to cover, were not thought of, does not justify interpreting those of its provisions which are general in scope otherwise that in accordance with their terms.463 457 Arbitration between Petroleum Development (Trucial Coast) Ltd and the Sheikh of Abu Dhabi (n 283), 253. 458 The North Atlantic Coast Fisheries Case (United Kingdom v United States) (n 452). 459 Arbitration between Petroleum Development (Trucial Coast) Ltd and the Sheikh of Abu Dhabi (n 283). 460 La Bretagne (Canada/France) (n 20). 461 Agreement between Canada and France on their Mutual Fishing Relations, 27 March 1972, CTS 1979 No 37. 462 La Bretagne (Canada/France) (n 20), 619. 463 Convention concerning Employment of Women during the Night PCIJ (1932) Series A/B No 50, 377.

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The same conclusion as that reached in principle by the Permanent Court has been reached with respect to the generic terms in which the European Convention on Human Rights464 is cast. Many of the provisions of the European Convention were drawn up in broad terms, which lend themselves to an evolving interpretation that can take account of social change.465 The same has been the case in the law of the World Trade Organisation (WTO),466 where the WTO Appellate Body has held that ‘natural resources’ in Article XX(g) and ‘sound recording’ and ‘distribution’ in China’s GATS467 Schedule are generic terms which must be interpreted evolutionarily.468 Waldock in this respect pointed out that the answer to the question of whether a contemporaneous or an evolutionary interpretation ought to be adopted must in any given case be looked for in the intention of the parties to the particular treaty: The interpretation of a treaty must always have its source in, and be consistent with, the original intention of the parties at the time of its conclusion. Consequently, it is only when it may be understood from the terms of the treaty that the parties contemplated a possible evolution of the content of the treaty in response to subsequent developments that those developments become part of the legal ‘framework’ for its interpretation.469

It is when the treaty terms at issue may be said to have been ‘intended to evolve in response to changes in legal and social concepts’470 that an evolutionary interpretation is inappropriate. If this is not the case then, as Atlantic Coast Fisheries471 and Abu Dhabi472 show, a contemporaneous interpretation will, in principle, be the appropriate solution. This is what the International Court made clear, in Navigational Rights, when it said that: It is true that the terms used in a treaty must be interpreted in light of what is determined to have been the parties’ common intention, which is, by definition, contemporaneous with the treaty’s conclusion. That may lead a court seised of a dispute, or the parties themselves, when they seek to determine the meaning of a treaty for purposes of good-faith compliance with it, to ascertain the meaning a term had when the treaty was drafted, since doing so can shed light on the parties’ common intention.473 464 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 222. 465 RCA White and C Ovey, Jacobs, White, and Ovey: The European Convention on Human Rights (5th edn, Oxford University Press, 2010), xvii. 466 See Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, 1867 UNTS 187; (1994) 33 ILM 1153. 467 General Agreement on Trade in Services, 15 April 1994, 1869 UNTS 183, (1994) 33 ILM 1167. 468 United States—Import Prohibition of Certain Shrimp and Shrimp Products, WB/DS58/AB/R, 12 October 1998 at [130]; China—Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/AB/R, 21 December 2009 at [396]. Cf European Communities and its Member States—Tariff Treatment of Certain Information Technology Products (n 173), at [7.600]. 469 Waldock, ‘The Evolution of Human Rights Concepts’ (n 116), 541. 470 Waldock, ‘The Evolution of Human Rights Concepts’ (n 116), 547. 471 The North Atlantic Coast Fisheries Case (United Kingdom v United States) (n 452). 472 Arbitration between Petroleum Development (Trucial Coast) Ltd and the Sheikh of Abu Dhabi (n 283). 473 Navigational and Related Rights (Costa Rica v Nicaragua) (n 17), 213 at [63].

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It seems that tribunals operate on the presumption that the intention of the parties was for a contemporaneous interpretation to be adopted if the parties used in the instrument a technical or a factual term, such as topographical denominations. This is clear from the approach taken in Decision regarding delimitation of the border between Eritrea and Ethiopia474 where it had been argued that the Tribunal must apply the principle of contemporaneity in its interpretation of the treaty terms in issue: By this the Commission understands that a treaty should be interpreted by reference to the circumstances prevailing when the treaty was concluded. This involves giving expressions (including names) used in the treaty the meaning that they would have possessed at that time. The Commission agrees with this approach and has borne it in mind in construing the Treaties.475

The same type of technical treaty term was in issue in Land and Maritime Boundary,476 where the International Court seemed to distinguish the interpretation of the treaty term ‘mouth’ of a river from the interpretation it had conducted, of ‘main channel’ of a river, in Kasikili/Sedudu.477 As the term to be interpreted was a technical one, ‘the Court must seek to ascertain the intention of the parties at the time’,478 by which it clearly meant that it must give to the terms the meaning they were seen to have at the time. If we are to judge from the cases available in the law reports of international tribunals, usually with this type of case the Tribunal is confronted, in one decision, either with a technical term, or a set of technical terms, or a more generic term, or a set of more generic terms. That is not, however, necessarily the case.

3.3.13 Generic and specific intentions of the parties In Western Sahara both types of term were in issue in the same decision, as the case involved the interpretation both of technical and generic terms.479 The International Court drew a distinction in its interpretation of a legal term of art on the one hand and a more generic term on the other.480 The International Court had, in Resolution 3292 (XXIX), been asked two questions by the General Assembly of the United Decision regarding the Delimitation of the border between Eritrea and Ethiopia (n 34). Decision regarding the Delimitation of the border between Eritrea and Ethiopia (n 34), 34 at [3.4]. Also: Boundary Dispute between Argentina and Chile Concerning the Delimitation of the Frontier Line between Boundary Post 62 and Mount Fitzroy (n 94), 76 at [157]. 476 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening) (n 14). 477 Kasikili/Sedudu Island (Botswana/Namibia) (n 42), 1060–72 at [20]–[41]. 478 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening) (n 14), 356 at [59]. 479 Western Sahara (n 420). The question of intertemporality in this case comes to the fore in a particular form as the legal instrument to be interpreted was not in itself an old one; the question was whether the terms of the instrument, though the instrument was a new one, made reference to the law in force at an earlier time only or the law in force at the time of the adoption of the instrument as well. 480 See Jennings and Watts, Oppenheim’s International Law (n 182), 1281–2. 474

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Nations: ‘Was Western Sahara (Río de Oro and Sakiet El Hamara) at the time of colonization by Spain a territory belonging to no one (terra nullius)?’ and, ‘What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity?’481 As will be seen, the Court was not asked to make an interpretation of a treaty instrument but of legal terms contained in a Resolution of the General Assembly. The legal term of art (‘terra nullius’) was given a contemporaneous interpretation; it must be ‘interpreted by reference to the law in force at that period’.482 The Court saw nothing in the use by the General Assembly of this legal term of art that pointed in the direction of an evolutionary interpretation. This was, according to the Court, different when it came to the more generic term (‘legal ties’), a term with no very precise meaning, which was interpreted by reference not only to the circumstances of the time to which its application related but also in the light of the intentions underlying the request for the Court’s opinion: Question II asks the Court to state ‘what were the legal ties between this territory’—that is, Western Sahara—‘and the Kingdom of Morocco and the Mauritanian entity’. The scope of this question depends upon the meaning to be attached to the expression ‘legal ties’ in the context of the time of the colonization of the territory by Spain. That expression, however, unlike ‘terra nullius’ in Question I, was not a term having in itself a very precise meaning. Accordingly, in the view of the Court, the meaning of the expression ‘legal ties’ in Question II has to be found rather in the object and purpose of General Assembly resolution 3292 (XXIX).483

The Court went on to say that about the interpretation of ‘legal ties’ that ‘in framing its answer, the Court cannot be unmindful of the purpose for which its opinion is sought’.484 As was seen above, the intention of the parties will be reflected by an instrument’s object and purpose, and can thus be inferred from the object and purpose.485 It was clear from the intention of the General Assembly that the International Court had been seized of the questions for the purpose of the decolonization of Western Sahara in conformity with Resolution 1514 (XV)486 on the right to self-determination. This approach could be thought to be reminiscent of the one suggested by Jiménez de Aréchaga (incidentally a Judge on the Court in this case) during the ILC debates on the VCLT with respect to whether or not a term should be interpreted contemporaneously or evolutionarily: ‘The intention of the parties should be controlling’.487 The International Court in Western Sahara, in other words, exemplified how the objectivized intention of the parties—or in the context of a resolution from the General Assembly: the intention of the Assembly—is the deciding factor as to whether one adopts a contemporaneous or an evolutionary interpretation.

482 Resolution 3293 (XXIX), 13 December 1974. Western Sahara (n 420), 38–9. 484 Western Sahara (n 420), 40. Western Sahara (n 420), 67–8. 485 Higgins, ‘Inter-Temporal Rule’ (n 42), 181. 486 487 Resolution 1514 (XV), 14 December 1960. ILC Ybk 1964/I, 34. 481

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It is possible to conclude, then, that when the parties have inserted into an instrument a technical or a factual term, such as topographical denominations, or in the narrower formulation of Special Rapporteur Nolte: ‘rather specific terms in boundary treaties’,488 the presumption arises that this term ought to be given a contemporaneous interpretation. In Nolte’s view, this is partly because in such cases ‘changes in the meaning of a (general or specific) terminology normally do not affect the substance of the specific arrangement, which is designed to be as stable and divulged from contextual elements as possible’.489 The view is perhaps preferable, however, that this is rather a function of the intention of the parties: international tribunals will in such cases proceed on the assumption that the intention of the parties was for the treaty term in issue to be interpreted in a contemporaneous manner. But when the treaty term in issue is more generic, then international tribunals will proceed on the assumption that the intention was for the treaty term to be interpreted in an evolutionary manner. Thus, for example, McNair stated that ‘expressions such as “suitable, appropriate, convenient”, occurring in a treaty are not stereotyped as at the date of the treaty but must be understood in the light of the progress of events and changes in habits of life’.490 Two examples could be given here: first, the evolutionary interpretation given by the International Court to the terms of the Mandate System in Namibia,491 and more generally the intentions behind the constitutive documents of the League of Nations492 and the United Nations,493 and, secondly, the approach taken in many cases by the European Court of Human Rights to the interpretation of the European Convention on Human Rights.494 The evolutionary interpretations made in both of these types of case are best understood as being fully consonant with the common intention of the parties. As was seen above, the International Court in Namibia495 referred to ‘the primary necessity of interpreting an instrument in accordance with the intentions of the parties’. It went on in the same paragraph to hold that, because of this primary necessity, the Court is bound to take into account the fact that the concepts embodied in Article 22 of the Covenant—‘the strenuous conditions of the modern world’ and ‘the well-being and development’ of the peoples concerned—were not static, but were by definition evolutionary, as also, therefore, was the concept of the ‘sacred trust’.496

Nolte, ‘Introductory Report’ (n 36), 186. Nolte, ‘Introductory Report’ (n 36), 186. 490 McNair, The Law of Treaties (n 25), 467. 491 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) (n 14), 16. 492 Covenant of the League of Nations, 28 June 1919, 225 CTS 195. 493 Charter of the United Nations, 26 June 1945, 892 UNTS 119. 494 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 222. See, eg, Tyrer v United-Kingdom (n 134), 353; Airey v Ireland App No 6289/73, judgment 9 October 1979. 495 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) (n 14). 496 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) (n 14), 16, 35 at [53]. Cf South West Africa (Second Phase) (n 93), 23 at [16]. 488 489

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It is wrong to see the reference to the primary necessity of interpreting the treaty in accordance with the intentions of the parties as the Court merely paying lip service to an old principle of interpretation. The ruling of the International Court in Namibia has, however, been criticized for applying retroactively a modern understanding of the Mandates System. It has been argued that the Court relied on an apparent act of benevolent hindsight, the point being that the Court in no way relied on the intentions of the parties but instead that which, in 1971, in the view of Court ought to have been the parties’ intentions.497 This argument is open to criticism. It is based on the proposition that it was inconceivable for the statesmen, when at the Paris Conference in 1919 they drew up the provisions on the Mandate System,498 to have had in mind the possibility of recognizing that states may have a general interest in the maintenance of an international regime adopted for the benefit of international society. Moreover, the problem is that this proposition does not sufficiently take into account the idealistic aspiration to which the end of the Great War had in fact given rise, and of which the following 1928 quotation from McNair is but one example: ‘There was perhaps no part of the Covenant that called forth more derision from the cynical and the worldly-wise than the Mandates System’; ‘the Mandates System represents the irruption of the idealist into one of the periodical world settlements which have in the past lain too much in the hands of so-called “practical men” ’.499 As Judge Jessup later observed in South West Africa: ‘No doubt some statesmen were cynical but great charters of human liberties were signed and ratified and became binding on States.’500 It is, against this background, not so clear that the objectivized intention of the parties on which the International Court founded its evolutionary interpretation, in 1971, was the result of benevolent hindsight. Those intentions should be deemed to have contained, in 1919, some very benevolent aspirations, aspirations to which the International Court had to give full and fair effect in its interpretation. To adopt this interpretation was indeed ‘not to set aside but to give effect to the original intention of the parties’.501 The same approach must be taken to the intention of the parties to the UN Charter.502 Akande has observed that the UN Charter is among the type of treaty which ‘must be regarded as living instruments and be interpreted in an evolutionary manner, permitting the organization to fulfil its purposes in changing circumstances’.503 He gives instances of what he regards as such evolutionary 497 Dawidowicz, ‘Passage of Time’ (n 229), 214–15; H Thirlway, ‘Law and Procedure 1960–1989 Part III’ (n 64), 136–7. 498 Article 22, Covenant of the League of Nations, 28 June 1919, 225 CTS 195. 499 A McNair, ‘Preface’ in J Stoyanovsky, The Mandate for Palestine: A Contribution to the Theory and Practice of International Mandates (Hyperion Press, 1928). 500 Dissenting Opinion of Judge Jessup in South West Africa (Second Phase) (n 93), 373. 501 Waldock, ‘The Evolution of Human Rights Concepts’ (n 116), 541. 502 Charter of the United Nations, 26 June 1945, 892 UNTS 119. 503 Akande, ‘International Organizations’ (n 348), 259. Also: Arato, ‘Treaty Interpretation and Constitutional Change’ (n 119), 316–27; S Kadelbach, ‘The Interpretation of the Charter’ in B Simma et al (eds), The Charter of the United Nations: A Commentary (3rd edn, Oxford University Press, 2012), 86.

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interpretations of the UN Charter. Perhaps the most salient example is Reparation for Injuries, in which the International Court referred to the practice of the United Nations and the fact that it had entered into treaties as confirming the legal personality of the organization.504 It is plain that if one sees this interpretation in light of the intentions of the parties, it becomes clear that the interpretation confirms these intentions and in no way runs counter to them. In fact the International Court in Reparation for Injuries explicitly referred to how its interpretation arose ‘by necessary intendment out of the Charter’.505 The same conclusion was drawn in Effect of Awards of Compensation by made by the UN Administrative Tribunal, where the International Court held that the power to establish a Tribunal to do justice as between the United Nations and the staff members ‘arises by necessary intendment out of the Charter’.506 This should not come as a surprise. As the Tribunal in RosInvest (Jurisdiction) (Sir Franklin Berman, Lord Steyn, and Böckstiegel, the last of whom presided) put it, as regards constituent instruments of international organizations: given the changing nature of the problems and circumstances international organizations have to confront, a degree of evolutionary interpretation is the only realistic approach to realizing the underlying purposes of the organization as laid down in its constituent instrument.507

The nature of circumstances of such instruments thus ‘provide evidence that the Parties themselves intended or understood that an evolutionary interpretation was appropriate to the interpretation and application of what they had agreed upon’.508 The inferences made by the International Court in Reparation for Injuries509 and Effect of Awards of Compensation made by the UN Administrative Tribunal 510 were clearly based on similar types of reasoning; imputations were made on the basis of an objectivized establishment of ‘intendment’ or ‘intention’. This is not surprising. After all, ‘it was’, as Franck has put it, ‘the intention of the founders at San Francisco to create a living institution, equipped with dynamic political, administrative, and juridical organs, competent to interpret their own powers under a flexible constituent instrument in response to new challenges’.511 504 Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174, 179. 505 Reparation for Injuries Suffered in the Service of the United Nations (n 504), 184. 506 Effects of Awards of Compensation made by the UN Administrative Tribunal (Advisory Opinion) [1954] ICJ Rep 47, 57. According to the Oxford English Dictionary ‘intendment’ means ‘the sense in which the law understands or interprets something, such as the true intention of a piece of legislation’. See, however, the discussion in E Lauterpacht, ‘The Development of the Law of International Organizations by the Decisions of International Tribunals’ (1976) 152 Hauge Recueil 381, 424–25. 507 RosInvestCo UK Ltd v Russian Federation SCC Case No Arb V079/2005, Award on Jurisdiction at [39]–[40]. 508 RosInvestCo UK Ltd v Russian Federation, (n 507) at [40]. 509 Reparation for Injuries Suffered in the Service of the United Nations (n 504). 510 Effects of Awards of Compensation made by the UN Administrative Tribunal (n 506). 511 T Franck, Recourse to Force: State Action against Threats and Armed Attacks (Cambridge University Press, 2002), 30–1. Also: E Hambro, LM Goodrich, and AP Simons, Charter of the United Nations: Commentary and Documents (3rd edn, Columbia University Press, 1969), 12–16.

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Crawford has, in an analysis of Reparations for Injuries—where the International Court held that under international law an organization ‘must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties’512—made the same point by stating that: ‘the underlying idea is that an international organization is expected to evolve and adapt to changes on the international plane’.513 The point could be made that this is a Western view of what in fact the intentions—or in the register of the International Court in this line of cases: intendment—of the founders at San Francisco were.514 It is indubitably true, as Hambro said, that one thread of continuity in the interpretation and application of the Charter,515 certainly during the Cold War, was that: members, when they rely heavily on the United Nations for the advancement of their national interests and the support of their national policies, tend to take a liberal view with regard to the powers of organs and the capacity of the United Nations to act in furtherance of its purposes. Thus, on the one hand, non-Communist members under the leadership of the United States, during the first decade, took a liberal view of the power and responsibilities of the General Assembly to justify the use of that veto-free organ to support their policies and achieve their purposes in the ‘cold war’. On the other hand, members, when they do not see the possibility of utilizing the United Nations to serve national interests (possibly because of their being in a minority position on important issues), tend to take a restrictive line in Charter interpretation.516

Perhaps the best reply to this type of criticism would be to say that (in the current period of international law, where the positions of the Cold War are if not reversed then at least significantly changed in this respect)517 the broad view of the intentions of the parties at San Francisco which was so popular in arguments by Western countries before the International Court in the 1940s, 1950s, and 1960s are today no less true for the fact that some of those countries have ceased to hold them. A similar point about the intention of parties and the European Convention on Human Rights518 is made by Simpson, who says that if we are to believe the judges on the European Court of Human Rights (which he suggests we ought not to), then human rights violations are taking place in Europe on a daily basis, and ‘this is only Reparation for Injuries Suffered in the Service of the United Nations (n 504), 182. Crawford, Brownlie’s Principles of Public International Law (n 186), 187. 514 Dissenting Opinion of Judge Krylov in Reparation for Injuries Suffered in the Service of the United Nations (n 504), 217–19; Dissenting Opinion of Judge Winiarski in Effects of Awards of Compensation made by the UN Administrative Tribunal (n 506), 64–6; Dissenting Opinion of Judge Winiarski in Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter) (Advisory Opinion) [1962] ICJ Rep 151, 230. 515 Charter of the United Nations, 26 June 1945, 892 UNTS 119. 516 Hambro, Goodrich, and Simons, Charter of the United Nations (n 511), 16. 517 See eg M Byers and G Nolte (eds), United States Hegemony and the Foundations of International Law (Cambridge University Press, 2003). 518 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 222. 512 513

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partially the result of moving the goal posts by interpreting the Convention as a living instrument’. He continues by observing that: Absolutely nobody thought that that was the situation back in 1950, and Lauterpacht was certainly no exception to the general mood of self-congratulatory optimism. He never imagined that the Strasbourg institutions would become as intrusive a force as they have subsequently become. One wonders what he would have made of Strasbourg today, with the Secretariat and the Court at risk of destruction in part by the living instrument they have developed, and by the huge extension of populations protected by the Convention, as well as by the use of the Convention by individuals who, back in the 1950s, would have simply accepted their lot?519

Though Simpson does not give any examples, it would surely not be wrong to impute to his words a criticism of rulings from the European Court such as Tyrer v United Kingdom520 and Airey v Ireland 521 where the European Court has held that the Convention is ‘a living instrument’ to be ‘interpreted in the light of present-day conditions’.522 The view expressed here by Simpson on the intentions of the parties—according to which no one had thought that the European Convention was intended by the parties to have any influence on the law of the member states of the Council of Europe—is open to question for the following reasons. It is, however, clear from the preamble that ‘the aim of the Council of Europe is the achievement of greater unity between its members and that one of the methods by which this aim is to be pursued is the maintenance and further realisation of human rights and fundamental freedoms’.523 The parties sought not just the achievement but also the further realization and the development of the rights at issue. This was clear also to the judges on the European Court in the first years of its activity. President McNair underlined already in 1961, as the European Court sat for the first time, the importance of the European state authorities collaborating ‘fully and conscientiously in implementing the Convention and aiding the Commission and the Court in their delicate task’; it can thus not have been an impossible contingency to the European Court’s first President (1959–65) that the Convention could become an intrusive force if the state authorities did not do so.524 Just as importantly, however, there exists proof from before 1950 that the European Convention was intended by the parties to have a very real effect indeed. 519 AWB Simpson, ‘Hersch Lauterpacht and the Genesis of the Age of Human Rights’ (2004) 120 LQR 49, 78. 520 Tyrer v United-Kingdom (n 134), 353. 521 Airey v Ireland (n 494) at [26]. 522 See J Christoffersen, ‘The Impact of Human Rights Law on General International Law’ in MT Kamminga and M Scheinin, The Impact of Human Rights Law in General International Law (Oxford University Press, 2009), 47–8. 523 Preamble, Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 222. 524 A McNair, The Rights of the European Citizen (Directorate of Information of the Council of Europe, 1961), 9–10. Also: H Waldock, ‘The European Convention for the Protection of Human Rights and Fundamental Freedoms’ (1958) 34 BYIL 356; H Golsong, ‘The European Convention on Human Rights before Domestic Courts’ (1962) 38 BYIL 445.

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Lauterpacht, whose work was acknowledged as being a direct forerunner to what would become the European Convention,525 said in 1949 that: ‘Even in democratic countries, situations may arise in which the individual is in danger of being crushed under the impact of reason of State’. He continued by explicitly mentioning human rights problems—as they had come to light in famous trials before the domestic courts of the United Kingdom, France, and the United States—and concluded that: even in countries in which the rule of law is an integral part of the national heritage and in which the Courts have been the faithful guardians of the rights of the individual, there is room for a procedure which will put the imprimatur of international law upon the principle that the State is not the final judge of human rights.526

The same point, that the Convention could indeed have serious effects on the law of Western European states, was made by Hartcourt Barrington—representative, together with Maxwell Fyfe, of the United Kingdom in the drafting of the European Convention. Hartcourt Barrington expressed what he called the British draftsmen’s great debt to Lauterpacht, from whom they ‘shamelessly borrow[ed] many ideas’. Hartcourt Barrington said that the Convention was ‘intended to be enforceable, and therefore puts the rights in a very concise and clear form’.527 This background goes some way in tempering Simpson’s claim. As another President of the European Court would put it, the Convention was indeed, as both its preamble and drafting history show, ‘intended to evolve in response to changes in legal and social concepts’.528

3.3.14 Loizidou and Bankovic The point could be illustrated with the judgments of the Grand Chamber of the European Court in Loizidou (Preliminary Objections)529 and Bankovic.530 The decision in Loizidou (Preliminary Objections) bore on whether an invalid reservation to a treaty is severable. It had been the orthodox position of general international law that it was not,531 though, as Higgins has pointed out, the exact scope of the orthodox position, as set out by the International Court in Reservations to the Genocide Convention, is debatable, which makes it possible to say that there is no bifurcation between human rights law and the orthodox position.532 Turkey had agreed to the application of the European Convention533 and the competence of the Court H Lauterpacht, An International Bill of the Rights of Man (reissue, Oxford University Press, 2013). H Lauterpacht, ‘The Proposed European Court of Human Rights’ (1949) 35 GST 25, 33–4. Also: P Sands, ‘Introduction’ in H Lauterpacht, An International Bill of the Rights of Man (n 525). 527 JH Barrington, ‘The Proposed European Court of Human Rights’ (1949) 35 GST 41. 528 Waldock, ‘Evolution of Human Rights’ (n 116), 547. 529 Loizidou v Turkey (Preliminary Objections) (1995) 103 ILR 622. 530 Bankovic v Belgium (2001) 123 ILR 94. 531 See Reservations to the Convention on Genocide (n 37); Certain Norwegian Loans (n 37); H Lauterpacht, ‘Some Possible Solutions of the Problem of Reservations to Treaties’ (1953) 39 GST 97. 532 R Higgins, ‘The ICJ, the ECJ, and the Integrity of International Law’ (2003) 52 ICLQ 1, 18. 533 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 222. 525

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in respect of ‘matters coming within Article 1 of the Convention and performed within the boundary of the national territory of the Republic of Turkey’, a reservation which was plainly intended to exclude the northern part of Cyprus from the jurisdiction of the European Court. The Grand Chamber of the Court held that the ‘invalid’ Turkish reservation was severable, and that Turkey therefore must be taken to have accepted the competence of the Court without any reservation at all.534 Before it could turn to the question of severability, however, the Grand Chamber had to ascertain whether the reservations in issue were acceptable; it was in this connection that the Grand Chamber discussed the evolutionary interpretation of the Convention and the intentions of the states parties to it. The Grand Chamber noted that the Convention was a living instrument which must be interpreted in the light of present-day conditions, and that such an approach was not confined to the substantive provisions of the Convention but also applied to those provisions, such as Articles 25 and 46, which govern the operation of the Convention’s enforcement machinery. The Grand Chamber then made the following point about the intentions of the parties and evolutionary interpretation: ‘these provisions cannot be interpreted solely in accordance with the intentions of their authors as expressed more than forty years ago’.535 This sounds like an outright repudiation of the argument made in this book. It should be added, however, that the Grand Chamber was not convinced that it would in fact be going against the grain of the intentions of the parties if it were to make, as in the event it would do, an interpretation of the provisions leading to a treatment of the objectionable reservation as severable. The Grand Chamber underlined that it would not be in line with the object and purpose of the Convention to say that the contracting parties may impose restrictions on their acceptance of the competence of the Commission and the Court under Articles 25 and 46. This is in keeping with the thread that runs through both of the examples above—it would be wrong to adopt too narrow a view of the intentions of the parties.536 It is also in keeping with the broader point made in this chapter: it is the taking into account of all the means on interpretation to which the treaty interpreter is directed by Articles 31–33 of the VCLT, of which the object and purpose is an important element, that leads to the establishment of what was the intention of the parties properly so-called. In fact, therefore, the Grand Chamber in Loizidou (Preliminary Objections) based its evolutionary interpretation upon the objectivized intention of the parties as established on the basis of the approach of the VCLT —although the Grand Chamber did so malgré elle. In Bankovic the Grand Chamber of the European Court later, in respect of the interpretation of Article 1 of the European Convention, distinguished the evolutionary interpretation it had made in Loizidou (Preliminary Objections).537 534 See the criticism by R Jennings, ‘The Proliferation of Adjudicatory Bodies’ [1995] ASIL Bulltetin no 92, 5–6. 535 Loizidou v Turkey (n 529), 645. 536 See Acquisition of Polish Nationality PCIJ (1923) Series B No 7, 20. 537 Bankovic v Belgium (n 530), 110–11 at [64]–[65].

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When the Court held in Bankovic that it was, in principle, out of the question to make an evolutionary interpretation of Article 1,538 it observed that this was so because the scope of that provision ‘is determinative of the very scope of the Contracting Parties’ positive obligations and, as such, of the scope and reach of the entire Convention system of human rights’ protection’.539 This, according to the Court, set the interpretation of Article 1 apart both from the interpretation of the Convention’s substantive provisions,540 and the provisions of the Convention which regulate the competence of the Convention organs to examine a case, the latter of which had been at issue in Loizidou (Preliminary Objections).541 The argument is colourable that the scope and reach of the Convention were intended to be evolutionary. That is the approach the International Court and its predecessor have taken to the evolutionary interpretation in similar situations where the scope and reach of the provisions contained in an instrument have depended upon the interpretation of the terms contained in one particular provision. Thus in Aegean Sea the Court, called upon to interpret a state’s instrument of accession to a treaty excluding from the Court’s jurisdiction ‘disputes relating to territorial status’ of that state, where the meaning of ‘territorial status’ was contested, stated that: once it is established that the expression ‘the territorial status of Greece’ was used in Greece’s instrument of accession as a generic term denoting any matters comprised within the concept of territorial status under general international law, the presumption necessarily arises that its meaning was intended to follow the evolution of the law and to correspond with the meaning attached to the expression by the law in force at any given time. This presumption, in the view of the Court, is even more compelling when it is recalled that the 1928 Act was a convention for the pacific settlement of disputes designed to be of the most general kind and of continuing duration, for it hardly seems conceivable that in such a convention terms like ‘domestic jurisdiction’ and ‘territorial status’ were intended to have a fixed content regardless of the subsequent evolution of international law.542

These points seem to apply with no less force in respect specifically of the interpretation of Article 1 of the European Convention. Moreover, as mentioned above, the Preamble of the Convention itself clearly states that it is the European Court’s task to secure not only ‘the maintenance’ of the human rights and fundamental freedoms; it also sets out the task of ensuring the ‘further realisation of human rights and fundamental freedoms’. The French version of the Preamble speaks of

538 Article 1 ECHR provides: ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.’ 539 Bankovic v Belgium (n 530), 111 at [64]. Also: Al-Skeini and Others v Secretary of State for Defence [2007] UKHL 26, [2008] 1 AC 153, 199 at [69] (Lord Rodger), 214–15 at [128] (Lord Brown). 540 The Grand Chamber cited as instances thereof Dudgeon v United Kingdom 22 October 1981, Series A No 45; X, Y, and Z v United Kingdom 22 April 1997 Rep 1997 II; V v United Kingdom App No 24888/94 ECHR 1999 IX; Matthews v United Kingdom App No 24833/94 ECHR 1999 I. 541 Loizidou v Turkey (n 529). See Bankovic v Belgium (n 530), 110–11 at [64]–[65]. 542 Aegean Sea Continental Shelf (n 15), 32 at [77]. Also: Navigational and Related Rights (Costa Rica v Nicaragua) (n 17), 242–44; Nationality Decrees Issued in Tunis and Morocco (n 133), 23–4.

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‘la sauvegarde et le développement des droits de l’homme et des libertés fondamentales’. This injunction must be taken seriously. As former President of the European Court of Human Rights, Jean Paul Costa, observes: le Préambule de la Convention indique que le but du Conseil de l’Europe, et donc de la Cour, est non seulement la sauvegarde des droits et libertés, mais encore leur développement. Cela implique une conception évolutive et progressive du contenu des droits reconnus, et la Cour manquerait à une partie de ses devoirs si elle ne veillait qu’à la sauvegarde des droits en néglieant l’impératif de leur développement.543

Not to take the living instrument, or evolutionary, approach to Article 1 of the Convention would amount to a failure of taking into account the ‘conception évolutive et progressive du contenu des droits reconnus’ which, by the clear admission of the Preamble, is incumbent upon the Court. But given that the Court in Bankovic also made the statement that the rights of the Convention could not be ‘divided and tailored’,544 it is possible to have some sympathy for the conclusion the Court reached in Bankovic in respect of whether the living instrument approach could be taken to Article 1. Giving an evolutionary interpretation to the gatekeeper provision of Article 1, the result of which would be the broadening of the scope and reach of an indivisible and untailorable Convention, could, given the way the scenario was presented by the Court, be seen to be a tall order. In Al-Skeini,545 however, the Grand Chamber, overturning Bankovic on this point at least, made clear that the rights and obligations in the Convention can in fact be ‘divided and tailored’.546 This largely takes the sting out of the point which the Grand Chamber made about the territorial reach and scope of the Convention in Bankovic, that it would take a restrictive approach to the possible expansion, ratione loci, of the ‘scope and reach of the entire Convention system of human rights’ protection’.547 In fact, as will be seen in Chapter 5, the Grand Chamber has explicitly taken an evolutionary approach to the scope and reach of the Convention rights in temporal terms. There is no Convention article that regulates the scope ratione temporis in the way that Article 1 bears on the scope ratione loci. In developing its approach to the scope of the Convention ratione temporis, the Grand Chamber in Šilih548 explicitly saw the obligations at issue as having ‘evolved’, and it did so in Šilih, and in later cases, on the basis of the idea that, in temporal terms like in territorial terms, the application of the Convention rights can be ‘divided and tailored’.549 Costa, La Cour européenne des droits de l’ homme (n 184), 43. Bankovic v Belgium (n 530), 114 at [75]. 545 Al-Skeini v United Kingdom App No 55721/07 at [137]. 546 Crawford, Brownlie’s Principles of Public International Law (n 186), 653. 547 Bankovic v Belgium (n 530), 111 at [64] (my emphasis). 548 Šilih v Slovenia App No 71463/01, judgment [GC] of 9 April 2009 at [1]‌–[2]. 549 This evolution has only been applied to certain (especially important) rights of the Convention: Janowiec and Others v Russia App Nos 55508/07 and 29520/09, judgment [GC] of 21 October 2013; Lyubov Efimenko v Ukraine App No 75726/01 25 November 2010; Frandeş v Romania App No 35802/05, judgment 17 May 2011 (where Art 2 was concerned); Tuna v Turkey App No 22339/03 judgment 19 January 2010; Stanimirović v Serbia App No 26088/06 18 October 2011; PM v Bulgaria App No 49669/07, judgment 24 January 2012; Yatsenko v Ukraine App No 75345/01, judgment 16 February 2012 (where Art 3 was concerned). 543

544

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Chapter 5 will show, however, that the evolutionary interpretation which the Grand Chamber made in Šilih was supererogatory, as a straightforward application of the age-old doctrine of jurisdiction ratione temporis in international law, as developed already by the Permanent Court of International Justice, would have led to the same result.550 In fact, the question of the ‘living instrument’ or evolutionary interpretation of Article 1 of the European Convention is moot for the same reasons as the question of an evolutionary approach to jurisdiction ratione temporis is moot. The European Court can, instead of seeing the correct interpretation of Article 1 as a question of evolutionary interpretation, simply apply the approach of general international law. In considering the same issue as confronted the European Court in Bankovic, the International Court observed in the Wall opinion that, in light of its object and purpose, the International Covenant on Civil and Political Rights551 was ‘applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory’.552 This was confirmed in Congo v DRC.553 Subsequently the Court has even done away with the mention of exercise of jurisdiction, stating in Russia v Georgia (Provisional Measures) that Articles 2 and 5 of the International Convention on the Elimination of All Forms of Racial Discrimination554 ‘generally appear to apply, like other provisions of instruments of that nature, to the actions of a State party when it acts beyond its territory’.555 As far as general international law is concerned, ‘a State will’, in the words of President Higgins, ‘of course be responsible for the acts attributable to it, even when those occur outside of its own jurisdiction’.556

550 Electricity Company of Sofia and Bulgaria (Belgium v Bulgaria) (1939) PCIJ Rep Ser A/B No 77, 82; Case concerning Right of Passage over Indian Territory (Merits) (Judgment) [1960] ICJ Rep 6, 35. Also: A Koroma, ‘Assertion of Jurisdiction by the International Court of Justice’ in P Capps, M Evans, and S Konstadinidis (eds), Asserting Jurisdiction: International and European Legal Persprectives (Hart, 2003), 196; S Rosenne, The Time Factor in the Jurisdiction of the International Court of Justice (AW Sythoff, 1960); WD Krause-Ablaß, Intertemporales Völkerrecht (Forschungsstelle für Völkerrecht und ausländisches Recht der Universität Hamburg, 1969), 29– 30; P Tavernier, Recherches sur l’application dans le temps des actes et des règles en droit international public (LGDJ, 1970), 215–20; R Higgins, Themes and Theories: Selected Essays, Speeches, and Writings in International Law, vol II (Oxford University Press, 2009), 875–80. 551 International Covenant on Civil and Policial Rights, 16 December 1966, 999 UNTS 171. 552 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, 180 at [111]. 553 Armed Activities on the Territory of the Congo (DRC v Uganda) [2005] ICJ Rep 168, 243 at [216]. 554 International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, 660 UNTS 195. 555 Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v Russian Federation) (Provisional Measures) [2008] ICJ Rep 353, 386 at [109]. 556 R Higgins, ‘A Babel of Judicial Voices? Ruminations from the Bench’ (2006) 55 ICLQ 791, 795. Also: B Simpson and L Moor, ‘Ghosts of Colonialism in the European Convention on Human Rights’ (2005) 76 BYIL 121, 123; T Meron, ‘Extraterritoriality of Human Rights Treaties’ (1995) 89 AJIL 80–1.

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3.3.15 Conclusion It is possible on this basis to conclude that the evolutionary interpretations arrived at in Namibia557 and in Tyrer v United Kingdom558 and Airey v Ireland 559 as well as numerous cases in the jurisprudence of the European Court are best understood on the background of the intention of the parties, that is, an intention which is established objectively on the basis of the means of interpretation legitimately available. As the Tribunal in RosInvest (Jurisdiction) put it, human rights treaties ‘represent the very archetype of treaty instruments in which the Contracting Parties must have intended that the principles and concepts which they employed should be understood and applied in the light of developing social attitudes’;560 the common thread in human rights treaties ‘is that their nature or circumstances provide evidence that the Parties themselves intended or understood that an evolutionary approach was appropriate to the interpretation and application of what they had agreed upon’.561 If the common intention of the parties is given a restricted reading—one which does not fully take into account what the parties intended to achieve when concluding the instrument—then one may easily end up wrongly criticizing interpretations made in respect of treaties, elements of which were meant from the outset to evolve. There are, however, times when the intentions of the parties were that the treaty terms should be interpreted not in an evolutionary manner but rather contemporaneously. In such cases, too, it is the common intention of the parties which is controlling.

3.4 Conclusion The analysis above has borne out that evolutionary interpretation is inexorably linked to the objectivized intention of the parties. The giving of effect to the intention of the parties does not have to be a deterrent to the use of evolutionary interpretation; rather the two—the intention of the parties and the evolutionary interpretation of treaties—are cut from the same cloth. This is why one can say that Article 31 of the VCLT562 has played a critical role in the development of an evolutionary approach to treaty interpretation. In that sense evolutionary interpretation relates to the intention of the parties in the same way that contemporaneous interpretation does. When one looks at the interpretive results arrived at by the International Court in, for example, Namibia or Navigational Rights, and one takes into account the careful way in 557 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) (n 14), 16. 558 Tyrer v United Kingdom (n 134) 58 ILR 339. 559 Airey v Ireland (n 494). 560 RosInvestCo UK Ltd v Russian Federation (n 507), at [39]. 561 RosInvestCo UK Ltd v Russian Federation (n 507), at [39]–[40]. 562 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, (1969) 8 ILM 679.

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which the Court in those cases relied on the will of the parties, then one sees that this insistence on the importance of the intention of the parties is not by definition conservative. That which could be thought to be conservative would be to take too narrow an approach to what in fact was the common intention of the parties and then proceed to rely on that narrow conception. As the analysis has brought out, the object of treaty interpretation is to give effect to the intention of the parties as fully and fairly as possible. The analysis has also shown that that will by necessity at times involve imputing an intention to be bound by an evolving interpretation of the terms of the treaty. Once the parties have chosen to clothe their intention in the form of treaty provisions, an international Tribunal seized of the interpretation of that treaty is bound and entitled to assume an effective common intention of the parties. If evolutionary interpretation is seen as a function of the common intention of the parties, it is not only rendered explicable; it also comes to us not as an aberrant and freewheeling interpretive technique but as nothing else than a result of the traditional canons of treaty interpretation. It is, to appropriate McNair’s description of Huber’s evolutionary interpretation in Spanish Zone of Morocco Claims,563 a ‘proper and commonsense’ interpretive technique.564 Equally, however, these insights make it necessary to take the argument one step further. Not only is evolutionary interpretation not exceptional, as it too is a result of the interpretive process described in the general rule of interpretation. Not only will it, as was seen at the beginning of this chapter, more often than not be corroborated by the subsequent practice of the parties, as has been the case in the jurisprudence of the International Court and also in the European Court of Human Rights. There are times when evolutionary interpretation is really wholly supererogatory, times when there simply is no need for it as the result to which it would have led already follows from the plain meaning of the text read in good faith. As has been seen in this chapter, interpretation of treaties drafted in generic terms indeed comes close to meaning that speaking of evolutionary interpretation may be of little use, as the mere wording comes so close to providing us with the answer. As seen above, this point was made already by the Permanent Court in Employment of Women during the Night when, in a statement of principle regarding ‘provisions which are general in scope’, it stated that: The mere fact that, at the time when the Convention . . . was concluded, certain facts or situations, which the terms of the Convention in their ordinary meaning are wide enough to cover, were not thought of, does not justify interpreting those of its provisions which are general in scope otherwise that in accordance with their terms.565

The same point, which if taken seriously leaves very little scope or need for evolutionary interpretation, was made more recently by the Panel Report in Certain

British Claims in the Spanish Zone of Morocco (1925) 2 RIAA 722, 725. McNair, The Law of Treaties (n 25), 468. Convention concerning Employment of Women during the Night (n 463), 377.

563

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Information Technology Products.566 At issue in this case was the interpretation of so-called concession commitments in relation to technological progress and whether the treaty text, ‘flat panel display devices’, covered types of technology, in the event LCD screens, which did not exist when the text was drafted. The Panel ‘applied the customary rules of interpretation of public international law, as codified in Article 31 of the Vienna Convention’ and, in doing so, ‘examined the ordinary meaning of the terms’, and the Panel went on to note that the ‘generic terms’ had been used in the treaty, ‘to cover a wide range of products and technologies’.567 In light of its conclusion on the ordinary meaning of the terms, the Panel did ‘not consider it necessary to resort to any form of evolutionary interpretation’.568 In this way the Panel in Certain Information Technology Products arrived at the same result to which an evolutionary interpretation would have led in the event, by relying upon what it saw as the ordinary meaning of the terms. In fact the same could be said about Navigational Rights, where Judge ad hoc Guillaume held that the result which the Court had reached by way of evolutionary interpretation could also be reached by way of ordinary interpretation of the wording. For he found that ‘the drafters of the 1858 Treaty intended to cover the transport for profit of passengers as well as of goods when they referred to navigation for commercial purposes’.569 In other words, it was arguably not necessary to resort to any form of evolutionary interpretation here either. In any event, these insights add to the point that there is nothing exceptional about evolutionary interpretation. Not only does evolutionary interpretation follow as naturally from the general rule of interpretation; it is, at times, nothing else than a different name for, as the Permanent Court put it in Employment of Women during the Night, interpreting treaty provisions ‘in accordance with their terms’.570

566 European Communities and its Member States—Tariff Treatment of Certain Information Technology Products (n 167). 567 European Communities and its Member States—Tariff Treatment of Certain Information Technology Products (n 167) at [7.597]–[7.599]. 568 European Communities and its Member States—Tariff Treatment of Certain Information Technology Products (n 167) at [7.600]. Cf China—Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/AB/R, 21 December 2009 at [47], [396]. 569 Separate Opinion of Judge ad hoc Guillaume in Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) (n 17), 290, 298. 570 Convention concerning Employment of Women during the Night (n 463), 377.

4 The Intertemporal Law ‘One must be absolutely modern.’

A Rimbaud, A Season in Hell (E Rhodes Peschel tr, Oxford University Press, 1933), 105

4.1 Introduction International law, as a system, deals with international persons, events, and transactions existing in time. If one is concerned to resolve a problem arising at a given time, one applies the international law of that time; if one is concerned to resolve a problem arising after that time, one asks how it is that international law may have changed since then, and the extent to which this change makes a difference.1 Legal principles cannot change the laws of nature or rebut philosophic theorems. They can, however, autonomously frame events and juridical facts as relevant or irrelevant.2 One ought probably not to make too large claims for the scientific or philosophic pertinence of these legal insights but instead take them for what they are: legal principles that claim legal currency only. Rousseau, in his treatment of the temporal aspects of treaty law, framed the issue of the intertemporal law in the following way: the question is ‘à quel moment doit se placer l’arbitre ou le juge international pour déterminer le droit applicable au litige qui lui est soumis’?3 This is certainly true where treaty interpretation is concerned; to come to grips with the intertemporal law, however, it is necessary to look at this issue more broadly. In international law, rights may, according to the principle of intertemporality, cease in certain cases to be effective as the result of the development of new rules of law attaching conditions of the continued validity of these rights.4 The rule of intertemporality has therefore been applied in the interpretation of treaties, not least treaties concerning territory. Nonetheless the intertemporal law has in no way been J Crawford, International Law as an Open System: Selected Essays (Cameron May, 2002), 69. K Doehring, ‘Die Wirkung des Zeitablaufs auf den Bestand völkerrechtlicher Regeln’ [1964] Max Planck Jahrbuch 70, 70–1; H Lammasch, Die Lehre von der Schiedsgerichtsbarkeit in ihrem ganzen Umfange II (Kohlhammer, 1914), 178. 3 C Rousseau, Principes généraux du droit international public (Pedone, 1944), 493. 4 H Lauterpacht, The Function of Law in the International Community (reissue, Oxford University Press, 2011), 291. 1 2

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limited to that type of treaty.5 Evolutionary interpretation is closely connected to the evolution of international law, and thus also to intertemporal law.6 The Vienna Convention on the Law of Treaties (VCLT)7 itself contains no general rule on the inter-temporal question. Aside from the fact that Article 31(3)(c) provides that treaties are to be interpreted in accordance with any relevant rules of law applicable in the relations between the parties, there is no reference to the intertemporal rule, in the way for example Waldock had suggested that there should be.8 Thus the VCLT nowhere seeks to deal generally with the temporal element in the interpretation of treaties. The significance of this temporal element, as the ILC made clear in its final report to the General Assembly, depends on the common intention of the parties; ‘any attempt to formulate a rule governing comprehensively the temporal element would present difficulties’.9 The ILC thus limited itself simply to saying that the ‘correct application of the temporal element would normally be indicated by interpretation of the term in good faith’.10 It is plain therefore, as was seen in Chapter 3, that the intentions of the parties are controlling here as with regard to other questions. It is ‘generally the case in international law’, the International Court said in Temple of Preah Vihear (Preliminary Objections), that one ‘places the principal emphasis on the intentions of the parties’.11 Whilst that is the point of departure, it is not, however, redundant to look to the background rules. This is clear from Pedra Branca where, in connection with treaties relating to the passing of sovereignty over a territory, the International Court cited the dictum from Temple of Preah Vihear and then turned to the intertemporal law.12 Turning to 5 Affaire de la Compagnie agricole du détroit de Puget (1869) 2 Recueil des arbitrages internationaux 513–17; Award of the Alaska Boundary Tribunal (1903) 15 RIAA 490, 491–3; Rights of Nationals of the United States of America in Morocco (Judgment) [1952] ICJ Rep 176, 189; Case concerning Right of Passage over Indian Territory (Merits) (Judgment) [1960] ICJ Rep 6, 37; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) [1971] ICJ Rep 16, 31; The Indo-Pakistan Western Boundary (Rann of Kutch) between India and Pakistan (1968) 50 ILR 2, (1968) 17 RIAA 1, 481–5; Aegean Sea Continental Shelf [1978] ICJ Rep 3, 32; Eritrea v Yemen (Phase One: Territorial Sovereignty and Scope of the Dispute) (1998) 114 ILR 1, 46, 115; Decision regarding delimitation of the border between Eritrea and Ethiopia (2002) 25 RIAA 83, 110, (2002) 130 ILR 1, 34 at [3.4]; Case Concerning the Delimitation of Maritime Boundary between Guinea-Bissau and Senegal (1989) 20 RIAA 119, 151– 2; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening) (Judgment) [2002] ICJ Rep 303, 404–7; Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) [2008] ICJ Rep 12, 50–1. 6 P Tavernier, Recherches sur l’application dans le temps des actes et des règles en droit international public: problèmes de droit intertemporel ou de droit transitoire (LGDJ, 1970); WD Krause-Ablaß, Intertemporales Völkerrecht (Forschungsstelle für Völkerrecht und ausländisches Recht der Universität Hamburg, 1969); Robert Kolb, Interprétation et création du droit international. Esquisse d’une herméneutique juridique moderne pour le droit international public (Bruylant, 2006), 581–2. 7 Vienna Convention on the Law of Treaties 23 May 1969, 1155 UNTS 331, (1969) 8 ILM 679. 8 ILC Ybk 1964/II, 9–10; G Distefano, ‘L’interprétation évolutive de la norme internationale’ (2011) 115 RGDIP 373, 386. See Ch 1. 9 ILC Ybk 1966/II, 222. 10 ILC Ybk 1966/II, 222. 11 Temple of Preah Vihear (Cambodia v Thailand) (Preliminary Objections) (Judgment) [1961] ICJ Rep 17, 31. 12 Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/ Singapore) (n 5), 50–1.

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these background rules is not equal to turning away from the controlling principle of the intentions of the parties. It was seen in Chapter 3 that the principle of good faith and consideration of the general purpose of the treaty may legitimately provide a substitute for any lack of common intention. ‘The principle of good faith’, in the words of Lauterpacht, ‘impels the assumption of a common purpose’.13 In Chapter 3.3 on the intentions of the parties it was seen how interpretation under the general rule of interpretation, while it is one integrated process,14 to some extent is a process of concentric encirclement,15 where the interpreter goes about establishing the intention of the parties in the treaty text, in the disputed terms, in the whole of the treaty, in general international law, and in the general principles of law. It is by this concentric encirclement that the judge is able to establish the intention of the parties, in conformity with the fundamental demands of the fullness of international law and justice. This was touched upon during the ILC debates on the law of treaties where, for example, Jiménez de Aréchaga made the point that ‘the free operation of the will of the parties should not be prevented by crystallizing every concept as it had been at the time when the treaty was drawn up’.16 It is in line with the general approach taken in this book, therefore, to turn now to the intertemporal law. In the most general sense, the intertemporal law recognizes that it is difficult, in interpreting an instrument, not to view it from the perspective of the time of interpretation. While it may be that the conduct of the parties closer to the time of a treaty’s conclusion is a more significant guide to the makers’ intentions than the parties’ later conduct, it is rather artificial to suppress, or at least to downplay, that conduct in arriving at the interpretation to be made.17 The choice of whether the treaty interpreter ought, in interpreting the treaty, to opt for a contemporaneous or evolutionary interpretation of a treaty term is underlain by the so-called rule of intertemporality. The main question raised by the intertemporal law is whether the legal effects of a fact or a situation in the past ought to be evaluated on the basis of the law contemporaneous with it or on the basis of the law valid at the time of its application.18 A precise statement of the principle of intertemporality has, however, proved difficult to articulate. Huber in Island of Palmas formulated the principle as a double helix.19 It has been argued that when Huber formulated the rule with its two limbs, 13 H Lauterpacht, International Law—Collected Papers IV (Cambridge University Press, 1978), 437–8. 14 P Reuter, Introduction to the Law of Treaties (J Mico and P Haggenmacher tr, Paul Kegan International, 1995), 96–7; R Gardiner, Treaty Interpretation (paperback edn, Oxford University Press, 2011), 5. 15 M Huber (1952) 45 Ann de l’Inst 200–1; R Gardiner, Treaty Interpretation (paperback edn, Oxford University Press, 2011), 141. 16 ILC Ybk 1964/I, 34. 17 DW Greig, Intertemporality and the Law of Treaties (BIICL, 2001), 138. 18 T Georgopoulos, ‘Le droit intertemporel et les dispositions conventionnelles évolutives’ (2004) 108 RGDIP 123, 127. 19 Island of Palmas (Netherlands v United States of America) (1928) 2 RIAA 829.

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he gave a new dimension to the rule.20 This assertion is, however, open to question, and this chapter sets out to show that both limbs of the rule of intertemporal law were well settled in international law when Huber restated them in Island of Palmas. The central issue in Island of Palmas was whether the root of title to certain territory in Spain’s discovery of the Island of Palmas could have provided an effective basis for transfer of sovereignty over it to the United States in the Treaty of Paris 10 December 1898,21 or whether the island belonged to the Netherlands, whose claim to sovereignty over the same territory was based on intervening centuries of peaceful and effective possession or occupation. In the sixteenth century, the time at which the island had been discovered, discovery was a fully recognized mode of acquisition of sovereignty. Possession or occupation as a mode of acquisition of sovereignty had, however, become recognized as increasingly significant in the intervening time. The first limb of Huber’s principle famously stated that: a juridical fact must be appreciated in the light of the law contemporary with it, and not the law in force at the time when a dispute in regard to it arises or falls to be settled.22

A treaty should, in other words, be interpreted in the light of the law in force at the time when the treaty was drawn up.23 Subject to this, the application of a treaty shall be governed by the rules of international law in force at the time when the treaty is applied: The same principle which subjects the act creative of a right to the law in force at the time the right arises, demands that the existence of the right, in other words its continued manifestations, shall follow the conditions required by the evolution of law.24

20 J Crawford, State Responsibility: The General Part (Cambridge University Press, 2013), 241–2; J Crawford, Brownlie’s Principles of Public International Law (8th edn, Oxford University Press, 2012), 218; PC Jessup, ‘The Palmas Island Arbitration’ (1928) 22 AJIL 735. 21 Treaty of Paris, 10 December 1898, 187 CTS 100, 11 Bevans 615. 22 See Island of Palmas (Netherlands v United States of America) (n 19), 845. Also: Enterprize in A de Lapradelle and N Politis, Recueil des arbitrages internationaux I (Pedone, 1905), 703; Hermosa and Créole in A de Lapradelle and N Politis, Recueil des arbitrages internationaux I (Pedone, 1905), 703–4; Lawrence in A de Lapradelle and N Politis, Recueil des arbitrages internationaux I (Pedone, 1905), 740–1; Volusia in A de Lapradelle and N Politis, Recueil des arbitrages internationaux I (Pedone, 1905), 741; The Pious Fund Case (United States v Mexico) (1902) 9 RIAA 1, 11–14; Cape Horn Pigeon (United States v Russia) (1902) 9 RIAA 63, 64; James Hamilton Lewis (United States v Russia) (1902) 9 RIAA 66, 67, and 69; CH White (United States v Russia) (1902) 9 RIAA 71, 72; Kate & Anna (United States v Russia) (1902) 9 RIAA 76, 77 (Cape Horn Pigeon, James Hamilton Lewis, CH White, and Kate & Anna should, however, be read in this connection with the considerable proviso that the arbitration treaties in issue specifically required the arbitrator only take into account the law in force at the time when the acts were performed); Pelletier in Moore, History and Digest of International Arbitrations to which the United States has been a Party II (Government Printing Office, 1898), 1750; SS Lisman. Disposal of pecuniary claims arising out of the recent war (1914–1918) (United States v United Kingdom) (1937) 3 RIAA 1767, 1771; Mixed Claims Commission: Sambaggio case (Italy v Venezuela) (1903) 10 RIAA 499, 522; Dissenting Opinion of Commissioner Nielsen in The Oriental Navigation Company (United States v United Mexican States) (1928) 4 RIAA 341, 352; Case concerning Right of Passage over Indian Territory (Merits) (Judgment) [1960] ICJ Rep 6, 37; Dissenting Opinion of Judge Spender in Case concerning the Temple of Preah Vihear (Cambodia v Thailand) (Merits) (Judgment) [1962] ICJ Rep 6, 128. 23 ILC Ybk 1964/II, 8. 24 Island of Palmas (Netherlands v United States) (n 19), 845 (emphasis added).

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Not only must claims to sovereignty based on old law be examined in the light of that law; any such claims, if put forward as still valid today, must be examined in the light of international law as it has developed during intervening centuries and, in particular, in the light of what international law, as it now stands, requires in order to constitute a title to territory.25 As Fitzmaurice put it, the second limb of the rule of intertemporality is as important as the first.26 He went on by saying: The continued existence at the present time of a right which existed once in the light of the law as it then stood, depends on the law as it stands now, and on conformity with the present requirements of the law: a right which once existed does not necessarily continue to exist, if in the meantime developments in the law have introduced new criteria governing the existence of such a right. In short, rights, in order to be valid today, must be kept up in accordance with the changing requirements of the law.27

It should be added, however, that the Tribunal in Island of Palmas tempered the second limb of its test somewhat, by adding the rider that the second limb would not be brought to bear in the case of ‘territories in which there is already an established order of things’.28 This may obviously be a difficult question of degree. The interpretation is a natural corollary to the modern doctrine according to which sovereignty involves the provision of guarantees for the observance of minimum standards of international law in the territory.29 The Permanent Court in Eastern Greenland thus treated continuity of display of state authority as an integral element in the Danish title to the territory.30 The Permanent Court did not regard it as sufficient that Denmark established its sovereignty at a particular moment in history. Instead, as the International Court later would do in Minquiers and Ecrehous,31 it traced the exercise of sovereignty through successive periods until the critical date when the territory that had been sought was annexed by Norway.32 One example of how carefully and flexibly this provision has been constructed in practice in the context of the rules regulating the acquisition of territory is found in the Declaration on Principles on International Law Concerning Friendly Relations and Co-operation Among Sates in Accordance with the Charter of the United Nations33 which provides that the concept of non-acquisition of territory by force was not to be affected by, among other things, any international agreement made prior to the Charter of the United Nations34 and at that time valid under international law:

International Court of Justice, Pleadings, Minquiers and Ecrehos, tome II, 53. G Fitzmaurice, ‘The Law and Procedure of the International Court of Justice, 1951– 54: General Principles and Sources of Law’ (1953) 30 BYIL 6. 27 Fitzmaurice, ‘The Law and Procedure of the International Court of Justice, 1951–54 (n 26). 28 Island of Palmas (Netherlands v United States) (n 19), 839. 29 H Waldock, ‘Disputed Sovereignty in the Falklands Islands Dependencies’ (1948) 25 BYIL 311, 321. 30 Legal Status of Eastern Greenland (Judgment) (1933) PCIJ Series A/B No 53, 22. 31 Minquiers and Ecrehos Case (France/United Kingdom) (Judgment) [1953] ICJ Rep 47. 32 H Waldock, ‘Disputed Sovereignty’ (n 29), 321. 33 Resolution 2625 (XXV), 24 October 1970. 34 Charter of the United Nations, 26 June 1945, 892 UNTS 119. 25

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The territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognized as legal. Nothing in the foregoing shall be construed as affecting: (a) Provisions of the Charter or any international agreement prior to the Charter régime and valid under international law.

It is, as stated above, important to note that in international law the principle on which Island of Palmas relied was not a new one. The difficulties to which intertemporality gives rise were acknowledged early on in international arbitral practice. Such arbitrations arose on the back of the gradual development of the customary rules concerning discovery and occupation. This type of title of acquisition of territorial sovereignty played an important role in diplomatic history; it was thus bound to happen that they should also be determined by arbitral tribunals. The awards of these tribunals reflect the gradual evolution of the law of nations in respect of the acquisition of sovereignty from the original legal sufficiency of discovery or symbolic occupation to the requirement of the effectiveness of the occupation.35 As Lauterpacht observed the development of international law in this matter has amounted to a series of attempts to apportion the respective shares of animus and corpus in the acquisition of territorial title. The answer to the question how much there must have been of actual occupation has varied from time to time. Little of it was required in the sixteenth and seventeenth centuries. Substantially more of it was demanded in the periods which followed. However, while the law clearly requires some manifestation of actual exercise of sovereignty, the degree and extent of such effectiveness must in each case be a matter for determination by the adjudicating tribunal. Its discretion in this matter may legitimately be influenced by a number of factors, including the nature and development of the region in question, the absence of adverse claims for a long period, or the absence of a better claim.36

One expression of this is found in Banks of Grisbadarna,37 which implicitly furnished an example of both limbs of the rule later to be restated in Island of Palmas. Under the Danish–Swedish Peace Treaty of Roskilde of 1658,38 Denmark ceded the Bohuslän Territory to Sweden. The land boundary between Norway and Sweden had been established by a 1661 boundary treaty,39 as seventeenth-century Norway and Sweden constituted one united kingdom. In the nineteenth century and later in the early years of the twentieth century, as disputes had arisen concerning certain lobster fisheries, it became necessary to delimit the course of the boundary seaward to the limit of the territorial waters. Had the maritime boundary between Norway and Sweden been fixed, whether in whole or in part, by the boundary treaty of 1661, 35 JHW Verzijl, International Law in Historical Perspective VIII: Inter-State Disputes and Their Settlement (AW Sijthoff, 1976), 307. 36 H Lauterpacht, The Development of International Law by the International Court (reissue, Cambridge University Press, 1982), 241. 37 Banks of Grisbadarna (Sweden v Norway) (1909) 11 RIAA 155. 38 Danish–Swedish Peace Treaty of Roskilde, 26 February (OS) 1658 or 8 March (NS) 1658, 5 CTS 1. 39 Norway–Sweden Boundary Treaty, 26 October 1661, 5 CTS 495.

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three years after the Treaty of Roskilde, and if not, what was the correct boundary according to international law? The conclusion of the Tribunal was that the boundary line had indeed been fixed by the 1661 treaty. Beyond that, however, the line was not certain. The Tribunal fixed the boundary by way of recourse to the principles contemporary with the original treaty of 1658, on the basis that these principles would have been applied by Norway and Sweden in the seventeenth century.40 The Tribunal said that ‘in order to ascertain which may have been the automatic dividing line of 1658 (when the territory was ceded by Denmark) we must have recourse to the principles of law in force at that time’.41 The award did not advert to the median-line or thalweg principles, as neither of them had been recognized in seventeenth-century international law. It adopted instead the ‘general direction of the coast’ principle, the principle of a line perpendicular to the general direction of the land, as being more in accord with the international law contemporary with the treaty. The reason why a change in the general rules of international law from the principle of the perpendicular line to the line of equidistance would not modify the application of the treaty was that the treaty was intended by the parties to constitute a definitive settlement of their boundary at its entry into force.42 While, in contrast, the direction of the line was determined by seventeenthcentury principle, the treaty had not specified the breadth of the territorial sea, on which there at the time had been no clear rule. The Tribunal effectively held that while the parties must have intended to settle their maritime frontier on seventeenth-century principles, the treaty in issue did not purport to fix the width of the territorial sea of the two countries. It was clear ‘that the application of the treaty delimitation of the frontier at any given time would follow the evolution of the general rules of international law in force concerning the extent of the territorial sea’.43 In applying, therefore, the treaty in the twentieth century, the law of that time was appropriate for ascertaining how far out the line went by reference to the developing law on the breadth of the territorial sea.44 The result was readily accepted by both parties, even the losing Norwegians were reported at the time to have ‘accepté sans mauvaise humeur excessive leur condamnation’.45 It is certainly true that the very oldest jurisprudence of international tribunals, and the writings of the most highly qualified publicists, hesitated at first as to how to grapple with the passage of time and intertemporality. Westlake said in 1910 that ‘titles must be judged by the state of international law at the time when, if at all, they arose’.46 This proposition he bore out by reference to Cape Horn Pigeon,47 James 40 Further: R Kolb, Case Law on Equitable Maritime Delimitation: Digest and Commentaries (Martinus Nijhoff, 2003), 13. 41 Banks of Grisbadarna (Sweden v Norway) (n 37), 159–60. 42 43 Gardiner, Treaty Interpretation (n 14), 257. ILC Ybk 1964/II, 10. 44 Gardiner, Treaty Interpretation (n 14), 257. 45 ‘Un conflit de limites maritimes entre la Norvège et la Suède: l’affaire des Grisbâdarna’ (1910) RGDIP 177, 189. 46 J Westlake, International Law I (2nd edn, Cambridge University Press, 1910), 114. 47 Cape Horn Pigeon (United States v Russia) (1902) 9 RIAA 63.

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Hamilton Lewis,48 CH White,49 and Kate & Anna50 in which the arbitrator, after having recited that according to the declarations exchanged between the two governments he was explicitly to decide by the general principles of the law of nations and the spirit of the international agreements applicable to the matter,51 observed that: il a été reconnu que cette stipulation n’aura aucune force rétroactive, et que l’arbitre appliquera aux cas en litige les principes du droit des gens et les traités internationaux qui étaient en vigueur et obligatoires pour les parties impliquées dans ce litige, au moment où la saisie des navires a eu lieu.

It could be noted, however, that there was no question in these cases of any change in a rule of international law.52 The arbitrator in the cases was in other words expressing himself by way of obiter dictum. Perhaps the most pertinent example is the Carolines arbitration.53 In this case between Germany and Spain something very much akin to the principle of intertemporal law had been relied on.54 Its particular pertinence stems from the fact that the parties had presented the arbitrator, Pope Leo XIII, with almost exactly the same question as would arise in Island of Palmas. The Carolines arbitrator decided in almost the exact same vein as Huber would do later in Island of Palmas: Spain had, in the sixteenth century, discovered the islands making up the Carolines and Palaos archipelago; it had founded in force its sovereignty over the islands by the principles of international law then in force. It was uncontested that only Spain had at the time acted so as to obtain the right to title according to the sixteenth-century rules. On the other hand Germany—as well as the United Kingdom—had, in 1875, declared expressly to the Spanish government that they did not recognize the sovereignty of Spain over the islands. Germany averred that it was effective occupation of a territory which gave rise to sovereignty over it, and that Spain had never occupied the archipelago in the fashion required. The arbitrator in his ruling affirmed the sovereignty of Spain over the archipelago, but this was tempered in three important ways. First, the Spanish government must, ‘in order to render effective its sovereignty’, establish on the islands a regular administration which would be capable of safeguarding order and guaranteed rights. Secondly, Spain must offer to Germany full liberty of commerce, navigation, and fishery in the James Hamilton Lewis (United States v Russia) (1902) 9 RIAA 66. CH White (United States v Russia) (1902) 9 RIAA 71. Kate & Anna (United States v Russia) (1902) 9 RIAA 76. 51 It is difficult to tell whether this ought to be construed as the parties wanting to follow or diverge from what they perceived to be the background principles of international law. If indeed they saw themselves as following, by inserting this clause into the compromis, the principles of international law, then it is difficult to conclude otherwise than their insertion having been redundant. See, however, ILC Ybk 2001/II, 58 which concludes that: ‘In these cases the arbitrator was required by the arbitration agreement itself to apply the law in force at the time the acts were performed. Nevertheless, the intention of the parties was clearly to confirm the application of the general principle in the context of the arbitration agreement, not to establish an exception.’ 52 Westlake, International Law I (n 46), 114. 53 Carolines, 22 October 1885, reprinted in MC Calvo, Le droit international: théorique et pratique (6th edn, Pedone, 1888), 420. 54 Carolines (n 53), 420–1. 48 49

50

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archipelago, as well as the right to establish there a naval station and a coal depot. And, thirdly, Germany was to be given the right to establish plantations and agriculture on an equal footing with Spanish nationals.55 The Carolines arbitration is therefore, as Basdevant said, an early precedent for the proposition that ‘la reconnaissance de la souveraineté acquise selon le droit ancien est . . . tempérée par l’engagement de la rendre plus active selon le vœu du droit moderne’.56 This solution was, in material terms, the one codified in the General Act of the Berlin Conference regarding Africa,57 and later reiterated in the Convention of St Germain-en-Laye.58 Article 10 of the Convention of Saint-Germain provided that: les Hautes Parties contractantes reconnaissant l’obligation de maintenir, dans les régions relevant de le leur autorité, l’existence d’un pouvoir et des moyens de police suffisants pour assurer la protection des personnes et des bien et, le cas échéant, la liberté du commerce et du transit.

Against this background, it is not clear that Huber gave the rule of intertemporal law a new dimension when he set out its two limbs in Island of Palmas.

4.2 Normative Criticisms of the Principle of Intertemporality In his study of the acquisition of territory under international law, Jennings saw the rule relied on in Island of Palmas as being all in all reasonable.59 It was reasonable because, in his view, it must be remembered that what was in question in Island of Palmas was not ownership of land but rather the exercise of territorial sovereignty, which carries with it responsibility as well as rights. He cautioned, however, against the second branch of the rule of intertemporal law being allowed to mean more than this. In such a case the result would be not only that title would cease to have significance; it would also mean the first part of the rule is itself virtually cancelled of its effect. This would mean, he concluded, that title would have to be earned again at every moment of time. Under such conditions no title would be secure and the aim of the rule of intertemporality—stability—would suffer utter defeat.60 In more general terms Doehring, implicitly taking issue with the intertemporal rule, has observed that any taking into account whatever of the law as it stands not at the time of the occurrence but rather at the later time of adjudication is toxic to the relation of the parties and to the settlement of differences.61 Carolines (n 53), 420–1. J Basdevant, ‘Efficacité des Règles générales du droit de la paix’ (1936) 58 Hague Recueil 537. Also: M Kohen, Possession contesté et souveraineté territoriale (Presses universitaires de France, 1997), 184. 57 General Act of the Berlin Conference regarding Africa, 26 February 1885, Martens Nouveau Recueil (Series 2) Vol 10, 409. 58 Convention of St Germain-en-Laye, 10 September 1919, 226 CTS 186. 59 R Jennings, The Acquisition of Territory in International Law (Manchester University Press, 1963), 30. 60 Jennings, The Acquisition of Territory in International Law (n 59), 29–30. 61 Doehring, ‘Wirkung des Zeitablaufs’ (n 2), 88 (‘vergiftet die Beziehungen der Partner und verhindert eine Beruhigung der politischen und rechtlichen Lage’). 55

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It has furthermore been warned against extending Huber’s intertemporal rule from sovereignty over territory, the subject matter in Island of Palmas, to treaty interpretation generally.62 As Basdevant remarked, however, ‘les questions de droit intertemporel dans le domaine du droit des gens, questions qu’ignore généralement la doctrine, ne se sont posées en jurisprudence qu’à propos de différends territoriaux’.63 For a long time territorial disputes were the bread and butter of international tribunals; it is no surprise, therefore, that the issue should surface most prominently in this type of case.

4.2.1 Jessup’s criticism of the principle of intertemporality The principle of intertemporality was, however, most famously criticized by Jessup. He attempted in his criticism to take the axe to the very root of the ruling in Island of Palmas, the effects of which were, to his mind, highly disturbing.64 Jessup in his criticism gave an example in order to bear out the to his mind deleterious effects which would follow in the wake of the principle on which Island of Palmas was based: Assume that State A in a certain year acquires Island X from State B by a treaty of peace after a war in which A is the victor. Assume Island X is a barren rocky place, uninhabited and desired by A only for strategic reasons to prevent its fortification by another Power. Assume that A holds Island X, but without making direct use of it, for two hundred years. At the end of that time suppose that the development of international morality has so far progressed as to change the previous rule of international law and that the new rule is that no territory may be acquired by a victor from a vanquished at the close of a war. Under the theory of ‘intertemporal law’ as expounded, it would appear that A would no longer have good title to Island X but must secure a new title upon some other basis or in accordance with the new rule. Such a retroactive effect of law would be highly disturbing.65

The argument put forward by Jessup in his example is open to criticism, and that criticism seems logically to fall in four parts.

4.2.2 Jessup’s first criticism First, Jessup’s case in point is different from the legal situation in Island of Palmas. While the norm relied on by Huber related only to the facts obtaining at the time of the coming into force of the norm itself, the norm in Jessup’s example bears on the way in which the territory was acquired in the first place. Thus A’s right to Island X in Jessup’s example could only be extinguished if it was applied to the acquisition which took place 200 years before the norm’s coming into force.66 This was, 62 Gardiner, Treaty Interpretation (n 14), 253. Further: R Higgins, ‘Some Observations on the Inter-Temporal Rule in International Law’ in Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Krzystof Skubiszewski (Kluwer, 1996), 174. 63 Basdevant, ‘Efficacité des Règles générales’ (n 56), 538. 64 Jessup, ‘Palmas Island Arbitration’ (n 20), 740. 65 Jessup, ‘Palmas Island Arbitration’ (n 20), 740. 66 Krause-Ablaß, Intertemporales Völkerrecht (n 6), 27–8; HW Baade, ‘Intertemporales Völkerrecht’ (1957) 7 GYIL 229, 242.

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however, exactly that which the Tribunal was at pains to avoid in Island of Palmas; it made very clear that the effects of the new rule was that ‘discovery alone, without any subsequent act, cannot at the present time suffice to prove sovereignty over the Island of Palmas’.67 It is thus far from clear that the effect here described is in point of fact retroactive. Rather the case is that the change of law prompts a change ex nunc as opposed to ex tunc.68 This has parenthetically led one commentator to argue not only that Jessup had misunderstood the difference between nullity ex nunc and ex tunc but also that his was an outright misreading of the whole Island of Palmas case.69 In the light of the above, this criticism of Jessup’s stance seems fair.

4.2.3 Jessup’s second criticism Secondly, counter examples to Jessup’s example could be imagined that would make very clear the necessity of the rule of intertemporality. One could think of examples bearing on colonialism. It could hardly be disputed that colonialism was central to the development of international law.70 It is possible, therefore, to imagine examples to do with slavery, exploitation, and the rights of peoples to self-determination which would furnish us with situations in which that which was once in conformity with international law at a later point is singularly in breach of a newly emerged rule because, to use Jessup’s words, ‘the development of international morality has so far progressed as to change the previous rule of international law’.71 Seeing as this type of development of international morality will very often touch on the creation of jus cogens norms, reference should here be made to the next chapter, which deals with the phenomenon of jus cogens superveniens, where such examples are given. Suffice it therefore here to give one example, from the jurisprudence of the International Court. Western Sahara is a case in point.72 There, in connection with the decolonization of Western Sahara in conformity with Resolution 1514 (XV),73 the International Court was faced with the question, which law applied, the old one of the nineteenth century or the new twentieth-century one of self-determination? The International Court began by observing that the questions before it must be addressed ‘by reference to the law in force at that period’.74 The Court had found that there existed, at the time of Spanish colonization, ‘legal ties of allegiance between the Sultan of Morocco and some of the tribes living in the territory of Western Sahara’.75 The materials and information presented to the Court had also shown the existence of rights, including some rights relating to the land, which constituted legal ties Island of Palmas (Netherlands v United States) (n 19), 846 (emphasis added). See Ch 4.3 on jus cogens superveniens. 69 Krause-Ablaß, Intertemporales Völkerrecht (n 6), 28. 70 A Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press, 2004), 2–3. 71 Jessup, ‘Palmas Island Arbitration’ (n 20), 740. 72 Western Sahara (Advisory Opinion) [1975] ICJ Rep 12. 73 Resolution 1514 (XV), 14 December 1960. See Ch 3.3.13. 74 Western Sahara (Advisory Opinion) (n 72), 38–9. 75 Western Sahara (Advisory Opinion) (n 72), 68. 67

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between the Mauritanian entity and the territory of Western Sahara. The Court made clear that its ruling was one which took into account both limbs of the principle of intertemporality when it commented on its own conclusion that the materials and information presented to it did not establish any tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco or the Mauritanian entity: Thus the Court has not found legal ties of such a nature as might affect the application of resolution 1514 (XV) in the decolonization of Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory.76

This was in line with the argument of Algeria and went against the grain of the argument presented by Morocco. This final sentence of the Court’s ruling, as Tavernier has said, is: un point essential qui montre le souci de la Cour de ne pas s’en tenir à l’examen du droit ancien, qui lui était demandé par l’Assemblé générale des Nations Unies, et de prendre en compte le droit actuel reflété dans la Charte et dans les résolutions relatives à l’autodétermination. Dans ces conditions, on peut considérer que la Cour a appliqué correctement les principes du droit intertemporel dans cette affaire.77

Morocco in fact made the same mistake in its criticism of intertemporal law as Jessup had done in his criticism of Island of Palmas: in its pleadings Morocco had assumed that the second limb of the intertemporal rule would mean that the title was invalid retroactively. This was based on a two-fold misconception: first, the new norm did not in point of fact reopen the question of the title acquired at the date of colonization, it rather demanded its cessation and just possibly eroded it; secondly, the new norm did not operate on the basis of re-examining old titles but based itself on the rights of the inhabitants of the colonially defined territory to self-determination.78 If one sees the rule of intertemporality under the angle of colonialism and the right of peoples to self-determination, as the International Court did in Western Sahara, its soundness becomes very clear, even clearer than was in the case of the two colonial powers vying for imperium over a faraway territory in Island of Palmas.

4.2.4 Jessup’s third criticism A third criticism levelled at the principle relied on by the Tribunal in Island of Palmas by Jessup was that the application of Huber’s principle would mean chaos 76 Western Sahara (Advisory Opinion) (n 72), 68. This point seems to be lost on some authors, who claim that the Court did not fully engage with the intertemporal issues to which the case gave rise, and instead adopted a ‘conservative’ approach: M Shaw, ‘The Western Sahara Case’ (1978) 49 BYIL 119, 152; M Koskenniemi, From Apology to Utopia (2nd edn, Cambridge University Press, 2005), 456–7. 77 P Tavernier, ‘Observations sur le droit intertemporal dans l’affaire de l’île de Kasikili/Sedudu (Botswana/Namibie)’ (2000) RGDIP 429, 441–2. 78 Further: Shaw, ‘Western Sahara’ (n 76), 153.

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if such a principle were to be applied to private law and private titles in national law.79 It is in this regard apposite to mention that the Tribunal in Island of Palmas probably took some inspiration from European national law, where the principle was already well developed.80 This seems to have been entirely overlooked by Jessup in his criticism. Rodger has explicated how in Germany the principle, or an early cognate, may be traced back to as early as in the end of the nineteenth century.81 Affolter dated it back to 1897, when the term ‘intertemporales Recht’ had been used to describe the law determining the period to which legislation applies.82 By 1908 at the latest it had, under the names ‘droit transitoire’ and ‘droit intertemporel’, made an appearance in French private law doctrine.83 Furthermore, the principle was highly developed in Swiss law;84 in fact the Swiss Civil Code of 1907, in Article 17 of its last chapter, codifies the principle.85 These examples seem to give the lie to Jessup’s argument that the result would have been chaos had the principle been imported into national law. The issue may have been under-researched in the common law, and that may go some way to explaining this lack of understanding of what, to Jessup, clearly seemed a very strange proposition indeed.86 The intertemporal law, like other branches of international law, ‘does not operate in a vacuum’; rather it operates with ‘relation to facts and in the context of a wider framework of legal rules of which it forms only a part’.87 The impact of the intertemporal law will be reduced by the effect of other principles of international law. These include the effect of recognition, acquiescence, and the rule that abandonment is not to be presumed.88 Such principles make it impossible for the second element of the principle to work injustices. An example of this may be found in Pedra Branca, where the historic title of the Sultanate of Johore to the disputed territories survived despite the fact that the Sultanate had exercised little or no governmental authority over them.89 Jessup, ‘Palmas Island Arbitration’ (n 20), 740. Tavernier, L’application dans le temps (n 6), 254. 81 A Rodger, ‘A Time for Everything under the Law: Some Reflections on Retrospectivity’ (2005) 121 LQR 57, 60–2. 82 FX Affolter, Geschichte des intertemporalen Privatrechts (Veit, 1902), 1. 83 M Popoviliev, ‘Le droit civil transitoire ou intertemporel (sa nature, sa règle générale et sa place dans la législation)’ (1908) 3 RTDC 462. 84 See Baade, ‘Intertemporales Völkerrecht’ (n 66), 242. 85 Article 17 of the last chapter of the Swiss civil code provides that: ‘1. Les droits réels existant lors de l’entrée en vigueur du code civil sont maintenus, sous réserve des règles concernant le registre foncier. 2. Si une exception n’est pas faite dans le présent code, l’étendue de la propriété et des autres droits réels est néanmoins régie par la loi nouvelle dès son entrée en vigueur. 3. Les droits réels dont la constitution n’est plus possible à teneur de la loi nouvelle continuent á être régis par la loi ancienne.’ 86 Rodger, ‘Reflections on Retrospectivity’ (n 81), 60–1. 87 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt [1980] ICJ Rep 73, 76 at [10]. 88 Crawford, Brownlie’s Principles of Public International Law (n 20), 218–19. 89 Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/ Singapore) (n 5). Also: TO Elias, ‘The Doctrine of Intertemporal Law’ (1980) 74 AJIL 285, 286–7; I Brownlie, Principles of Public International Law (2nd edn, Oxford University Press, 1973), 132–3. 79

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4.2.5 The difficulties of intertemporality: its best defence? The principle of the Island of Palmas rule has become an article of faith in international law. Yet the chaos foreshadowed by Jessup seems somehow not to have come to pass. But the success of the principle is also precisely the fact that it reflects the evolution of law. Lowe has made the point that we should not be surprised that states follow international law, for it is the states themselves who will have made the law which they are following. The reason why states do comply, and always have complied, with international law is that they make the rules to suit themselves.90 That which is seen by some as the very problem of the intertemporal rule is in fact its saving grace. We should not forget that the jurist who, while he in no way invented it, brought the intertemporal law into the waft and weave of international law was himself known for his sociological approach to law. The author of Die soziologischen Grundlagen des Völkerrechts,91 Huber took a view of international law which in no way was blind to what states actually do. This is a point of some significance. When the system of territorial title internationally has not collapsed as a result of the adoption by international law of the principle of intertemporality that is partly because the changing requirements of the law with which the rights ‘must be kept up in accordance’,92 will be a reflection of the development of state practice. It bears repeating, therefore, that the principle on which the Island of Palmas Tribunal based its decision had, in material terms, been codified by the world powers in the General Act of the Berlin Conference,93 and later reiterated in the Convention of St Germain-en-Laye.94 Article 10 of the Convention of Saint-Germain provided that: ‘les Hautes Parties contractantes reconnaissant l’obligation de maintenir, dans les régions relevant de le leur autorité, l’existence d’un pouvoir et des moyens de police suffisants pour assurer la protection des personnes et des bien et, le cas échéant, la liberté du commerce et du transit’.95 It seems important to point out, however, that it is not the case that all territories acquired by way of methods now deemed unacceptable should be taken away from the states in issue. In most cases, such as those where title was acquired by conquest, the latter-day criterion of effective occupation will anyway later be fulfilled. This ties in with the sociological point: it is no surprise that states should in fact be acting in conformity with a rule which flows from state practice.

90 See AV Lowe, International Law (Oxford University Press, 2007), 19. Also: T Bingham, The Rule of Law (Allen Lane, 2010), 113. 91 M Huber, Die soziologischen Grundlagen des Völkerrechts (Verlag für Recht und Gesellschaft, 1928). Further: J Delbrück, ‘Max Huber’s Sociological Approach to International Law Revisited’ (2007) 18 EJIL 97, 102–10; O Spiermann, ‘Judge Max Huber at the Permanent Court of International Justice’ (2007) 18 EJIL 115, 116–19. 92 Fitzmaurice, ‘Law and Procedure 1951–54’ (n 26). 93 General Act of the Berlin Conference regarding Africa, 26 February 1885, Martens Nouveau Recueil (Series 2) Vol 10, 409. 94 Convention of St Germain-en-Laye 10 September 1919 226 CTS 186. 95 Rousseau, Principes généraux I (n 3), 32–3.

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These points, examined in further detail below, seem to bear out the correctness, in normative terms, of the principle of intertemporal law. The same conclusions may be drawn from the vicissitudes to be found in international jurisprudence and doctrine. The issues are there sometimes simplified but, as Rodger has pointed out, the time-related matters which in their bearing on the law seem at first so simple may on further examination prove to be very difficult indeed.96

4.2.6 The vicissitudes of international jurisprudence Sometimes, not least in cases where the Tribunal seems to have been unaware of the principle of intertemporality, one can detect a tendency in the argument of the Tribunal away from the ‘old law’ in direction surreptitiously of the ‘new law’. Four classic examples, and one modern one from the jurisprudence of the International Court, seem to bear this proposition out. First, in Clipperton the Tribunal, while not saying that it would apply the second limb of the principle of intertemporal law, went very far in construing the old law in conformity with the new law.97 Thus the Tribunal set a high bar when it came to how effective the occupation of the territory in question had to be, a test which it seems was much closer to the law as it had developed ex post facto than the law that had in fact applied at the time.98 A similar slippage from old to new law may be observed, secondly, in Veloz-Mariana.99 In this case the arbitrator, King William III of the Netherlands, applied the new law of seizure, which took shape only in the 1850s,100 to an exercise of the claimed right to prize by France in 1823 against merchant Spanish ships in belligerent ports. This was not done with any reference to how new law would govern the old facts; all the Tribunal said was that it must be so ‘d’après le droit des gens’.101 Thirdly, the same could be said of the arbitral award in the 1875 Delagoa Bay between the United Kingdom and Portugal. The arbitrator, French President de MacMahon, said that Delagoa Bay ‘a été découverte au 16ème siècle par les navigateurs Portugais’; ‘au 17ème et 18ème le Portugal a occupé divers points sur la côte nord de cette baie’.102 It was, in the fifteenth and sixteenth centuries, sufficient in

Rodger, ‘Reflections on Retrospectivity’ (n 81), 60–2. Island of Clipperton (Mexico v France) (1931) 2 RIAA 1105. 98 Cf Krause-Ablaß, Intertemporales Völkerrecht (n 6), 88. 99 Veloz-Mariana in H La Fontaine, Pasicrisie internationale: histoire documentaire des arbitrages internationaux (Stämpfli, 1902), 26. Further: G Schwarzenberger, International Law I (Stevens and Sons, 1957), 21–4; Krause-Ablaß, Intertemporales Völkerrecht (n 6), 96; L Cavaré, Le droit international public positif II (3rd edn, Pedone, 1969), 292–3. 100 Rousseau, Principes généraux I (n 3), 504. 101 H la Fontaine, Pasicrisie internationale: histoire documentaire des arbitrages internationaux (Stämpfli, 1902), 26, 28. Also: Portendick (1843), in A de Lapradelle and N Politis, Recueil des arbitrages internationaux I (Pedone, 1905), 530–1, where in a similar case the new law was dressed up as old and applied by the Tribunal. Further: Cavaré, Droit international public positif II (n 99), 292. 102 Sentence arbitrale relative aux requêtes de la Grande-Bretagne et du Portugal (Baie de Delagoa ou Lorenzo Marques) (1875) 28 RIAA 157, 160. 96 97

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respect of the acquisition of sovereignty over an area to discover it. It is plain, however, that the arbitrator did not stop at noting that Portugal had been the first to discover the bay. The arbitrator proceeded on the assumption that it was not enough merely to have discovered the bay. He explained how: depuis la découverte, le Portugal a, en tout temps, revendiqué des droits de souveraineté sur la totalité de la baie et des territoires riverains, ainsi que les droits de souveraineté sur la totalité de la baie et des territoires riverains, ainsi que le droit exclusif d’y faire le commerce; que, de plus, il a appuyé à main armée cette revendication contre les Hollandais vers 1732, et contre les Autrichiens en 1781.

This way of conceptualizing the acquisition of sovereignty was a very modern one; in the sixteenth century discovery conferred absolute title to territory.103 Fourthly, in the Guiana Boundary Case,104 the Tribunal took into account the exigencies of the evolution of law, with a very heavy thumb on the scale in favour of evolution. The arbitrator, King Victor Emmanuel of Italy, had been requested to investigate the extent of the territory which was at the time claimed by both of the parties, and to determine the boundary line between British Guiana and Brazil. The arbitrator applied the modern doctrine of effective occupation with regard to titles arising in a period when this doctrine plainly had not been recognized. He considered that the occupation could not be held to be carried out except by: effective, uninterrupted, and permanent possession being taken in the name of the State, and that a single affirmation of rights of sovereignty or a manifest intention to render the occupation effective cannot suffice.105

The award was criticized by Basdevant for having exhibited ‘un certain désir de quitter le terrain du droit pour arriver à celui de l’équité et de l’amiable composition’.106 Fauchille took issue with the arbitrator for having committed an error of law, as the arbitral award had, in his view, applied to facts dating back to the eighteenth and the beginning of the nineteenth-century principles of law which had been proclaimed only in 1885 by the Conference of Berlin.107 The same surreptitious slippage from old to new law may be observed in modern international jurisprudence. The International Court in Kasikili/Sedudu108 had to interpret an 1890 treaty109 between Germany and the United Kingdom, the foundation of the rights of Botswana and Namibia as successor states, that fixed the spheres of influence in Africa of Germany and the United Kingdom as colonial powers. Article III delimited ‘the sphere in which the exercise of influence is reserved to Germany’ to the east by a line which ‘descends the centre of the main 103 M Holm-Hadulla, ‘Delagoa Bay Arbitration’ in R Wolfrum (ed), The Max Planck Encyclopedia of International Law (Oxford University Press, 2007) at [5]‌. 104 Guiana Boundary (Brazil/Great Britain) (1904) 11 RIAA 11. 105 Guiana Boundary (Brazil/Great Britain) (n 104), 21–2. 106 Basdevant, ‘Efficacité des Règles générales’ (n 56), 536. 107 P Fauchille, ‘Le conflit de limites entre le Brésil et la Grande-Bretagne et la sentence arbitrale du roi d’Italie’ (1905) 7 RGDIP 25. 108 Kasikili/Sedudu Island (Botswana/Namibia) (Judgment) [1999] ICJ Rep 1045. 109 Anglo–German Treaty, 1 July 1890, 173 CTS 271.

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channel’ of the river Chobe ‘to its junction with the Zambezi, where it terminates’. The German version of the treaty said that the line ‘setzt sich dann im Thalweg des Hauptlaufes dieses Flusses fort’. The Court noted that ‘at the time of the conclusion of the 1890 Treaty, it may be that the terms “centre of the [main] channel” and “Thalweg” des Haputlaufes were used interchangeably’.110 It went on to hold that ‘although, as explained above the parties in 1890 used the terms “thalweg” and “centre of the channel” interchangeably, the former reflects more accurately the common intention to exploit navigation than does the latter. Accordingly, this is the term that the Court will consider determinative’.111 The boundary thus followed the line of deepest soundings in the northern channel around the Kasikili/Sedudu Island. The authors who have studied the meaning of the concept of thalweg in the nineteenth and twentieth centuries have, however, underlined the considerable uncertainty that obtained as to its content.112 Namibia in this vein insisted that there was not in general international law in 1890 a principle according to which river frontiers followed the thalweg. This the Court did not take into account, choosing instead to have recourse to the definitions of the thalweg which had crystallized after the 1890s. The judgment has been criticized by Tavernier for its unwillingness to look seriously at the intertemporal issues to which the interpretation of the treaty gave rise, by in fact, and without any explanation, applying the modern concept of thalweg to the 1890 treaty.113 These examples seem to go some way in showing the wisdom of that which Justice Brennan once said with respect to interpretation of the US Constitution: ‘We current Justices read the Constitution in the only way that we can: as Twentieth Century Americans.’114 Arbitrators and international judges, in spite of their best efforts to the contrary, also have difficulty stepping back in time. This of course has cogent reasons, and could only with difficulty be criticized. This leads us to an important conclusion in regard to the soundness of the application of the principle of intertemporality. On this background, a plea for a two-limbed principle of intertemporality becomes something like a plea for transparency in international adjudication, and in fact also an argument for predictability. Seeing as international courts and tribunals tend to apply modern conceptions of law, or apply an old law which looks very much like the new law, when on their own admission they are simply applying the old law, then surely the solution in Island of Palmas, with its attendant complexities, is preferable, if for no other reason than that it leads to a more transparent form of international adjudication. Kasikili/Sedudu Island (Botswana/Namibia) (Judgment) (n 108), 1062 at [25]. Kasikili/Sedudu Island (Botswana/Namibia) (Judgment) (n 108), 1100–1 at [89]. 112 P La Pradelle, La frontière: étude de droit international (Les Éditions internationals, 1928); E Lauterpacht, ‘River Boundaries: Legal Aspects of the Shatt-al-Arab Frontier’ (1960) 9 ICLQ 208; P Tavernier, ‘Le conflit frontalier entre l’Irak et l’Iran et la guerre du Chatt-el-Arab’ [1981] Arès Défense et Sécurité 333, 341; F Schroetter, ‘Les systèmes de delimitation dans les fleuves internationaux’ (1992) 38 AFDI 948, 959–64. Also: Banks of Grisbadarna (Sweden v Norway) (n 37), 159. 113 Tavernier, ‘Observations sur le droit intertemporal’ (n 77), 437–43. 114 WJ Brennan, ‘Constitutional Interpretation’, speech to the Text and Teaching Symposium, Georgetown University, 12 October 1985. 110 111

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Another type of criticism needs to be made here of Iron Rhine,115 where intertemporal law featured prominently. The contentious issue in this case was the allocation of costs of modernization of a railway. Article XII of a treaty of 1839116 referred to costs and expenses of ‘une nouvelle route’ or ‘un nouveau canal’—which terms were later to include the railway in question—from Belgium across the Netherlands. The Tribunal made clear that according to Article 31(3)(c) of the VCLT117 ‘any relevant rules of international law applicable in the relations between the parties’ must be taken into consideration. ‘The intertemporal rule would seem to be one such “relevant rule” ’, the Tribunal said.118 The Tribunal only really took account at this stage of the first element of the intertemporal principle: ‘a juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when a dispute in regard to it arises or falls to be settled’.119 Following this the Tribunal must have regard in interpreting Article XII to juridical facts as they stood at the time of the conclusion of the treaty in issue. The Tribunal must, however, not be ‘oblivious either to later facts that bear on the effective application of the treaty, nor indeed to all later legal developments’.120 The Tribunal affirmed the rule that some terms are not static but by definition evolutionary. In the present case a conceptual or generic term was not in issue; it was something else—effectiveness in terms of the object and purpose of the treaty—which led the Tribunal to adopt an evolutionary interpretation.121 The question of how exactly to square evolutionary interpretation with the rule of intertemporality has, perhaps due to the intrinsic difficulties of the Island of Palmas rule, proved evasive. It has been argued that evolutionary interpretation is an exception to Huber’s rule. Thus the Tribunal in the Iron Rhine case held that: In the present case it is not a conceptual or generic term that is in issue, but rather new technical developments relating to the operation and capacity of the railway. But here, too, it seems that an evolutive interpretation, which would ensure an application of the treaty that would be effective in terms of its object and purpose, will be preferred to a strict application of the intertemporal rule.122

The approach of the Tribunal in Iron Rhine has been echoed in international doctrine, where several authors have taken the same view as did the Iron Rhine arbitrators. Tavernier has pointed out that it is no rare occurrence that publicists only refer to one of the two rules of the principle of intertemporality.123 115 Award in the Arbitration regarding the Iron Rhine (‘Ijzeren Rijn’) Railway between the Kingdom of Belgium and the Kingdom of the Netherlands (2005) 27 RIAA 35. 116 Treaty between the Kingdom of the Netherlands and Belgium relative to the Separation of their Respective Territories, 19 April 1839, 88 CTS 427. 117 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331; (1969) 8 ILM 679. 118 Iron Rhine (n 115), 72–3 at [79]. 119 Island of Palmas (Netherlands v United States) (n 19), 845. Also: Gardiner, Treaty Interpretation (n 14), 277. 120 Iron Rhine (n 115), 72–3 at [79]. 121 See Ch 3. 122 Iron Rhine (n 115), 73 at [80] (emphasis added). 123 P Tavernier, ‘Relevance of the Intertemporal Law’ in J Crawford, A Pellet, and S Olleson (eds), The Law of International Responsibility (Oxford University Press, 2010), 397.

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4.2.7 The vicissitudes of doctrine Thus even as eminent a jurist as de Visscher sees the principle of intertemporal law only in terms of its first limb.124 Higgins, former President of the International Court and no less an authoritative voice, too, sees matters in this light: evolutionary interpretation in her view goes against the grain of the principle of intertemporality. There are, she explains, good reasons for thinking that treaties which guarantee human rights—both those which do so expressly or as an incident of their subject matter—are an exception so far as intertemporal law is concerned: ‘The intertemporal principle of international law, as it is commonly understood, does not apply in the interpretation of human rights obligations.’125 The same point is made by Fife, who extends the perceived exception also to constitutional treaties: in his view the interpretation of territorial treaties must be conducted in accordance with the old law whereas what he sees as this kind of intertemporal limitation ‘ne seraient pas pertinents dans d’autres domaines, comme le droit des organisations internationales ou des droits de l’homme’.126 And one may indeed wonder whether it would not be to get the matter entirely wrong to state, as it has been done, that: In his award in the leading case of the Island of Palmas, the single arbitrator, Max Huber, in deciding whether a state has established its claim to territory, stated that one must assess the facts in the light of the international law at the relevant time, not the law at the time the issue falls to be decided. He therefore had to decide whether in the early sixteenth century the mere discovery by Spain of the 2.4 sq km island was sufficient to give it good title then.127

It has been argued that the same tendency can be traced in the work of the International Law Commission (ILC) on state responsibility.128 The ILC Commentary on the Draft Articles on State Responsibility to Article 13 of the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA), which provides that: ‘An act of a State does not constitute a breach of an international obligation unless the State is bound by the obligation in question at the time the act occurs’, states that the Article ‘is but the application in the field of State responsibility of the general principle of intertemporal law, as stated by Judge Huber in another context in the Island of Palmas case’. The ILC Commentary concludes that ‘it is appropriate to apply the intertemporal principle’—by which the ILC clearly means only the first limb of the principle—‘to all international obligations, and article 13 is general in its application’.129 This, as Tavernier has observed, reflects a

124 C de Visscher, Problèmes d’ interprétation judiciaire en droit international public (Pedone, 1963), 66–9. 125 R Higgins, ‘Time and the Law: International Perspectives on an Old Problem’ (1997) 46 ICLQ 501, 517. 126 RE Fife, ‘L’objet et le but du traité de Spitsberg (Svalbard) et le droit de la mer’ in La mer et son droit: mélanges offerts à Laurent Lucchini et Jean-Pierre Quéneudec (Pedone, 2003), 251. 127 A Aust, Handbook of International Law (2nd edn, Cambridge University Press, 2010), 35. 128 See Tavernier, ‘Relevance of the Intertemporal Law’ (n 123), 396–400. 129 ILC Ybk 2001/II(2), 58 at [6]‌.

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restrictive understanding of the principle of intertemporal law.130 As Crawford has explained,131 the understanding of the intertemporal law relied on by the ILC is subject to qualification, by reason of, first, retrospective acceptance of responsibility on the part of the state itself; secondly, evolutionary interpretation of treaties;132 and, thirdly, the emergence of new peremptory norms.133

4.2.8 Conclusion It may be so difficult to grasp the spirit of the past that at times international tribunals have failed to understand and to apply the old law, instead dressing up contemporaneous law as old and applying that in lieu of the old one. This leaps from the pages of international law reports. The double helix of intertemporality recognizes that it is very difficult, when one is interpreting a treaty, not to view it from the perspective of the time of interpretation.134 This is one reason why application in international arbitration of the two limbs of the principle from Island of Palmas may lead to more transparency and in the final analysis also more predictability. The principle of intertemporality seems to have been designed to govern a situation in which the necessary stability in relations between states is to be preserved, while at the same time the necessity for evolution in those relations and in the law regulating them is recognized. There is no real antithesis between the first and second element, and the more we have regard to this consideration the better we can appreciate the delicate balance aimed at in the formulation of the doctrine as now generally accepted. For the double helix of intertemporality is a delicate one. The analysis above, however, commands the conclusion that the solution reached in Island of Palmas is the best proffered yet.

4.3 Jus Cogens Superveniens: Peremptory Norms and Time As was seen in the preceding chapter, the VCLT135 contains no general provision on intertemporal law. It does, however, contain an indirect reference to the intertemporal rule in its codification of the relation between peremptory norms of international law and the law of treaties, in Articles 53 and 64 of the Convention.136 Articles 53 and 64 codify the international regime regulating jus cogens superveniens, that is, the appearance of new jus cogens rules through the evolution of peremptory rules of international law. Virally observed that peremptory norms of international law are liable to change and that jus cogens ‘[ne] constitue pas, par conséquent, du droit naturel. Il évolue en Tavernier, ‘Relevance of the Intertemporal Law’ (n 123), 402. Crawford, State Responsibility: The General Part (n 20), 245–51 132 133 ILC Ybk 2001/II(2), 59 at [9]‌. ILC Ybk 2001/II(2), 58 at [5]‌. 134 Greig, Intertemporality and the Law of Treaties (n 17), 138. 135 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, (1969) 8 ILM 679. 136 Crawford, State Responsibility: The General Part (n 20), 250–1. 130 131

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function des transformations de la situation socio-historique de la société internationale et des modifications intervenues dans les conceptions politiques, éthiques, philosophiques, idéologiques qui s’y rapportent’.137 If jus cogens constitutes the bedrock of the international legal order,138 or in a sense an international constitution,139 then surely this constitutional backdrop is pertinent to the understanding of intertemporal law and evolutionary interpretation. Article 53 provides that ‘a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law’. It continues: ‘For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.’ Article 64, entitled ‘Emergence of a new peremptory norm of general international law (“jus cogens”)’, is in the following terms: ‘If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.’140 As the ILC said of what would become Article 64: ‘The rule formulated in this article is the logical corollary of the rule in article [53] under which a treaty is void if it conflicts with a “peremptory norm of general international law from which no derogation is permitted”.’141 The ILC continued: ‘if a new rule of that character—a new rule of jus cogens—emerges, its effect must be to render void not only future but existing treaties’; ‘this follows from the fact that a rule of jus cogens is an over-riding rule’ depriving of legality any act or situation with which it is in conflict.142 In the situation envisaged in Article 64 the peremptory norm did not previously exist, or it modified an already existing norm of the same type.143 On the relationship between this rule and intertemporality, the ILC said: Although the rule operates to deprive the treaty of validity, its effect is not to render it void ab initio, but only from the date when the new rule of jus cogens is established; in other words it does not annul the treaty, it forbids its further existence and performance. It is for this reason that the article provides that ‘If a new peremptory norm of general international law . . . is established’, a treaty becomes void and terminates.144

M Virally, ‘Réflexions sur le Jus cogens’ (1966) 12 AFDI 5, 15–16. K Zemanek, ‘The Metamorphosis of Jus Cogens: From an Institution of Treaty Law to the Bedrock of the International Legal Order?’ in E Cannizzaro (ed), The Law of Treaties Beyond the Vienna Convention (Oxford University Press, 2011), 381. 139 R Kolb, ‘Théorie du ius cogens international’ (2003) 36 RBDI 5, 8. 140 See Crawford, State Responsibility: The General Part (n 20), 250–1; H Ruiz Fabri ‘Article 66’ in O Corten and P Klein (eds), The Vienna Convention on the Law of Treaties: A Commentary (Oxford University Press, 2011), 1527–8. 141 ILC Ybk 1966/II, 261. 142 ILC Ybk 1966/II, 261. 143 M Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Brill, 2009), 793. 144 ILC Ybk 1966/II, 261. 137

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The ILC continued by emphasizing that ‘a rule of jus cogens does not have retroactive effects and does not deprive any existing treaty of its validity prior to the establishment of that rule as a rule of jus cogens’.145 The parties are released ex nunc from any obligation to perform the treaty further, whereas any rights, obligations, or situations having previously arisen may be maintained. Yasseen explained this by saying that ‘the States had not done anything wrong in concluding the treaty; consequently, if a new peremptory rule subsequently emerged which conflicted with the treaty, the treaty could not be void ab initio’.146 The provisions in the VCLT which deal with the effects of the jus cogens thus fit comfortably into the scheme of the intertemporal law as explained by the arbitrator in the Island of Palmas case: ‘a juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when a dispute arises or falls to be settled’.147 Taken in context, however, the passage just cited cannot be interpreted in this way. The juridical fact to which the arbitrator in Island of Palmas was referring was the act of discovery so that the question was whether, at the time of the alleged discovery of the island by Spain in the early part of the sixteenth century, discovery alone created territorial sovereignty over the island. The limited scope of the passage is also borne out by the arbitrator’s subsequent pronouncement in which he made clear that changes in the law were not excluded from consideration: The same principle which subjects the act creative of a right to the law in force at the time the right arises, demands that the existence of the right, in other words its continued manifestation, shall follow the conditions required by the evolution of the law.148

These two strains—contemporaneity and evolution—we find in Articles 53 and 64 of the VCLT. This is in keeping with the second aspect of the intertemporal law, namely that ‘the existence of the right’, in this case the treaty, ‘in other words, its continued . . . [validity] shall follow the conditions required by the evolution of the law’.149 This was brought out during the ILC debates on the VCLT by Rosenne, who observed that the rules which the ILC were promulgating were ‘covered by the general rules of the inter-temporal law in its application to the interpretation of treaties’.150 It is true that jus cogens had, at the time when Articles 53 and 64 were introduced into the VCLT, been subject to much controversy in the past.151 In the face of this 145 ILC Ybk 1966/II, 261. The Commission went on: ‘The present article underlines that point since it deals with the effect of the emergence of a new rule of jus cogens on the validity of a treaty as a case of the termination of the treaty. The point is further underlined by article 67 which limits the consequences of the termination of a treaty by reason of invalidity attaching to it under the present article to the period after the establishment of the new rule of jus cogens.’ 146 ILC Ybk 1966/I, 87. 147 Island of Palmas (Netherlands v United States) (n 19), 839. See Chs 4.1–4.2 above. 148 ILC Ybk 1966/I, 87. 149 Island of Palmas (Netherlands v United States) (n 19), 845. 150 ILC Ybk 1966/I, 89. 151 G Schwarzenberger, ‘The Problem of Interational Public Policy’ (1965) CLP 191; C Rousseau, Droit international public volume I (Dalloz, 1970), 149.

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opposition the ILC and a large majority of states deemed the rule unquestionable.152 The ILC concluded: The view that in the last analysis there is no rule of international law from which States cannot at their own free will contract out has become increasingly difficult to sustain, although some jurists deny the existence of any rules of jus cogens in international law, since in their view even the most general rules still fall short of being universal. . . . Accordingly, the Commission concluded that in codifying the law of treaties it must start from the basis that today there are certain rules from which States are not competent to derogate at all by a treaty arrangement, and which may be changed only by another rule of the same character.153

Articles 53 and 64 of the VCLT establish special rules of conflict applicable in the relationship between treaties and jus cogens rules. Treaties conflicting with a prior jus cogens rule are invalid; treaties conflicting with a rule of jus cogens that emerges after their conclusion terminate. It is well established that the mere existence of a conflict triggers the normative consequences envisaged by these provisions, regardless of whether the treaty has been implemented, and regardless of whether an actual breach of a jus cogens rule has occurred.154 Jus cogens has, as the VCLT shows, a close connection to intertemporal law. The adoption of Article 64 expressed ‘the dynamic and evolutive character of peremptory norms in international law, as it envisaged the possibility to see the new norms of this nature develop in future’.155 Jiménez de Aréchaga brought out the evolutionary element of jus cogens by stating that: ‘the concept of jus cogens represents a signal achievement from both a scientific and practical point of view. It introduces into international law a dynamic concept, capable of future development and a new perspective.’156 It is worth noting that, whether one looks to the doctrine or statements by states, one finds virtually no opposition to the evolving nature of jus cogens norms. The evolutionary character of jus cogens seems to be unanimously accepted.157 Yasseen made the point that peremptory norms of international law were capable of evolution: the draft article which would become Article 64 of the VCLT ‘was necessary because it emphasized that jus cogens was not immutable and that the concept of public order must be free to evolve’.158 The ILC in its work on the Draft Articles on State Responsibility, too, referred to the evolutionary nature of peremptory norms in international law.159 152 A Lagerwall, ‘Article 64: Emergence of a new peremptory norm of general international law (“jus cogens”)’ in O Corten and P Klein (eds), The Vienna Convention on the Law of Treaties: A Commentary (Oxford University Press, 2011), 1456. 153 ILC Ybk 1966/II, 247. 154 E Cannizzaro, ‘A Higher Law for Treaties?’ in E Cannizzaro (ed), The Law of Treaties Beyond the Vienna Convention (Oxford University Press, 2011), 425. 155 Lagerwall, ‘Article 64’ (n 152), 1457. 156 E Jiménez de Aréchaga, ‘International Law in the Past Third of a Century’ (1978) 159 Hague Recueil 1, 66. 157 Crawford, State Responsibility: The General Part (n 20), 250–1. 158 ILC Ybk 1966/I, 63. 159 Commentary on Article 26 of the Draft Articles on State Responsibility of States, Report of the ILC to the General Assembly on the work of its fifty-sixth session, A/56/10.

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Unsurprisingly, state practice on the rule established in Article 64 is relatively sparse.160 Sparseness in itself does not, however, undermine the principle codified by the ILC in Article 64. The ILC’s function is not simply to record practice and to adopt sparse articles where the practice is sparse. The ILC’s function, generally, is to rationalize the law and to expose its underlying structures and values for international scrutiny.161 In such cases where the issue has actually come to the fore, international courts and tribunals have supported the ILC’s solution in Article 64 VCLT. Whilst it has become customary to say that there are to date no reported instances of this provision being invoked before a Tribunal to invalidate a treaty contravening a norm of peremptory norms of international law having emerged subsequent to the treaty’s conclusion,162 this is not entirely correct. While there certainly exist cases where conceivably the issue could have come to a head but it did not,163 jurisprudence also exists where the issue was dealt with foursquare, such as the judgment by the Inter-American Court of Human Rights in Aloeboetoe.164 The Inter-American Court was seized of a case bearing on reparations payments due by Suriname to members of the Saramaka tribe. For this the Court had to ascertain family structures in the Saramaka tribe so that proper compensation could be given to relatives. The Inter-American Commission had, in its treatment of the case, urged that this decision be made with reference to the customs of the Saramaka tribe, whereas Suriname requested that Surinamese civil law be applied. In order to prove the internal autonomy of the tribe the Commission had applied a treaty from 1762,165 which gave the Saramakas permission to be granted by their own laws. The Commission also held that the Saramakas ‘acquired their rights on the basis of a treaty entered into with the Netherlands, which recognizes, among other things, the local authority of the Saramaka over their own territory’. The text of the treaty is attached to the brief in question, which adds that ‘the obligations of the treaty are applicable, by succession, to the state of Suriname’.166 To this the Inter-American Court said: The Court does not deem it necessary to investigate whether or not that agreement is an international treaty. Suffice it to say that even if that were the case, the treaty would today be null and void because it contradicts the norms of jus cogens superveniens. In point of fact, under that treaty the Saramakas undertake to, among other things, capture any slaves that have deserted, take them prisoner and return them to the Governor of Suriname, who will pay from 10 to 50 florins per slave, depending on the distance of the place where they were apprehended. Another article empowers the Saramakas to sell to Lagerwall, ‘Article 64’ (n 152), 1458. Verbatim Record, 21 March 2014, CR 2014/21, 28 at [56] (Mr Crawford on behalf of Croatia). 162 A Aust, Modern Treaty Law and Practice (3rd edn, Cambridge University Press, 2013), 279. 163 See Case Concerning the Delimitation of Maritime Boundary between Guinea-Bissau and Senegal (1989) 20 RIAA 119; Kuwait v American Independent Oil Co (AMINOIL) (1982) 66 ILR 518, 588–9. 164 Aloeboetoe et al, judgment 10 September 1993, Series C No 15.I/A. Further: Lowe, International Law (n 90), 77. 165 JJ Hartsinck, Beschryving van Guianan (Tielenburg, 1770), 802–9. 166 Aloeboetoe (n 164) at [56]. 160 161

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the Dutch any other prisoners they might take, as slaves. No treaty of that nature may be invoked before an international human rights tribunal.167

It could be added that no treaty of such a nature may be invoked, and successfully relied on, before any Tribunal. The Court refused to apply the 1762 treaty despite the fact that the impugned clauses could be separated from the clauses relating to family law; it could thus be said that the Court took what has been called the non-severability view of a treaty voided by jus cogens superveniens.168 The ILC in the preparatory work of Article 64 of the VCLT addressed one example only of jus cogens superveniens. According to Waldock, ‘the nineteenth-century conventions for regulating the slave trade were an obvious example of treaties which were valid when drawn up but subsequently became void by the development of a new rule of international law prohibiting the slave trade altogether’.169 This development in favour of prohibiting slavery had resulted in the signature on 2 July 1890 of the General Act of Brussels, which condemned slavery. It is plain enough that though the Act itself may not be considered as the source of a new jus cogens rule that prohibited slavery, it can very well be seen as the expression of an agreement reinforcing the progressively established adherence to such a ban and to its peremptory character.170 It is important to remember that the preamble of the Act said that the parties wished to: give fresh sanction to the decisions already adopted in the same sense and at different times by the Powers, to complete the results secured by them, and to draw up a body of measures guaranteeing the accomplishment of the work which is the object of their common solicitude.171

Article 96 itself went so far as to provide that ‘the present general act repeals all contrary stipulations of conventions previously concluded between the signatory powers’. Lauterpacht took the view that the norm of jus cogens superveniens regarding slavery would render null and void treaties bearing on slave trade.172 Here Lauterpacht was basing himself on Lammasch, who already in1913 had argued the same in relation to what today we would call jus cogens interveniens: Should . . . the changes of views be so far-reaching that an international tribunal should be tasked with rendering judgment that at the time would seem positively contrary to public morals, for example to recognize slave trade as an acceptable commercial enterprise . . . then the tribunal is authorised not to apply this principle, and to follow instead equity or a higher legal principle.173 Aloeboetoe (n 164), at [57]. A Orakhelashvili, Peremptory Norms in International Law (Oxford University Press, 2006),

167

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154.

ILC Ybk 1963/I, 78. 170 Lagerwall, ‘Article 64’ (n 152), 1459. Declaration of the General Act of the Brussels Conference, 2 July 1890, 173 CTS 188. 172 H Lauterpacht, The Function of Law in the International Community (Clarendon Press, 1933), 284–5. 173 Lammasch, Schiedsgerichtsbarkeit (n 2), 179: ‘Würde jedoch die Wandlung der Anschauungen eine so tiefgreifende sein, daß dadurch das Schiedsgericht gezwungen wäre, eine Entscheidung zu treffen, die jetzt als geradezu unsittlich erschiene, z. B. den Sklavenhandel als eine berechtigte kommerzielle Unternehmung anzuerkennen, für deren Störung Schadenersatz geleistet werden müßte, dann ist das Schiedsgericht befugt, von jenem Grundsatze abzugehen und der Billigheit 169 171

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Lammasch found support for this in state practice. The Franco–German Compromis of 1880 is an early example in that regard. It explicitly said that no claim or item of injury or damages based on the loss or emancipation of slaves should be examined by the Commission set up by the compromis: The said Commission, thus constituted, shall have the right and duty of deciding upon all claims having the character indicated above, presented by the citizens of each of the two countries, except those which either Government shall have caused to be settled diplomatically, judicially or otherwise by competent authorities. But no claim or item of injury or damages based on the loss or emancipation of slaves shall be examined by the said Commission.

This Lammasch correctly identified as an early confirmation of the rule today referred to as jus cogens superveniens.174

4.4 Conclusion It can be concluded that the provisions in the VCLT175 dealing with the effects of the jus cogens fit comfortably into the scheme of the intertemporal law. These constitutional rules of international law confirm and lend credence to the rule of intertemporal law. Both contemporaneity and evolution are contained in the rules codified in Articles 53 and 64. That which the ILC codified was indeed ‘covered by the general rules of the inter-temporal law in its application to the interpretation of treaties’.176 More broadly, as will have been seen, the intertemporal law has consequences for treaty interpretation. There are times when—as the International Court determined in Aegean Sea, paraphrasing Island of Palmas—the intentions of the parties leads one to the conclusion that the interpretation of the treaty must ‘follow the evolution of the law and to correspond with the meaning attached to the expression by the law in force at any given time’.177

oder einem höheren Rechtsbegriffe folgend, das zurzeit der Streitentstehung geltende Recht außer acht zu lassen.’ 174 Lammasch, Schiedsgerichtsbarkeit (n 2), 179. Also: WM Reisman, ‘Termination of the USSR’s Treaty Right of Intervention in Iran’ (1980) 74 AJIL 144. 175 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, (1969) 8 ILM 679. 176 ILC Ybk 1966/I, 89. 177 Aegean Sea Continental Shelf (Greece v Turkey) (Judgment) [1978] ICJ Rep 3, 32 at [77]. Also: H Waldock, ‘The Evolution of Human Rights Concepts and the Application of the European Convention on Human Rights’ in Mélanges offerts à Paul Reuter—Le droit international: unité et diversité (Pedone, 1981), 538–9.

5 Evolutionary Interpretation, Or Not? Evolutionary Interpretation and Jurisdiction Ratione Temporis ‘You can’t help people being right for the wrong reasons.’ —A Koestler, ‘The Seven Deadly Fallacies’ in The Trail of the Dinosaur and Other Essays (Macmillan, 1955), 50

5.1 Introduction The European Court of Human Rights for many years adopted a more restrictive jurisprudence on jurisdiction ratione temporis than the International Court of Justice and its predecessor the Permanent Court of International Justice. This restrictive jurisprudence resulted in an impasse, where applicants before the European Court received short shrift in cases in which, other things being equal, under general international law a Tribunal would have found jurisdiction. This was resolved in the judgment of the European Court’s Grand Chamber in Šilih v Slovenia.1 The jurisprudence of the European Court was in this case, at least with regard to Article 2 of the European Convention on Human Rights,2 brought in line with the doctrine of the International Court. As this chapter aims to bear out, however, the solution which the European Court found in Šilih has created a number of problems. These are all problems that could have been obviated had the European Court taken more seriously the ratione temporis doctrine of the International and the Permanent Court. It is convenient to begin by analysing, in Chapter 5.2, what the European Court said in Šilih, as well as in the jurisprudence anterior to that case. Since the Grand Chamber of the European Court explicitly cited and made use in Šilih of the doctrine of the International Court it is convenient to touch on some aspects of the general doctrine. Then the test found in the jurisprudence of the Permanent and the International Courts is presented and analysed. One of the problems Šilih has Šilih v Slovenia App No 71463/01, judgment [GC] of 9 April 2009. Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 222. 1 2

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left in its wake was felt by the UK Supreme Court in McCaughey.3 The aim is to show how the European Court failed properly to apply the general doctrine, and that the ‘evolutionary interpretation’ arrived at by the European Court in Šilih was wholly redundant.

5.2 Jurisdiction Ratione Temporis in the European Court of Human Rights Moldovan v Romania4 and Jovanovic v Croatia5 bring out what was for a long time the approach of the European Court to jurisdiction ratione temporis. The applicants in Moldovan had sought to invoke, inter alia, the procedural obligation under Article 2(1) of the Convention: Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

They alleged various deficiencies in the investigations into a 1993 Roma village pogrom, which had resulted in a number of deaths and wanton destruction of property. Romania had acceded to the European Convention on 20 June 1994. Investigations into the pogrom, and the proceedings arising out of it, commenced in 1993 but continued until 2000. The European Court ruled that the Convention applied with respect to Romania only after the date of its accession: it did not apply at the time of the pogrom. Since the procedural obligation to conduct an effective investigation was ‘derived from’ the deeds taking place during the pogrom it followed, said the Court, the complaint of the breach of the procedural obligations was incompatible ratione temporis and must thus be rejected. The applicant in Jovanovic had been dismissed from work because of his alleged participation in a ‘referendum’ for Serbian autonomy in Croatia. His disciplinary appeal and his subsequent civil action having been unsuccessful, he lodged, anterior to the Croatian ratification of the Convention, a constitutional complaint before the Croatian Constitutional Court in which he challenged the constitutionality of the court decisions dismissing his civil action. The Constitutional Court, subsequent to the Croatian ratification of the Convention, dismissed his constitutional complaint. The European Court in turn considered the applicant’s dismissal as an instantaneous act not giving rise to a continuing situation of a violation of the Convention. Divorcing the domestic courts’ judgments delivered after ratification from the events which had given rise to the court proceedings would, in the view of McCaughey and Another [2011] UKSC 20, [2012] 1 AC. Moldovan v Romania App Nos 41138/98 and 64320/01 (unreported) 13 March 2001. Generally: J Pauwelyn, ‘The Concept of a “Continuing Violation” of an International Obligation: Selected Problems’ (1996) 66 BYIL 415; A Buyse, ‘A Lifeline in Time—Non-Retroactivity and Continuing Violations under the ECHR’ (2006) 75 NJIL 63. 5 Jovanovic v Croatia App No 59109/00, ECHR 2002-III. 3 4

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the European Court, amount to giving retroactive effect to the Convention, a result which it held to be contrary to general principles of international law. The case was declared incompatible ratione temporis. Other cases—such as Litovchenko v Russia,6 Kikots and Kikota v Latvia,7 Veeber v Estonia (No 1),8 Voroshilov v Russia,9 and Kholodov and Kholodova v Russia10 — followed in the same vein. The European Court in these cases, too, held that the principle of non-retroactivity meant that the Court did not have jurisdiction ratione temporis in cases bearing on facts antecedent to the ratification by the state in issue. The watershed case in the jurisprudence of the European Court was, as stated above, the Grand Chamber’s ruling in Šilih. The applicants in Šilih complained that their 20-year-old son had died as a result of medical negligence and that their rights under, inter alia, Article 2 of the Convention, in its so-called procedural limb, had been breached by the inefficiency of the Slovenian judicial system in establishing responsibility for the death.11 The applicants’ son had died, in the Ljubljana Clinical Centre on 19 May 1993, from the effects of medication which had been administered to him. The applicants, on 14 May 1993, lodged a criminal complaint with the public prosecutor’s office, against the duty doctor whom they alleged had been responsible for the death, for the criminal offence of ‘negligent medical treatment’. A judge directed the Ljubljana Institute for Forensic Medicine to conduct an autopsy and prepare a forensic report. The Institute, on 1 July 1993, submitted its report which concluded that no inappropriate or negligent acts or omissions had taken place. On 8 April 1994 the public prosecutor dismissed the applicants’ criminal complaint on the ground of insufficient evidence. The applicants then, acting as so-called subsidiary prosecutors, lodged a request for the opening of a criminal investigation into the doctor’s conduct. On 8 November the investigating judge of the court of first instance granted their request, which was subsequently, by a proceedings panel of the same court, overturned on appeal on 27 December 1997. The case then rose through the Slovenian criminal curial hierarchy, culminating in the rejection on 18 May 2001 by the Supreme Court of the applicants’ last petition. The applicants took their case to the European Court. Slovenia had when depositing the instrument of ratification12 of the Convention with the Council of Europe, in June 1994, made the following declaration: The Republic of Slovenia declares that it recognizes for an indefinite period of time . . . the competence of the European Commission of Human Rights to deal with petitions addressed to the Secretary General of the Council of Europe by any person, non-governmental Litovchenko v Russia App No 69580/01, 18 April 2002. Kikots and Kikota v Latvia App No 54715/00, 6 June 2002. 8 Veeber v Estonia (No 1) App No 37571/97, 7 November 2002. 9 Voroshilov v Russia App No 21501/02, 8 December 2005. 10 Kholodov and Kholodova v Russia App No 30651/05, 14 September 2006. 11 Šilih v Slovenia (n 1), at [1]‌–[2]. 12 Instrument of ratification by Slovenia of the Convention for the Protection of Human Rights and Fundamental Freedoms, deposited with the Secretary General of the Council of Europe on 28 June 1994. 6 7

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organisation or group of individuals claiming to be the victim of [a]‌violation of the rights set forth in the Convention and its Protocols, where the facts of the alleged violation of these rights occur after the Convention and its Protocols have come into force in respect of the Republic of Slovenia. The Republic of Slovenia declares that it recognizes for an indefinite period of time . . . as compulsory ipso facto and without special agreement, on condition of reciprocity, the jurisdiction of the European Court of Human Rights in all matters concerning the interpretation and application of the Convention and its Protocols and relating to facts occurring after the Convention and its Protocols have come into force in respect of the Republic of Slovenia.13

By way of contrast, the UK instrument of ratification14 does not contain any express exceptions inserted in order to exclude disputes arising out of events previous to the conclusion of the treaty. As will be seen below, this puts the United Kingdom in a different category from Slovenia.15 Given the lack of such express exceptions in the UK instrument of ratification the European Court in principle has jurisdiction over disputes arising before, or relating to situations or facts occurring before, either the establishment of the Court or the date upon which the Convention came into force in respect of the United Kingdom.16 The question before the European Court was whether the Convention obligations would be applicable to facts which had occurred before Slovenia’s accession to the Convention. The European Court began by adverting to the Vienna Convention on the Law of Treaties,17 whose Article 28, on the non-retroactivity of treaties, provides that: Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.18

The Court went on to cite Articles 13–14 of the International Law Commission’s (ILC) Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA). Article 13 provides that: An act of a State does not constitute a breach of an international obligation unless the State is bound by the obligation in question at the time the act occurs.19 Šilih v Slovenia (n 1), at [105]. Instrument of ratification by the United Kingdom of Great Britain and Northern Ireland of the Convention for the Protection of Human Rights and Fundamental Freedoms, deposited with the Secretary General of the Council of Europe on 8 March 1951. 15 Ch 5.3.1. 16 Austria v Italy (Pfunder’s Case) App No 788/60 11 January 1961 (1962) 4 Yearbook 116, 137 (EcomHR); cf Cases 1102/61 of 18 December 1961 and 1210/61 of 14 December 1962. Further: P Tavernier, Recherches sur l’application dans le temps des actes et des règles en droit international public (LGDJ, 1970), 215–20 at 218–19; MA Eissen, ‘Jurisprudence de la Commission européenne des Droits de l’homme relative à sa compétence ratione temporis’ (1963) 9 AFDI 722, 724–7; S Rosenne, The Law and Practice of the International Court (AW Sythoff, 1960), 54. 17 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, (1969) 8 ILM 679. 18 Šilih v Slovenia (n 1) at [106]. 19 See J Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge University Press, 2002), 131. Also: P Tavernier, ‘Relevance of Intertemporal Law’ in J Crawford, A Pellet, and S Olleson (eds), The Law of International 13 14

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It then explicated the position adopted by the International Court in cases raising an issue as to ratione temporis jurisdiction. This jurisprudence, the European Court said, had traditionally focused on the ‘source or real cause of the dispute’.20 In an earlier ruling on jurisdiction ratione temporis, Blečič v Croatia,21 the Court had cited Phosphates in Morocco22 and Certain Property23 as ‘relevant international law and practice’.24 The state of play in international law, as evidenced by the European Court’s survey in Blečič of the jurisprudence of the Permanent and the International Court, led the Strasbourg judges in Blečič to say, with reference to the jurisprudence which it had set out, that ‘in accordance with the general rules of international law . . . the provisions of the Convention do not bind a Contracting Party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the Convention with respect to that Party’;25 ‘this would be contrary to the general rule of non-retroactivity of treaties’.26 As the next part will show, it is not clear that this reading of the jurisprudence of the International and Permanent Courts is correct. At all events the European Court changed its course. If in Blečič the Court found that it did not have jurisdiction, in Šilih it held that it could in fact have jurisdiction over facts taking place or situations ceasing to exist before the date of the entry into force of the Convention with respect to the state party at issue. The Court in Šilih did so in reliance on the treaty norm in issue having ‘evolved’ so as to demand such a result: The Court concludes that the procedural obligation to carry out an effective investigation under Article 2 has evolved into a separate and autonomous duty. Although it is triggered by the acts concerning the substantive aspects of Article 2 it can give rise to a finding of a separate and independent ‘interference’ within the meaning of the Blečič judgment. . . . In this sense it can be considered to be a detachable obligation arising out of Article 2 capable of binding the State even when the death took place before the critical date.27

As was seen in Chapters 1 and 3, the register of evolution of course is not alien to the jurisprudence of the European Court.28 In Tyrer v United Kingdom the Court famously held that ‘the Convention is a living instrument’; it is to be ‘interpreted in the light of present-day conditions’.29 It seems from Šilih that the Court did not Responsibility (Oxford University Press, 2010), 398–400; J Crawford, State Responsibility: The General Part (Cambridge University Press, 2013), 245–51. 20 Šilih v Slovenia (n 1), at [109]. 21 Blečič v Croatia App No 59532/00, judgment [GC] of 8 March 2006. 22 Phosphates in Morocco (1938) PCIJ Rep Ser A/B No 74, 24. 23 Certain Property (Liechtenstein v Germany) (Preliminary Objections) (Judgment) [2005] ICJ Rep 25. 24 Blečič v Croatia (n 21), part III of the judgment at [46]–[47]. 25 26 Blečič v Croatia (n 21), at [70]. Blečič v Croatia (n 21), at [74]. 27 Šilih v Slovenia (n 1), at [159]–[160] (emphasis added). 28 H Waldock, ‘The Evolution of Human Rights Concepts and the Application of the European Convention on Human Rights’ in Mélanges offerts à Paul Reuter—Le droit international: unité et diversité (Pedone, 1981). 29 Tyrer v United-Kingdom (1978) 58 ILR 339, 353. Also: Hirsi Jamaa v Italy App No 27765/09, judgment [GC] of 23 February 2012 at [175] where the Grand Chamber spoke of ‘the principle, firmly rooted in the Court’s case-law, that the Convention is a living instrument which must be interpreted in the light of present-day conditions’.

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see it as possible to reach this conclusion but for this type of interpretative evolution of the import of the treaty terms contained in Article 2; only because of the ‘detachable obligation’ found to arise out of Article 2 did the Court in Šilih have jurisdiction ratione temporis. The European Court added a postscript in paragraph 163, where it tried to allay such fears that might obtain that the Court’s ruling was beyond the pale. It is worth citing this paragraph at some length: First, it is clear that, where the death occurred before the critical date, only procedural acts and/or omissions occurring after that date can fall within the Court’s temporal jurisdiction. Second, there must exist a genuine connection between the death and the entry into force of the Convention in respect of the respondent State for the procedural obligations imposed by Article 2 to come into effect. Thus a significant proportion of the procedural steps required by this provision—which include not only an effective investigation into the death of the person concerned but also the institution of appropriate proceedings for the purpose of determining the cause of the death and holding those responsible to account—will have been or ought to have been carried out after the critical date. However, the Court would not exclude that in certain circumstances the connection could also be based on the need to ensure that the guarantees and the underlying values of the Convention are protected in a real and effective manner.30

As will be seen below, it is not clear whether this attempt by the Court to blunt the impact of its decision was very successful. It was particularly this paragraph with which the concurring and dissenting judges took issue. Judges Bratza and Türmen, in their joint dissenting opinion, disagreed with the majority on the question of whether the Court had jurisdiction ratione temporis to examine the applicants’ complaint that the domestic authorities failed to deal with the claim arising out of their son’s death. In their view divorcing the procedural obligation from the death which, on their reading, gave rise to it would be ‘tantamount to giving retroactive effect to the Convention and rendering nugatory the State’s declaration recognising the Court’s competence to receive individual applications’.31 More importantly in their view, however, the ruling of the Court would ‘give rise to serious issues of legal certainty, if the Court’s temporal jurisdiction as regards compliance with the procedural obligation of Article 2 in respect of deaths that occurred before the date of ratification were to be regarded as open-ended’. Judges Bratza and Türmen were not convinced by the efforts on the part of the majority to dispel such fears. The ‘genuine connection’ requirement in their view would not go far enough in tempering the deleterious consequences of the main holding; they particularly underscored that it was ‘unclear whether by a “genuine connection” between the death and the entry into force of the Convention is meant a close temporal link between the two or some other and, if so, what connection’. They found that this situation was further exacerbated by the majority’s concluding Šilih v Slovenia (n 1) at [163] (internal references and paragraph numbers omitted). Šilih v Slovenia (n 1), Dissenting Opinion of Judges Bratza and Türmen, 60.

30 31

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statement in paragraph 163 that the Court would not exclude that, in certain undefined circumstances, the connection between the death and the entry into force of the Convention could also be based ‘on the need to ensure that the guarantees and the underlying values of the Convention are protected in a real and effective manner’. For Judges Bratza and Türmen it was particularly ‘the important principle of legal certainty’ which led them to disagree with the majority;32 this was why they favoured the approach taken by the Court in ‘the decision in the Moldovan case, which appears to us to be more faithful to the principles governing the liability of States for acts or omissions occurring before the entry into force of the Convention, to ensure greater coherence in the Court’s case-law and to be more compatible with the important principle of legal certainty’.33 It is not, however, clear that, in a case about the investigative duty in Article 2, according to the principles of general international law the death of the applicants’ son would have to be what triggered whether the Court had jurisdiction or not, and that only through evolutionary interpretation could the Court assert jurisdiction. Though the death, on 19 May 1993, occurred before the critical date, 28 June 1994, it was only well after this latter date that it became clear that the national authorities would not conduct an investigation into what had happened. In order critically to analyse what the European Court did in Šilih it is at this stage apposite to look at the doctrine of jurisdiction ratione temporis in the jurisprudence of the International and Permanent Courts.

5.3 The Traditional Doctrine of Jurisdiction Ratione Temporis There is a large literature analysing the approach of the International and Permanent Courts to jurisdiction ratione temporis.34 The development of the doctrine on jurisdiction ratione temporis in general international law is usually seen against Šilih v Slovenia (n 1), Dissenting Opinion of Judges Bratza and Türmen, 62. Šilih v Slovenia (n 1), Dissenting Opinion of Judges Bratza and Türmen, 62. 34 Generally: WE Beckett, ‘Decisions of the Permanent Court of International Justice on Points of Law and Procedure of General Application’ (1930) 11 BYIL 1; C Rousseau, Principes généraux du droit international public, vol I (Pedone, 1944), 485–505; HW Baade, ‘Intertemporales Völkerrecht’ (1957) 7 GYIL 229, 249; C Debbasch, ‘La compétence “ratione temporis” de la Cour international de justice dans le système de la clause facultative de juridiction obligatoire’ (1960) 64 RGDIP 230; S Rosenne, The Time Factor in the Jurisdiction of the International Court of Justice (AW Sythoff, 1960); WD Krause-Ablaß, Intertemporales Völkerrecht (Forschungsstelle für Völkerrecht und ausländisches Recht der Universität Hamburg, 1969), 29–30; P Tavernier, Recherches sur l’application dans le temps (n 16), 215–20; J Collier and V Lowe, The Settlement of Disputes in International Law: Institutions and Procedures (Oxford University Press, 1999), 146–8; DW Greig, Intertemporality and the Law of Treaties (BIICL, 2001), 10–11; A Koroma, ‘Assertion of Jurisdiction by the International Court of Justice’ in P Capps, M Evans, and S Konstadinidis (eds), Asserting Jurisdiction: International and European Legal Perspectives (Hart, 2003), 196; S Rosenne, The Law and Practice of the International Court 1920–2005, vol II Jurisdiction (4th edn, Martinus Nijhoff, 2005); R Higgins, Themes and Theories: Selected Essays, Speeches, and Writings in International Law, vol II (Oxford University Press, 2009), 875–80; J Crawford, Brownlie’s Principles of Public International Law (8th edn, Oxford University Press, 2012), 729; R Kolb, La Cour international de justice (Pedone, 2012), 427–8, 537–9. 32 33

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the backdrop of the principle of the non-retroactivity of treaties. The relationship between the two is, however, more complicated than sometimes assumed. The issue may be split into two: how, first, ought the matter to be viewed where there is no title of jurisdiction which deprives the Tribunal in issue of jurisdiction over matters which arose before the critical date?; and how, secondly, ought one to treat facts anterior to the critical date when there is in fact a title of jurisdiction restricting the jurisdiction of the Tribunal in issue?

5.3.1 No inference of non-retroactivity when title of jurisdiction is silent The principle of non-retroactivity of treaties is well established. A treaty will, according to Article 28 of the Vienna Convention on the Law of Treaties (VCLT),35 not have retroactive effect so as to bind a party with respect to any act or fact which took place, or any situation which ceased to exist, before its entry into force for that party, unless this is provided for in the treaty: Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.

It is, however, clear that a treaty can apply to a pre-existing act, fact, or situation which continues after the treaty’s entry into force.36 Moreover, an international court or Tribunal may, under the jurisdictional clause of a treaty, have jurisdiction over matters occurring before entry into force of the treaty.37 A contracting state can, under Article 36(2)–(3) of the Statute of the International Court,38 accept the compulsory jurisdiction of the Court ‘unconditionally or on condition of reciprocity . . . or for a certain time’. The fundamental question which arises here is, however, this: is there an inference of non-retroactivity as regards the scope of any obligation to accept the jurisdiction of the Court, when the title of jurisdiction in this regard is silent?39 The answer is ‘no’. This is borne out by the jurisprudence of the Permanent and International Courts. Rosenne, basing himself on the jurisprudence of the Permanent Court, concluded that: in principle there is nothing to prevent the Court from exercising jurisdiction over disputes arising before, or relating to situations or facts occurring before, either the establishment

35 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 222. 36 Pauwelyn, ‘Continuing Violation’ (n 4); J Salmon, ‘Duration of the Breach’ in J Crawford, A Pellet, and S Olleson (eds), The Law of International Responsibility (Oxford University Press, 2010), 386. 37 A Aust, Modern Treaty Law and Practice (3rd edn, Cambridge University Press, 2013), 157. 38 Statute of the International Court of Justice, 26 June 1945, 892 UNTS 119. 39 See Rosenne, The Law and Practice of the International Court (n 16), 54.

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of the Court or the date upon which one or other of the parties became party to the Statute or otherwise under the obligation to accept the jurisdiction.40

The Permanent Court in Mavrommatis expressed the view that, unless an express provision to the contrary is found in an arbitration treaty or article, excluding disputes arising before or out of events previous to the date of the treaty, the agreement must be interpreted as covering all such disputes, and relied on the express exceptions often inserted excluding disputes arising out of events previous to the conclusion of the treaty as showing the necessity of such a limitation being express.41 The Permanent Court stated that: in cases of doubt, jurisdiction based on an international agreement embraces all disputes referred to [the Court] after its establishment. . . . The reservation made in many arbitration treaties regarding disputes arising out of events previous to the conclusion of the treaty seems to prove the necessity for an explicit limitation of jurisdiction and, consequently, the correctness of the rule of interpretation enunciated above.42

In the same vein the Permanent Court in Phosphates in Morocco said about the relevant wording expressing in that case the limitation ratione temporis that not only was it clear but the intention which inspired it seems equally clear: it was inserted with the object of depriving the acceptance of the compulsory jurisdiction of any retroactive effects in order both to avoid, in general, a revival of old disputes, and to preclude the possibility of the submission to the Court by means of an application of situations or facts dating from a period when the State whose action was impugned was not in a position to foresee the legal proceedings to which these facts and situations might give rise.43

What is telling about this dictum is its negative approach. It stresses how a definite intention to ‘avoid’ and ‘preclude’ certain consequences which would, we are plainly led to believe, otherwise exist and to ‘deprive’ the Court of jurisdiction which it would otherwise have had.44 Mavrommatis and Phosphates in Morocco together established that in the absence of an express provision in the title of jurisdiction there is ‘an absolute necessary inference’ of retroactivity which can only be expressly displaced.45 Tavernier, on the basis of these two rulings, formulated the rule that: ‘une limitation ratione temporis devra être expressément prévue dans l’acte attributive de compétence et elle sera interprétée restrictivement’.46 The International Court returned to this in Bosnia.47 Yugoslavia had argued that the Court lacked jurisdiction to give effect to the Convention on the Prevention Rosenne, The Law and Practice of the International Court (n 16), 54. See Beckett, ‘Decisions of the Permanent Court of International Justice on Points of Law and Procedure of General Application’ (n 34), 21–2. 42 Mavrommatis Palestine Concessions (1924) PCIJ Rep Ser A No 2, 35. 43 Phosphates in Morocco (n 22), 24. 44 Rosenne, Law and Practice of the International Court (n 16), 56; Tavernier, L’application dans le temps (n 16), 216. 45 Rosenne, Law and Practice of the International Court (n 16), 56. 46 Tavernier, L’application dans le temps (n 16), 217–18. 47 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia Herzegovina v Serbia and Montenegro) (Preliminary Objections) [1996] ICJ Rep 595. 40 41

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and Punishment of the Crime of Genocide48 with respect to acts which had occurred prior to the Genocide Convention entered into force between the parties. Yugoslavia argued that ‘according to the rule of customary international law, the Genocide Convention would not be operative between the parties prior to 29 December 1992 and, accordingly, this would not confer jurisdiction on the Court in respect of events occurring prior to 29 December 1992’.49 Yugoslavia, in other words, based its argument on the principle of non-retroactivity. This is what the Court said about its jurisdiction ratione temporis in paragraph 34 of its judgment: Yugoslavia, basing its contention on the principle of the non retroactivity of legal acts, has . . . asserted . . . that, even though the Court might have jurisdiction on the basis of the [Genocide] Convention, it could only deal with events subsequent to the different dates on which the Convention might have become applicable as between the Parties. In this regard, the Court will conﬁne itself to the observation that the Genocide Convention— and in particular Article IX—does not contain any clause the object or effect of which is to limit in such manner the scope of its jurisdiction ratione temporis, and nor did the Parties themselves make any reservation to that end, either to the Convention or on [a later possible opportunity]. The Court thus ﬁnds that it has jurisdiction in this case to give effect to the Genocide Convention with regard to the relevant facts which have occurred since the beginning of the conﬂict which took place in Bosnia and Herzegovina.50

The Court rejected Yugoslavia’s argument that it could deal only with events subsequent to the date on which the Convention became applicable as between the parties. The subsequent 2007 judgment in the case thus referred to events which occurred prior to that date.51 What the Court said in paragraph 34 of Bosnia was an application of the rule relating to jurisdictional clauses enunciated in Mavrommatis.52 Article IX of the Genocide Convention contains the convention’s jurisdictional clause. It provides that: Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or any of the other acts enumerated in Article 3, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.

As mentioned above, the Permanent Court in Mavrommatis expressed the view that with respect to jurisdictional clauses that which has not been excluded is included; unless an express provision to the contrary is found the agreement must be interpreted as covering all such disputes.

48 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277. 49 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia Herzegovina v Serbia and Montenegro) (n 47), 608 at [15]. 50 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia Herzegovina v Serbia and Montenegro) (n 47), 617 at [34]. 51 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43, 138 at [232]–[233]. 52 A Chua and R Hardcastle, ‘Retroactive Application of Treaties Revisited: Bosnia-Herzegovina v Yugoslavia’ (1997) 44 NILR 414, 418.

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When a treaty contains a jurisdictional clause, and the parties do not intend the Court to have jurisdiction over matters occurring prior to the treaty’s entry into force, the parties must specifically provide that the Court’s jurisdiction ratione temporis is limited.53 In paragraph 34 of Bosnia the Court considered whether the Convention contained any clause the object or effect of which was to limit the Court’s jurisdiction ratione temporis.54 As neither Bosnia-Herzegovina nor Yugoslavia had made any such explicit reservations the Court’s jurisdiction was not restricted ratione temporis. The same is the case in the few cases where the issue has come to a head in the jurisprudence of the Strasbourg organs. Thus, in Austria v Italy55 the Commission held that given that no provision of the European Convention56 limited the temporal scope of the Convention, and that the state in issue had not entered express provision excluding disputes arising before or out of events previous to the date of the treaty, the agreement must be interpreted as covering all such disputes. It did so relying explicitly on the Mavrommatis principle: ainsi que la Cour Permanente de Justice Internationale l’a reconnu en l’affaire Mavrommatis (Série A, no 2, page 35), ‘une juridiction basée sur un accord international s’étend’, ‘dans le doute’ ‘à tous les différends qui lui sont soumis après son établissement’, et ‘la réserve faite dans de nombreux traités d’arbitrage au sujet de différends engendrés par des événements antérieurs à la conclusion du traité, semble démontrer la nécessité d’une limitation expresse de la juridiction’; qu’il s’ensuit que le simple fait que l’Autriche n’ait acquis qu’à une date ultérieure le pouvoir de saisir la Commission de manquements allégués à la Convention ne suffit pas, par lui-même, à l’empêcher d’exercer ce pouvoir au sujet de la procédure suivie devant la Cour d’Assises de Bolzano/Bozen et la Cour d’Appel de Trente.57

In the context of an inter-state case such as Austria v Italy, a state may introduce an application only after it has itself ratified the Convention, and the facts can be anterior to the ratification by the applicant state, so long as they are posterior to the ratification by the respondent state.58 The Strasbourg organs have taken the same approach to individual applications in cases where the title of jurisdiction is silent,59 that is, cases where, as is the case with the UK instrument of ratification,60 the state in issue has not inserted any express exceptions in order to exclude disputes arising out of events previous to the conclusion of the treaty. In such cases the Convention

Chua and Hardcastle, ‘Retroactive Application of Treaties Revisited’ (n 52), 418. Chua and Hardcastle, ‘Retroactive Application of Treaties Revisited’ (n 52), 419. 55 Austria v Italy (Pfunder’s Case) (n 16). 56 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 222. 57 Austria v Italy (Pfunder’s Case) (n 16), 137. 58 Tavernier, L’application dans le temps (n 16), 218. 59 See eg Eissen, ‘Jurisprudence de la Commission européenne des Droits de l’homme relative à sa compétence ratione temporis’ (n 16), 724; Tavernier, L’application dans le temps (n 16), 219. 60 Instrument of ratification by the United Kingdom of Great Britain and Northern Ireland of the Convention for the Protection of Human Rights and Fundamental Freedoms, deposited with the Secretary General of the Council of Europe on 8 March 1951. 53

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organs have jurisdiction over facts anterior to the state’s ratification of the European Convention.

5.3.2 The source of the dispute When an international court is faced with the question whether or not it has jurisdiction ratione temporis over a dispute, the International Court said in its counter-claim order in Jurisdictional Immunities of the State, ‘the facts and situations it must take into consideration are those with regard to which the dispute has arisen or, in other words, only those which must be considered as being the source of the dispute, those which are its “real cause” rather than those which are the source of the claimed rights’.61 This doctrine has a long pedigree. In the jurisprudence of the Permanent Court two judgments are of pertinence when it comes to the development of the doctrine of jurisdiction ratione temporis: Phosphates in Morocco62 and Electricity Company of Sofia.63 Most apposite for the present purposes is what the Permanent Court ruled in Electricity Company of Sofia. Widening its approach from Phosphates in Morocco,64 the Permanent Court in Electricity Company of Sofia held that: It is true that a dispute may presuppose the existence of some prior situation or fact, but it does not follow that the dispute arises in regard to that situation or fact.65

The Bulgarian government in Electricity Company disputed the jurisdiction of the Permanent Court by relying on the limitation ratione temporis embodied in the Belgian declaration concerning the situations or facts with regard to which the dispute had arisen. The parties were in agreement that the time at which the dispute arose was 1937—ie after 1926, the date of the establishment of the juridical bond between the two states under Article 36 of the Statute of the Permanent Court. The Bulgarian government argued, however, that although the facts complained of by the Belgian government all dated from a period subsequent to 1926 the situation with regard to which the dispute arose dated back to a period before that date. This situation was created by the awards of the Belgo–Bulgarian Mixed Arbitral Tribunal, and in particular by the formula established by two awards of 1923 and 1925, laying down electricity prices. It was true, said the Permanent Court, that the arbitral awards established between the Belgian Electricity Company and the Bulgarian authorities a situation dating from before 1926, and still persisted at the time when the Permanent Court was seized of the case. The dispute did not arise, however, with regard to this situation or to the awards which established it: ‘The only situations or facts which must 61 Jurisdictional Immunities of the State (Germany v Italy) (Counter-Claim) (Order) [2010] ICJ Rep 310, 318 at [23]. 62 Phosphates in Morocco (n 22), 10–30. 63 Electricity Company of Sofia and Bulgaria (Belgium v Bulgaria) (1939) PCIJ Rep Ser A/B No 77, 64. 64 Rosenne, The Law and Practice of the International Court 1920–2005, vol II (n 34), 496. 65 Electricity Company of Sofia and Bulgaria (Belgium v Bulgaria) (n 63), 82.

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be taken into account from the standpoint of the compulsory jurisdiction accepted in the terms of the Belgian declaration are those which must be considered as being the source of the dispute.’66 The French wording, which perhaps better brings out the meaning than does the English rendition, was ‘générateurs du différend’.67 No such relation was found to exist between the present dispute and the arbitral awards. It was not enough to say, as had done the Bulgarian government, ‘that if it had not been for these awards, the dispute would not have arisen, for the simple reason that it might just as well be said that, if it had not been for the acts complained of, the dispute would not have arisen’. The approach in Electricity Company of Sofia was followed in Right of Passage, where the International Court held that: The Permanent Court thus drew a distinction between the situations or facts which constitute the source of the rights claimed by one of the Parties and the situations or facts which are the source of the dispute. Only the latter are to be taken into account for the purpose of applying the Declaration accepting the jurisdiction of the Court.68

The ruling in Rights of Passage is significant not least because it insists on treating the complex as forming a whole, comprising both the rights and obligations of the two parties. Whatever the earlier origin of the parts of the dispute, it as a whole came into existence only after the exclusion date.69 This is the backdrop of general international law on jurisdiction ratione temporis; it has been succinctly summed up by Higgins: The broad position of the Court—and its predecessor the Permanent Court of International Justice—has been that acceptance of the jurisdiction of the Court does have retrospective effect . . . unless this is specifically excluded by a reservation to the general acceptance of jurisdiction.70

It is equally plain that the jurisprudence of the Permanent Court and the International Court admits of the conclusion that facts and situations arising before the critical date may very well lead to the court in issue having jurisdiction; the important point is whether they were the ‘source of the dispute’—‘générateurs du différend’.71

5.3.3 Jurisdiction ratione temporis at domestic level The ruling by the UK Supreme Court in McCaughey furnishes a pertinent example of some of the problems created by the solution that the Grand Chamber of the European Court found in Šilih. McCaughey bore on the jurisdiction ratione temporis of national courts in cases concerning claims arising from the Human Electricity Company of Sofia and Bulgaria (Belgium v Bulgaria) (n 63), 82. Electricity Company of Sofia and Bulgaria (Belgium v Bulgaria) (n 63), 82. Right of Passage (Portugal/India) [1960] ICJ Rep 6, 35. Also: Certain Property (Liechtenstein v Germany) (n 23), 48. 69 Rosenne, Law and Practice of the International Court 1920–2005, vol II (n 34), 763. 70 Higgins, Themes and Theories, vol II (n 34), 876. 71 Electricity Company of Sofia and Bulgaria (Belgium v Bulgaria) (n 63), 82. 66 67

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Rights Act 1998 (HRA).72 This was a question with which it was not possible to deal without building on the jurisprudence of the European Court, most notably the ruling of the Court’s Grand Chamber in Šilih. If in Šilih history had repeated itself as tragedy the issue would later, when it came before the Supreme Court in McCaughey, certainly take on the aspects of the farce.73 The issue that the European Court considered in the cases bearing on jurisdiction ratione temporis was echoed by an issue which arose in UK law in relation to the application of the HRA. The HRA came into force on 2 October 2000. In a series of decisions the House of Lords decided that no claim lay in respect of an alleged breach of the Convention if the facts which gave rise to the alleged breach predated the entry into force of the HRA. The issue then arose of whether the procedural obligation to investigate a death applied after the HRA had come into force in relation to a death which had occurred before the Act came into force. The House of Lords in In re McKerr74 had held that it did not. Their reasoning in broad terms followed that of the European Court at the time, in effect transposing the argument of the European Court into a national context. Because the death in McKerr had occurred before the HRA had come into force it was not within the jurisdiction ratione temporis of the courts, and because the obligation to hold an investigation was triggered by the death, that consequential obligation was not within the reach of the Act either. The House of Lords in McKerr had been unanimous in holding that the obligations created by the HRA did not, on the true interpretation of that Act, extend to the assumed continuing procedural obligation. In Lord Hoffmann’s view it was plain that the ancillary right to an investigation of the death did not apply to a person who died before the HRA came into force. If this were not the case, he said, there could be no limit, in principle, to the time one could go back into history and carry out investigations. Either the HRA applied to deaths before 2 October 2000 or it did not. If it did, he said, there was no reason why the date of accession to the Convention should matter: ‘It would in principle be necessary to investigate the deaths by state action of the Princes in the Tower.’75 This approach, which has an alluring elegance and simplicity, was consistently upheld by the House of Lords in R (Hurst) v London Northern District Coroner76 and Jordan v Lord Chancellor.77 It was to be the change in the jurisprudence of the European Court in Šilih which would upset the jurisprudence of the Supreme Court. The claimants in McCaughey were the next of kin of Martin McCaughey and Dessie Grew who had been shot and killed by the British Army on 9 October 1990. A coroner had been assigned 72 Human Rights Act 1998 (UK), which gives qualified domestic effect to the European Convention on Human Rights. Generally on the temporal scope of the HRA 1998: A Rodger, ‘A Time for Everything Under the Law: Some Reflections on Retrospectivity’ (2005) 121 LQR 57; B Juratowitch, Retroactivity and the Common Law (Hart, 2008), 91–112. 73 K Marx, ‘The Eighteenth Brumaire of Louis Bonaparte’ in D Fernbach (ed), Surveys from Exile (Penguin, 1973), 146. 74 In re McKerr [2004] UKHL 12, [2004] 1 WLR 807. 75 In re McKerr (n 74) at [67]. 76 R (Hurst) v London Northern District Coroner [2007] UKHL 13, [2007] 2 AC 189. 77 Jordan v Lord Chancellor [2007] UKHL 14, [2007] 2 AC 226.

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to the case; on 14 September 2009 he had held a preliminary hearing. The appellants applied at that hearing for a ruling that the coroner would hold an inquest into the two deaths which complied with the exigencies of Article 2 of the ECHR. This the coroner declined. Following a further hearing the coroner on 1 December 2009 issued a ‘preliminary definition’ of the scope of the inquest which he proposed to hold. The claimants made representations to the coroner to the effect that the scope of the inquest ought to cover the question of whether the operation had been planned and controlled so as to minimize to the greatest extent possible recourse to lethal force. The Police Service of Northern Ireland and the Ministry of Defence made written representations asserting that the coroner was precluded from investigating the planning and control of the operation: they asserted that McKerr established that there was no requirement for the inquest to comply with Article 2 of the Convention. From this it followed that the scope of the inquest was restricted to establishing ‘by what means’ rather than ‘in what broad circumstances’ the deceased came to their deaths—ie a so-called Jamieson inquest as brought out in ex p Jamieson.78 One of the questions which arose in McCaughey was whether the reasoning in McKerr applied ‘in the light of the change in nature of the procedural obligation that the decision in Šilih has produced’.79 The Supreme Court in McCaughey saw Šilih as an instance of evolutionary interpretation on the part of the European Court: The Convention is a ‘living instrument’ which evolves over time as a result of interpretative decisions of the ECtHR. The procedural obligation implicit in article 2 is itself a good example of such evolution.80

Commenting extra-judicially on the evolutionary interpretation on display in Šilih, Baroness Hale later remarked that: As a supporter of the Convention and the work of the Strasbourg Court, my plea to them is to accept that there are some natural limits to the growth and development of the living tree. Otherwise I have a fear that their judgments, and those of the national courts which follow them, will increasingly be defied by our governments and Parliaments.81

This at all events gave the Supreme Court cause to reappraise its jurisprudence. Lord Phillips in McCaughey said about Lord Hoffmann’s speech in McKerr that he had not ‘with respect, found all of this reasoning easy to follow’ as it did ‘not appear to focus on the basis of the claim, which was that a continuing obligation under the Convention had given rise to an obligation under domestic law once the HRA came into force’.82 Lord Phillips cited the Grand Chamber’s conclusion in Šilih, in respect of which he said that he was ‘not alone in having difficulty in identifying the precise R v Coroner for North Humberside and Scunthorpe, ex p Jamieson [1995] QB 1, [1994] 3 WLR 82. McCaughey and Another (n 3) at [24]. McCaughey and Another (n 3) at [139] (Lord Dyson). Also: McCaughey and Another (n 3) at [90] (Baroness Hale). 81 B Hale, ‘Common Law and Convention Law: The Limits to Interpretation’ [2011] EHRLR 534, 543. 82 McCaughey and Another (n 3) at [31]. 78

79

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circumstances in which the procedural obligation attaches as a “separate and autonomous duty” ’.83 Still it was necessary to identify what the Grand Chamber had decided in order to determine how that impacted on the decision of the House of Lords in McKerr. In conclusion Lord Phillips stated that the ‘procedural acts and/or omissions’ to which the Grand Chamber had referred in para 162 must relate to ‘specific incidents of a particular process or procedure’; ‘omissions’ could not be read as applying to historic failings before the critical date which have not been remedied. In the view of Lord Hope, ‘only the most starry-eyed admirer of the Strasbourg court could describe the guidance that the Grand Chamber offered in para 163 of its judgment in Šilih as clear’.84 The obligation which was apposite in McCaughey was the obligation to comply with the procedural requirements of Article 2. This applied where ‘a significant proportion on the procedural steps’ which Article 2 requires in fact take place after the Convention has come into force. This was a free standing obligation, on which there was no other temporal restriction other than that the procedural steps take place after the Convention has come into force. Lord Phillips underscored that the United Kingdom was not under a continuing obligation under Article 2 to carry out an investigation into the deaths over 20 years ago of the claimants. An inquest was, however, to be held, and as ‘a matter of international obligation it is now apparent that the United Kingdom has come under a free standing obligation under Article 2 to ensure that the inquest complies with the procedural requirements of that article, at least in so far as it is possible under domestic law’.85 The test laid down by the European Court that ‘a significant proportion of the procedural steps required by the provision . . . ought to have been carried out after the critical date’ Lord Phillips interpreted as meaning that if ‘the death occurs so soon before the date that the Convention takes effect that (assuming it to have been applicable) the Article 2 obligation to hold an investigation would still have persisted, then that obligation will arise as a free standing obligation’.86 As will have been seen, though the Supreme Court followed what the European Court had said in Šilih this was not without considerable gnashing of teeth. The fact that the Grand Chamber on its own admission could arrive at its conclusion only by way of evolutionary interpretation and the rather abstruse nature of the test applied in Šilih were both sources of consternation to the Supreme Court.

5.4 Conclusion As stated above the International Court said in Right of Passage that a distinction has to be drawn between the situations or facts constituting the source of the rights claimed by one of the parties and the situations or facts which are the source of the McCaughey and Another (n 3) at [46]. McCaughey and Another (n 3) at [51].

83 85

McCaughey and Another (n 3) at [73]. McCaughey and Another (n 3) at [52].

84 86

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dispute; only the latter are to be taken into account for the purpose of applying the declaration accepting the jurisdiction of the court.87 On this principle it is in no way clear that the pogrom in Moldovan or the death in Šilih would have to have been conceived of as the real cause of the dispute. The dispute in Moldovan was not about the pogrom; it was about the failure properly to make investigations into it. The dispute in Šilih, similarly, was not about the death of the applicants’ son; it was about the failure of the state to investigate this death. There was no need for recourse to evolutionary interpretation to solve this in Šilih. It would instead have been pertinent for the European Court to take more seriously the international jurisprudence which it claimed put a thumb on the scale in favour of denying jurisdiction ratione temporis. In Certain Property the International Court said about Electricity Company in Sofia: In the Electricity Company case, Bulgaria argued that the awards of the Belgo–Bulgarian Mixed Arbitral Tribunal, which predated the critical date, had to be treated as the ‘situations’ that gave rise to the dispute. The Permanent Court of International Justice rejected this argument and held that, while these awards constituted the source of the rights claimed by Belgium, they were not the source of the dispute.88

The same ought to have been the case in Šilih. It is plain that the ancillary duty, in Article 2 of the Convention, on the state to investigate deaths, first recognized in McCann,89 would not have arisen in this case if it had not been for the death. The European Court in McCann held that Article 2 by implication gave rise not merely to a substantive obligation on the state not to kill people but, where there was an issue as to whether the state had broken this obligation, a procedural obligation on the state to carry out an effective official investigation into the circumstances of the deaths. McCann was, as was stated above, the first occasion on which the European Court ruled that Article 2 gives rise to a procedural obligation. In so doing the Court responded to a submission made by the applicants who had complained about the planning which had taken place before the shooting of an IRA unit in Gibraltar. They alleged that the shooting had either been premeditated or had resulted from negligence. Furthermore they complained that the inquest held into the deaths had not constituted an adequate investigation into the circumstances of the killings. The applicants submitted that Article 2 ought to be interpreted as including a procedural element—ie the provision of an effective procedure after the event for establishing the fact that the procedures in the case had been inadequate. The Court accepted this last submission, holding that it confined itself: to noting, like the Commission, that a general legal prohibition of arbitrary killing by the agents of the state would be ineffective, in practice, if there existed no procedure for reviewing the lawfulness of the use of lethal force by state authorities. The obligation to protect the right to life under [art 2], read in conjunction with the state’s general Right of Passage over Indian Territory (Portugal/India) (n 68), 35. Certain Property (Liechtenstein v Germany) (n 23), 23 at [41]. McCann v United Kingdom (1996) 21 EHRR 97.

87

88 89

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duty under article 1 of the Convention to ‘secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention’, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the state.90

The European Court in McCann held that there was no need to decide what form such investigation should take as the inquest that had been held had satisfied the procedural obligation. No issue of jurisdiction ratione temporis arose; both the killings and the inquest took place long after the ratification of the Convention by the United Kingdom. The lack of an effective investigation itself was the heart of the alleged violation in Šilih. As the European Court would later put it in Varanava, it has ‘its own distinct scope of application which can operate independently from the substantive limb of Article 2’,91 which, so far as the present purposes are concerned, is concerned with state responsibility for any unlawful death, as shown by the numerous cases decided by the Court where a procedural violation has been found in the absence of any finding that state agents were responsible for the use of lethal force.92 At issue in Šilih was not the death as such—but the lacking investigation of the state into its circumstances. The death did not constitute ‘the source of the dispute’; it was rather ‘the source of the rights claimed’ by the applicants. Again to quote the Permanent Court in Electricity Company of Sofia: It is not enough to say, as it is contended by the Bulgarian Government, that if it had not been for [the awards of the Belgo–Bulgarian Mixed Arbitral Tribunal, which predated the critical date], the dispute would not have arisen, for the simple reason that it might just as well be said that, if it had not been for the acts complained of, the dispute would not have arisen. It is true that a dispute may presuppose the existence of some prior situation or fact, but it does not follow that the dispute arises in regard to which a dispute is said to have arisen must be the real cause of the dispute.93

To sum up, although the result in Šilih was correct in the sense that the Court found that it had jurisdiction ratione temporis, the way in which the European Court conceived of the issue, and its reluctance simply to say that in terms of general international law the matter was plain, shows that there has been a serious disconnect between the test of the European Court and the test applied by the International Court. This disconnect, and the convoluted resolution which the European Court found to it, has created problems for the national courts who see themselves bound to follow—or for other reasons effectively follow—the European Court’s jurisprudence. The European Court in Šilih was, to use a phrase from Arthur Koestler, right for the wrong reasons.94 90 McCann v United Kingdom (n 89) at [161]. This formulation of the ancillary duty was repeated in Kaya v Turkey (1998) 28 EHRR 1 and Güleç v Turkey (1998) 28 EHRR 121. 91 Varnava and Others v Turkey App Nos 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, and 16073/90, judgment 18 September 2009. 92 McCann v United Kingdom (n 89); Finucane v United Kingdom App No 29178/95, ECHR 2003-VIII. 93 Electricity Company of Sofia and Bulgaria (Belgium v Bulgaria) (n 63), 82. 94 A Koestler, The Trail of the Dinosaur and Other Essays (Macmillan, 1955), 50.

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The Šilih approach has been confirmed in the European Court’s later jurisprudence in the sense that the Court has gone on to hold that a procedural obligation on the state exists which is separate and autonomous from the substantive element of Article 2. The Court has, however, gone further than that in confirming the approach taken in Šilih. It has also extended this principle to cases concerning deaths at the hands of private individuals95 and also to the procedural obligation to investigate possible breaches under Article 3.96 The same is the case with Janowiec,97 where the Grand Chamber further refined aspects of the test it had developed in Šilih.98 This seems further to bring out the piecemeal quality of the approach of Šilih. It is, as Lord Hope remarked in McCaughey, plain that ‘the principle that the Convention does not have retroactive effect was left untouched in Šilih’.99 This is obviously true, perhaps in one sense even truer than Lord Hope realized. Equally important is the realization that Article 28 of the Vienna Convention on the Law of Treaties (VCLT) poses no problems in this regard; the same is the case with respect to Articles 13–14 of the ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts. The question to which Article 28 of the VCLT is the answer is the wrong one. As Koroma has put it, ‘when jurisdiction derives from a treaty, the potential retroactivity of the Court’s jurisdiction is distinct from the retroactivity of the obligations arising out of the treaty itself’.100 The question to which Article 28 of the VCLT is the answer is equally the wrong question with regard to the effects of a treaty in municipal law. To talk about the retroactivity of the Act is wide of the mark; here too we are talking about what is properly described as the ‘real cause’. Thus, in principle, even the question of the investigation of the deaths by state action of the Princes in the Tower becomes a question not of when the deaths occurred but of the time of the occurrence of the ‘real cause’. Had the decision not to investigate the disappearance of Princes Edward and Richard been taken after the critical date, which it may be stated with some certainty was not the case, then the answer in their case would have had to have been the same as in McCaughey. Posing the question in this way seems to temper the clout of Lord Hoffmann’s pat answer to the problem. One thing of which we may be sure, however, is that the test from Electricity Company of Sofia is a more elegant solution to a riling problem than is the test developed in Šilih. Had the European Court applied the international jurisprudence properly then it would have made things easier for itself—and also for the 95 Lyubov Efimenko v Ukraine App No 75726/01, 25 November 2010; Frandeş v Romania App No 35802/05, judgment 17 May 2011. 96 Tuna v Turkey App No 22339/03, judgment 19 January 2010; Stanimirović v Serbia App No 26088/06, 18 October 2011; PM v Bulgaria App No 49669/07, judgment 24 January 2012; Yatsenko v Ukraine App No 75345/01, judgment 16 February 2012. 97 Janowiec and Others v Russia App Nos 55508/07 and 29520/09, judgment [GC] of 21 October 2013. 98 Janowiec and Others v Russia (n 97) at [146]–[148]. 99 McCaughey and Another (n 3), at [127]. 100 Koroma, ‘Assertion of Jurisdiction’ (n 34), 196.

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national courts who, in effect, see themselves bound to follow its jurisprudence. The test in Šilih has been criticized both for being abstruse and for being a result of ‘evolutionary interpretation’. Both of these problems would have been obviated had the European Court instead applied the test from Electricity Company of Sofia. The European Court in other words made things unnecessarily complicated by conceiving of jurisdiction ratione temporis under the European Convention as one of evolution, when it could have reached the same result by relying upon the traditional doctrines of general international law, no recourse to evolution whatever being necessary.

6 Conclusion Evolution Intended

6.1 Intention of the Parties and Evolution The research question posed at the beginning of this book was the following: What is the place of the evolutionary interpretation of treaties within the rules of treaty interpretation codified in the Vienna Convention on the Law of Treaties (VCLT)?1 This book’s answer to that question has been that the evolutionary interpretation is, in common with other types of interpretation, an outcome of the process described in the general rule of interpretation. There is thus nothing exceptional about evolutionary interpretation; in common with other types of interpretation it is based upon the objective establishment of the intention of the parties. The evolution involved in the evolutionary interpretation of treaties should be understood as evolution intended. ‘Interpretation’, said Phillimore, ‘is the life of the dead letter’.2 The giving of life to dead letters necessarily entails some measure of development of the law.3 As the ILC pointed out, in most instances interpretation involves giving a meaning to a text which is to be applied to facts not contemplated in the intentions of the parties at all.4 Yet as this study has demonstrated, the process of giving life to legal texts is not unbound by rules. To the famous adage that treaty interpretation is an art not a science, Ago added the gloss that in reality the question is whether there are any rules for practising that art.5 The rules are today spelled out in Articles 31–33 of the VCLT. As this book has shown, these rules apply as much to the evolutionary interpretation of treaties as to any other type of interpretive process or result.

1 Vienna Convention on the Law of Treaties 23 May 1969, 1155 UNTS 331, (1969) 8 ILM 679. 2 R Phillimore, Commentaries upon International Law, vol II (3rd edn, Butterworths, 1882), 90. 3 R Kolb, Interprétation et création du droit international. Esquisse d’une herméneutique juridique moderne pour le droit international public (Bruylant, 2006), 103–22. 4 ILC Ybk 1964/II, 53. Also: R Gardiner, ‘The Vienna Convention Rules on Treaty Interpretation’ in D Hollis (ed), The Oxford Guide to Treaties (Oxford University Press, 2012), 477–8. 5 ILC Ybk 1964/I, 23 (emphasis added).

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6.2 One Coherent Method of Treaty Interpretation It will be seen that the main research question of this thesis is closely connected to the first of the two further questions which were posed in the introduction: whether there are numerous methods of interpretation in the law of treaties or one only. In response to that question this study has shown that the law of treaties knows one method: establishing as fully and fairly as possible the common intention of the parties. This method does not vary from field to field but is coherent and constant. In a sociological perspective it may be, however, that the institutional or political conditions in which different types of Tribunal operate may in various ways affect the interpretive outcomes. But this does not mean that the method they apply is not the same. When Special Rapporteur Waldock argued that the text of the treaty ought to have been given a more prominent place in the general rule of interpretation than ended up being the case,6 he relied in particular on the argument that the wording is all important because it is the most recent and most accurate expression of the intention of the parties. He agreed with what Huber had said in this regard: ‘le texte signé est, sauf de rares exceptions, la seule et la plus récente expression de la volonté commune des parties’.7 The wording is important because it may lead us to ascertaining the intention of the parties, not because it is somehow an end in and of itself. The words of the treaty text have a value only so long as they express the intention of the parties.8 In the event that the interpretative approach used should differ to some extent from the general method then that will be because the parties so intended. All this really shows is that—even if the approach to be taken does, at first look, differ from the method prescribed by the general rule of interpretation—it is still the intention of the parties that is controlling. This point is borne out by the language used by the International Court when it set out the possible ways in which interpretation of constitutional treaties might differ from the general approach. The starting point is the ordinary approach of the law of treaties. This is because ‘the legal basis of these conventions, and the essential thing that brings them into force, is the common consent of the parties’.9 The specific problems of interpretation to which such treaties might give rise could include issues owing to ‘the very nature of the organization created, the objectives which have been assigned to it by its founders, the imperatives associated with the effective performance of its functions’.10 This is ILC Ybk 1964/II, 52 and 56. M Huber (1952) 45 Ann de l’Inst 199; C de Visscher, Problèmes d’ interprétation judiciaire en droit international public (Pedone, 1963), 50. 8 Dissenting Opinion of Judges Anzilotti and Huber in Case of the SS ‘Wimbledon’ (1923) PCIJ Series A No 1, 15, 36. 9 Jointly Dissenting Opinion of Judges Guerrero, McNair, Read, and Hsu Mo in Reservations to the Convention on Genocide (Advisory Opinion) [1951] ICJ Rep 15, 32. 10 Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Request by WHO), (Advisory Opinion) [1996] ICJ Rep 66, 238 at [19]. 6 7

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nothing if not a focus upon the intentions of the parties. The intention of the founders of the UN Charter at San Francisco was to create a living institution, equipped with dynamic political, administrative, and juridical organs which were intended to be competent to interpret their own powers under a flexible constituent instrument in response to new challenges.11 In order fully to understand evolutionary interpretation, this book has argued, one has to accept that it is the case with many treaties that the treaty parties intended for there to be evolution. The treaty terms at issue in cases where international courts and tribunals arrive at evolutionary interpretations must, to quote Waldock, be understood to have been ‘intended to evolve in response to changes in legal or social concepts’.12 The study has also shown the importance of good faith when it comes to the interpretation of all types of treaty, and more specifically in relation to evolutionary interpretation. As was seen in Chapter 3, the meaning of a treaty for purposes of good-faith compliance with it may steer the interpretation in the direction of evolution.13 Evolutionary interpretation may be required by good faith. This is because good faith should be seen as requiring the establishment of that which the parties actually wanted to say, and not that which according to the wording it could seem as if they had wanted to say.14 The law of treaties puts a premium not upon form but substance, and this leads one to conclude that, contrary to what is sometimes assumed, the wording is not in the end necessarily the prevailing element in treaty interpretation.15 What is central in the method of treaty interpretation is that a convention is interpreted so as to be effective in terms of the intention of the parties. As has been shown in this book, this full and fair giving of effect is intimately linked to the principle of effectiveness, and it applies equally to all types of treaty.16 This was why the Tribunal in Iron Rhine, in reaching an evolutionary interpretation of the treaty terms at issue, held that ‘an evolutive interpretation, which would ensure an application of the treaty that would be effective in terms of its object and purpose, will be preferred’.17

11 T Franck, Recourse to Force: State Action against Threats and Armed Attacks (Cambridge University Press, 2002), 30–1. 12 H Waldock, ‘The Evolution of Human Rights Concepts and the Application of the European Convention on Human Rights’ in Mélanges offerts à Paul Reuter—Le droit international: unité et diversité (Pedone, 1981), 536. 13 Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) (Judgment) [2009] ICJ Rep 213 at [64]. Also: ILC Ybk 1966/II 222; H Waldock, ‘The Effectiveness of the System Set up by the European Convention on Human Rights’ (1980) 1 HRLJ 1, 3–4. 14 C Rousseau, Droit international public (3rd edn, Dalloz, 1965), 64. 15 Award in the Arbitration regarding the Iron Rhine (‘Ijzeren Rijn’) (Belgium v Netherlands) (2005) 27 RIAA 35, 65; Case Concerning the Auditing of Accounts between the Kingdom of the Netherlands and the French Republic Pursuant to the Additional Protocol of 25 September 1991 to the Convention on the Protection of the Rhine against Pollution by Chlorides of 3 December 1976 (Netherlands/France) (Rhine Chlorides Arbitration) (2004) 25 RIAA 267, (2004) 144 ILR 259, 292–3 at [63]. 16 Lighthouses Case between France and Greece (Judgment) (1934) PCIJ Series A/B No 62, 27; Dispute between Argentina and Chile concerning the Beagle Channel (1977) 21 RIAA 53, 231; Territorial Dispute (Libya/Chad) (Judgment) [1994] ICJ Rep 21, 23; Iron Rhine (Belgium v Netherlands) (n 15), 64. 17 Iron Rhine (Belgium v Netherlands) (n 15), 73.

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6.3 Evolving International Law The second further question which was posed in the introduction was whether there is in general international law a background rule that demands that one should take into account, in the interpretation of legal rules, the evolution of law. The point was made in Chapters 2–4 that while it is generally the case in international law that one places the principal emphasis on the intentions of the parties,18 this does not, however, make it redundant to look at the background rules. In the case of the issues examined here that means the rules of intertemporal law. Turning to these background rules is not equal to turning away from the controlling principle of the intentions of the parties. This is so because treaty interpretation under the general rule of interpretation is a process of progressive encirclement.19 The interpreter, in Huber’s words, goes about establishing the intention of the parties in the treaty text, in the disputed terms, in the whole of the treaty, in general international law, and in the general principles of law. It is by this concentric encirclement that the judge is able to establish the presumptive intention of the parties, in conformity with the fundamental demands of the fullness of international law and justice.20 Intertemporal issues depend in the first place upon the intention of the parties; where the intention of the parties does not provide an answer we look to intertemporal law for the resolution of temporal issues. Good faith acts as a guarantor of expectations legitimately held by one of the parties to the treaty; treaties must thus be interpreted in conformity with loyalty and reciprocal confidence.21 This ties in with the point made in the chapter about jurisdiction ratione temporis. The European Court made things unnecessarily complicated by conceiving of jurisdiction ratione temporis under the European Convention as one of evolution, when the same result could—indeed should—have been reached in reliance upon age-old doctrines of general international law, no recourse to evolution whatever being necessary.

6.4 A Redundant Concept? There are thus, more broadly, times when evolutionary interpretation is really wholly supererogatory; there is no need for it as the result to which it would have led already follows from the plain meaning of the text read in good faith. As was seen in Chapter 3, interpretation of treaties drafted in generic terms indeed comes close to giving rise to a situation where speaking of evolutionary interpretation makes 18 Temple of Preah Vihear (Cambodia v Thailand) (Preliminary Objections) (Judgment) [1961] ICJ Rep 17, 31. 19 R Gardiner, Treaty Interpretation (paperback edn, Oxford University Press, 2011), 141. 20 Huber (n 7), 200–1. 21 R Kolb, La bonne foi en droit international public: Contribution à l’ étude des principes généraux de droit (Presses Universitaires de France, 2000), 274–5.

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little sense. This point was made already by the Permanent Court in Employment of Women during the Night when, in a statement of principle regarding ‘provisions which are general in scope’, it stated that the fact that, at the time when the treaty was concluded, certain facts or situations were not thought of, which the terms of the treaty in their ordinary meaning were wide enough to cover, ‘does not justify interpreting those of its provisions which are general in scope otherwise than in accordance with their terms’.22 The same point, which in reality may leave little scope—or need—for evolutionary interpretation, was made, more recently, by the Panel Report in EU—Tariff Treatment of Certain Information Technology Products.23 The Panel ‘applied the customary rules of interpretation of public international law, as codified in Article 31 of the Vienna Convention’ and, in doing so, ‘examined the ordinary meaning of the terms’, and the Panel went on to note that the ‘generic terms’ had been used in the treaty, ‘to cover a wide range of products and technologies’.24 It does not seem out of place to suggest that good faith played an important role here—saying that LCD screens ought somehow not to be seen as being covered by the term ‘flat panel display devices’ would plainly have flown in the face of good faith. This puts the case squarely within the type of situation described by the Permanent Court in Employment of Women during the Night, that is to say, one in which the terms of the treaty in their ordinary meaning are wide enough to cover phenomena not thought of when the treaty was concluded.25 Particularly interesting therefore is that which the Panel went on to say in conclusion, namely that, in light of its conclusion on the ordinary meaning of the terms, it did ‘not consider it necessary to resort to any form of evolutionary interpretation’.26 In this way, and certainly differently from that which the European Court did in Šilih,27 the Panel in EU—Tariff Treatment of Certain Information Technology Products was able to arrive at the same result to which an evolutionary interpretation would have led in any event, by relying upon what it saw as the ordinary meaning of the terms. In fact the same could be said about Dispute regarding Navigational and Related Rights, where Judge ad hoc Guillaume held that the result which the International Court reached by way of evolutionary interpretation, could also be reached by way of ordinary interpretation of the wording. He found that ‘the

22 Convention concerning Employment of Women during the Night PCIJ (1932) Series A/B No 50, 377. 23 European Communities and its Member States—Tariff Treatment of Certain Information Technology Products, WT/DS375, 376, and 377/R, 16 August 2010. Also: I Venzke, How Interpretation Makes International Law: On Semantic Change and Normative Twists (Oxford University Press, 2012), 179, 233. 24 European Communities and its Member States—Tariff Treatment of Certain Information Technology Products (n 23) at [7.597]–[7.599]. 25 Convention concerning Employment of Women during the Night (n 22), 377. 26 European Communities and its Member States—Tariff Treatment of Certain Information Technology Products (n 23) at [7.600]. Cf China—Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/AB/R, 21 December 2009 [47], [396]. 27 Šilih v Slovenia App No 71463/01, judgment [GC] 9 April 2009.

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drafters of the 1858 Treaty intended to cover the transport for profit of passengers as well as of goods when they referred to navigation for commercial purposes’.28 It may even be that more often than not we are better off not talking about evolution or evolutionary interpretation at all. That only exoticizes something that may already follow clearly from the wording of the treaty.

28 Separate Opinion of Judge ad hoc Guillaume in Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) (n 13), 298.

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Index ACtHR and the evolutionary interpretation of treaties 11 Akande, D interpretation of constitutive instruments 37–8, 130 ‘text trumps intention’ 109 Andenas, M fragmentation and cross-references between international courts and tribunals 26 Questions relating to the Obligation to Prosecute or Extradite 116 Application and interpretation of treaties 15 Art 31 VCLT admissible means of interpretation 3 Art 31(4) VCLT supererogatory 98 clear meaning doctrine 15–6, 110 giving meaning to treaty terms 87 reliance on objective factors 83 sedes materiae of evolutionary interpretation 17 Beckett, E on what treaty text comprises 93 refusing to credit result in Danzig Railway Officials 95–6 Berman, F admissible means of interpretation 3 importance of consent 56 interpretation and application 15 interpretative approach of the European Court of Justice 39 supposed special tenets of interpretation 54 Bona fides, bona fide. See good faith Bourdieu, P 18–9 Brierly, JL as ILC Special Rapporteur 8, 86 existence or not of technical rules of interpretation 96, 98, 104 intention of the parties 8, 87, 96 Choice between contemporaneous or evolutionary interpretation 123–4, 126, 129 Combacau, J object and purpose and ‘constructive’ interpretation 113 Concentric encirclement treaty interpretation as 118, 144, 191 Concordant practice. See subsequent practice Consent approach of VCLT to 56 importance of in international law 56–7

Constitutive instruments of international organizations interpretation of 37–8, 130 Context structure of treaty as a whole 113 Convention. See treaties Covenant of the League of Nations intention behind 130 Crawford, J danger of extracting general propositions from decisions 110 ILC and the intertemporal law 161 intentions of the parties and the evolutionary interpretation of treaties 122–3 international law as an open system 50 international law as its own creation 99–100 LaGrand 50, 53–4 ‘meta-system’ underlying international law 55 Reparations for Injuries 132–3 sovereignty 47 unitary process of treaty interpretation 90 Criticism of ‘clear meaning’ rule 15–16, 110 Crucible approach to treaty interpretation 67 Customary international law. See International Court of Justice (ICJ) and Arts 31–33 VCLT as customary international law Danger of extracting general propositions from decisions 110 Difficulty of question of interpretation 59 Dutch courts 106 Dworkin, R 61–2 Dynamic interpretation. See the evolutionary interpretation of treaties ECHR. See European Convention on Human Rights ECtHR. See European Court of Human Rights Effectiveness applied by international courts and tribunals 8–9, 112, 190 principle of 8–9 Effet utile. See effectiveness. Environmental treaty-making part of general law of treaties 82 European Convention on Human Rights interpretative injunction in Preamble 86 not to be interpreted restrictively 9 European Court of Human Rights living instrument doctrine 11–14

210

Index

Evolutionary interpretation of treaties, the allegedly originating in human rights law 10–12 and good faith 64, 121 and subsequent practice 77 evolution of treaty terms 11, 121 Evolutive interpretation. See the evolutionary interpretation of treaties Existence or not of technical rules of interpretation 96, 98, 104 Fear of fragmentation 29–30, 54–5 Fiduciary duties and good faith 75 Fife, RE object and purpose taken together with intention 112, 114 the intertemporal law 160 Fitzmaurice, G as ILC Special Rapporteur 86–7 contemporaneous or evolutionary interpretation 123 ECHR not to be interpreted restrictively 9 importance of international law 19 in Belgian Police, on implicit recognition of intention 86 in Namibia, not addressing good faith requirements 75 the intertemporal law 146 treaties a source of obligation only 14 treaty interpretation and contract construction 104–5 Fitzmaurice, M objectivized intention of parties 2, 28, 92 Fragmentation cross-references between international courts and tribunals 26 fragmentation of international law avant la lettre 24–8, 31 Fragmentation of international law in law 48–50 in method 51–4 self-contained regimes 24, 28–31 systemic integration 48 French courts 100–1 Gaja, G object and purpose and ‘constructive’ interpretation 113 objectivized intention of the parties 8, 92 Gardiner, R application and interpretation of treaties 15 reference to VCLT rules 38 Gaulle, de C treaties being like roses and young girls 4 Generic terms 129 German courts 105 Good faith 65–6 and conservatism in treaty interpretation 71–4

and evolutionary interpretation of treaties 63–5, 67 and intention 70, 144 interpretation 67, 144 Greenwood, C on Bankovic 29 on danger of self-contained regimes 29 in Diallo (Compensation) 50 in Diallo (Merits) 53 in Whaling 81 Guillaume, G criticizing Territorial Dispute in Rhine Chlorides 111 ICJ’s main canon of interpretation focuses on parties’ intention 58 in Salini 21 Higgins, R in Iron Rhine 112 in Kasikili/Sedudu 62–3, 89 jurisdiction ratione temporis 180 on intention of parties 62–3, 89 on intention of parties and object and purpose 114 on the intertemporal law 160 reservations 134 state responsibility 138 Huber, M concentric encirclement 118, 144, 191 in Island of Palmas 47, 144–7 in Spanish Zone of Morocco Claims 10–11 ICJ. See International Court of Justice ICTY. See International Tribunal for the Former Yugoslavia ILC. See International Law Commission In dubio mitius 41–42 consignment to history 48 Indeterminacy and treaty language 19–22 Initially proposed general rule 88–9 Institut de droit international debates in 86–8, 90, 92 Lauterpacht’s work for, taken over by Fitzmaurice 86–7 Instrument of ratification of the ECHR by Slovenia 170–1 of the ECHR by the United Kingdom 171, 178 Intention not easily discernible 121 Intention of parties 8, 87, 89, 96, 144 and Arts 31–33 89–92 and good faith 70 and other international law 25 and relationship with consent 56–8 and the evolutionary interpretation of treaties 5, 122–3 and travaux préparatoires 60 dictionary definitions 59–60

Index ICJ’s main canon of interpretation focuses on parties’ intention 58 intention of parties evidently deterrent to evolutionary interpretation 120 objectivized intention of the parties 92, 131, 139 International Court of Justice (ICJ); and Arts 31–33 VCLT as customary international law 82 and the evolutionary interpretation of treaties 1–3, 58–9 and the intention of the parties 58, 76–9 International law and application 15, 17 as an open system 50 as its own creation 99–100 importance of 19 International Law Commission and the intertemporal law 161 Special Rapporteur on The Law of Treaties 8, 21, 86–8, 93, 121, 123 Special Rapporteur on Treaties over Time 122–3 VCLT debates 86–2, 97–9 International Organizations interpretation of constituent instruments of 37–8, 129–132 International Tribunal for the Former Yugoslavia (ICTY) 28 Interpretation art or science 188 as being the establishment of the objectivized intention of the parties 2, 8, 28, 92 as distinguished from revision 7, 70, 73 giving meaning to a text 116, 188 necessarily before application 15–17 of contracts 99–105 of statutes 105–9 Interpretation of different types of treaty 26, 37 Interpretative approach of the European Court of Justice 39 Intertemporal law 124, 143, 146–7, 160 Intertemporality 128 Jennings, R fear of fragmentation 29–30, 54–5 in dubio mitius 41 Island of Palmas 150 more international law ‘than this world dreams of ’ 54–5 what elements may properly be taken into account in interpretation 90 Jessup, P criticism of the intertemporal law 151–4 Jiménez de Aréchaga, E intertemporality 128 intention of parties 89, 144 jus cogens 164

211

Jurisdiction ratione loci, doctrine of as appearing in ECtHR jurisprudence 134–8 as appearing in ICJ jurisprudence 138 ratione temporis, doctrine of as appearing in ECtHR jurisprudence 169–4 as appearing in PCIJ and ICJ jurisprudence 172, 176–80 as appearing in UK courts’ jurisprudence 180–3 jus cogens superveniens 161–7 as codified in Arts 53 and 64 VCLT 161–5 early instances of 166–7 Kolb, R good faith 65 taxonomy of types of treaty for interpretative purposes 32–3 treaty interpretation and treaty revision 70–1 Koskenniemi, M 19–21 Lammasch, H jus cogens superveniens 166–7 Lampedusa, GT di change 56, 74 Lauterpacht, E interpretation of different types of treaty 26, 37 Lauterpacht, H as ILC Special Rapporteur 86–8 as rapporteur for the Institut 88, 90, 92, 97–8 criticism of ‘clear meaning’ rule 15–16, 110 fiduciary duties 75 good faith and intention 70, 144 good faith interpretation 67, 144 in dubio mitius 41–2 instrumental influence in the drafting of the ECHR 133–4 intention of the parties 96, 144 jus cogens superveniens 166 more international law ‘than this world dreams of ’ 54–5 real purpose of interpretation 89 reasonableness in interpretation 68 revealed tendencies in the life of the Organization 81 the intertemporal law 147 travaux préparatoires 84 treaty interpretation and contract construction 99 Letsas, G 13, 61–2 Literal approach and Territorial Dispute 111–13 literal interpretation must not defeat evident intentions 69–70

212 Living instrument doctrine 11–14 Living tree interpretation 106–7 Lowe, V literal interpretation must not defeat evident intentions 69–70 states making international law 155 treaty interpretation and abstract theorizing 59 McNair, AD difficulty of question of interpretation 59 ECtHR 133 fragmentation of international law avant la lettre 24–8, 31 generic terms 129 good faith 66 in Reservations to the Convention on Genocide 189 intention behind Covenant of the League of Nations 130 intention of the parties 96 interpretation and application 15 more international law ‘than this world dreams of ’ 54–5 sovereign equality of states 46 Spanish Zone of Morocco Claims 11, 140 The Law of Treaties 96 the intertemporal law 124 McNair’s The Law of Treaties 96 Means of interpretation admissible 91–2 Milanovic, M interpretation and application 17 More international law ‘than this world dreams of ’ 54–5 Mortenson, JD Travaux préparatoires 98 Nolte, G as Special Rapporteur on Treaties over Time 122–3 contemporaneous interpretation 124, 129 evolutionary interpretation and subsequent practice 77 on Rights of US Nationals in Morocco 123 Object and purpose and ‘constructive’ interpretation 113 importance of 113–15 in ICSID annulment cases 117 relation to intention of parties 114–15 taken together with intention 112, 114 whether interpretation can change it 120 Objectivized intention of parties 2, 8, 28, 92 On text as primary evidence of intention 21, 90, 96 Pacta sunt servanda 14, 34, 67 Palchetti, P

Index Art 31 and reliance on objective factors 83 intention of parties evidently deterrent to evolutionary interpretation 120 PCIJ. See Permanent Court of International Justice Permanent Court of International Justice and doctrine of jurisdiction ratione temporis 176, 179–80 and intention of parties 84–5 approach to interpretation of 94 Real purpose of interpretation 89 Reasonableness in interpretation 68 Redgwell, C environmental treaty-making part of general law of treaties 82 Reservations to treaties alleged differences in approach between human rights bodies and ICJ 134 Reuter, P distinction between contractual and constitutional treaties 34 relationship between object and purpose and intention 114 Rosenne, S intention of parties 89 intertemporal law 163 jurisdiction ratione temporis 175 Self-contained regimes 24, 49 Simma, B Art 31 as sedes materiae of evolutionary interpretation 17 evolutionary interpretation originating in human rights law 10–12 in Iron Rhine 112 self-contained regimes 24, 49 sovereignty 42, 47 and relation to in dubio mitius 40–2, 45–7 sovereign equality of states 46 territorial 146–7 Spirit of treaty 9, 39, 71, 149 States making international law 155 Subjective intention impossibility of in treaty interpretation 60 Subsequent practice and the evolutionary interpretation of treaties 76–82 revealed tendencies in the life of the Organization 81 supposed special tenets of interpretation 54 Tanzi, A sovereignty 42, 47 Tavernier, P intertemporal law 159–61 intertemporal law in Kasikili/Sedudu 158 intertemporal law in Western Sahara 153 jurisdiction ratione temporis 176

Index Taxonomy of types of treaty for interpretative purposes 32–3 ‘Text trumps intention’ 109 Time factors. See Intertemporal law Traités-contrats interpretation of 40–8 origins of concept 33–5 Traités-lois interpretation of 35–40 origin of concept 33–5 Travaux préparatoires 84, 98 confirming meaning 98 Treaties allegedly a source of obligation only 14 and abstract theorizing 59 and contract construction 99, 104–5 and treaty revision 70–1 as a source of law 14–15 as a unitary process 90 being like roses and young girls 4 intended to evolve 190

213

UK courts 106–9 ‘always speaking’ interpretation 108–9 Ulfstein, G consignment of in dubio mitius to history 48 United Nations Charter interpretation of 37–8, 129–32

Waldock, H Art 31(4) VCLT supererogatory 98 as ILC Special Rapporteur 21, 86–7, 93, 121, 123 contemporaneous or evolutionary interpretation 126 evolution of treaty terms 11, 121 evolutionary interpretation and good faith 64, 121 giving meaning to treaty terms 87 initially proposed general rule 88–9 intention not easily discernible 121 intertemporal law 143, 146 jus cogens superveniens 166 means of interpretation admissible 91–2 on text as primary evidence of intention 21, 90, 96 treaty intended to evolve 190 wish to give pre-eminence to treaty terms in interpretation 87, 189 World Trade Organization Arts 31–33 VCLT 83 evolutionary interpretation of treaties 192 intention of parties 83 WTO. See World Trade Organization

Vattel, E de ‘clear meaning’ 15–16, 110 Visscher, C de 89, 94, 114, 160

Yasseen, MK Art 31 VCLT 90–2, 121 jus cogens interveniens 163