The Evolutionary Interpretation of Treaties

240 Pages·2014·3.028 MB·English

by  Eirik Bjorge

THE EVOLUTIONARY INTERPRETATION
OF TREATIES

The Evolutionary
Interpretation of
Treaties
EIRIK BJORGE
1
1
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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 ‘subse-
quent agreement’, ‘subsequent practice’ and ‘evolutionary interpretation’ reverber-
ate. 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 construc-
tion. 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 inten-
tion of the parties—he incisively analyses an array of cases from a series of interna-
tional 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 ix
Table of Legislation xx
List of Abbreviations xxiii
1. Introduction 1
1.1 Research Question and Argument 1
1.2 Impermissibility of Courts Reconstructing Treaty Obligations 6
1.3 Outline of the Positions with Which this Book Takes Issue 9
1.4 Methodological Questions 14
2. Different Regimes, Different Methods of Interpretation? 23
2.1 Introduction 23
2.2 Constitutional Treaties, Human Rights Treaties,
‘Ordinary Treaties’ 31
2.3 Systemic Coherence in both Content and Method 48
2.4 Conclusion 54
3. The Means of Interpretation Admissible for the Establishment
of the Intention of the Parties 56
3.1 Introduction 56
3.2 Evolutionary Interpretation and Good Faith 63
3.3 Evolutionary Interpretation and the Intention of the Parties 76
3.4 Conclusion 139
4. The Intertemporal Law 142
4.1 Introduction 142
4.2 Normative Criticisms of the Principle of Intertemporality 150
4.3 Jus Cogens Superveniens: Peremptory Norms and Time 161
4.4 Conclusion 167
5. Evolutionary Interpretation, Or Not? Evolutionary Interpretation
and Jurisdiction Ratione Temporis 168
5.1 Introduction 168
5.2 Jurisdiction Ratione Temporis in the European Court of
Human Rights 169
5.3 The Traditional Doctrine of Jurisdiction Ratione Temporis 174
5.4 Conclusion 183
viii Contents
6. Conclusion: Evolution Intended 188
6.1 Intention of the Parties and Evolution 188
6.2 One Coherent Method of Treaty Interpretation 189
6.3 Evolving International Law 191
6.4 A Redundant Concept? 191
Bibliography 195
Index 209
Table of Cases
PERMANENT COURT OF INTERNATIONAL JUSTICE
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