Interpretation of treaties

1. Interpretation of treaties International law and the role of int’l legal scholars

2. ”Interpretation is a matter of art, not science” • = No understanding of a treaty can ever be rationally explained • Interpretation considered … • in a context of discovery • in a context of justification

3. The relevant int’l legal norms • Articles 31-33 of the VCLT • Means of interpretation • The ultimate end of the interpretation process: • To determine the intention of the treatyparties • Parties’ intention remains a rationalconstruct

4. Communicative assumptions • Treaty parties expressed their intention: • Arranging so that the treaty conforms to the lexicon, grammar and pragmatic rules of the language used for every authenticated version of it • Arranging so that no part of the treaty comes out as redundant • Arranging so that the application of the treaty results in the realization of its object and purpose • Favouring the sovereign freedom of states • Arranging so that the treaty corresponds to whatever can be inferred from the subsequent practice developed in its application, rather than to whatever can be inferred from its preparatory work

5. Rules of interpretation • Rule (1): If a treaty uses elements of conventional language (such as for instance words, grammatical structures, or pragmatic features), the treaty shall be understood in accordance with the rules of that language. • Rule (2): If one of the two possible ordinary meanings of a treaty provision makes a part of the treaty redundant, whereas the other ordinary meaning does not, then the latter meaning shall be adopted. • Rule (3): If one of the two possible ordinary meanings of a treaty provision helps attain the object and purpose of the treaty, whereas the other ordinary meaning does not, then the former meaning shall be adopted. • Rule (4): If one of the two possible ordinary meanings of a treaty provision helps favouring the sovereign freedom of states, whereas the other ordinary meaning does not, then the former meaning shall be adopted. • Rule (5): Rule (2) shall be applied prior to Rule (4), insofar as this does not either leave the meaning of the treaty ambiguous or obscure, or leads to a manifestly absurd or unreasonable result.

6. Articles 31-33 provide a framework • Help law-applying agents resolve many but not all issues of interpretation • Some issues still have to be resolved at the discretion of law-applying agents themselves. • The extension of a means of interpretation • The relationship between a means and an interpreted treaty • The priority of rules of interpretation

7. Back to the initial question: Is interpretation an art or a science? Not everyunderstanding of a treatycan be explained by reference to int’llawsimpliciter Does this make treaty interpretation an art? = Although an understanding of a treatycannot be explained by reference to int’llaw, can it still be rationallyexplained?

8. The extension of a means of interpretation • Article I: • “In Guinea, the boundary separating the Portuguese possessions from the French possessions will follow, in accordance with the course indicated on Map number 1 attached to the present Convention …” • Article III: • “In the Congo region, the boundary between Portuguese possessions and French possessions will follow, in accordance with the course outlined in Map number 2 attached to the present Convention, a line which will start …”

9. The relationship between means of interpretation and treaty • Art. 41 of the ICJ Statute: • “The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party”. • The initial preliminary draft of PCIJ Statute: • “In case the cause of the dispute should consist of certain acts already committed or about to be committed, the Court may, provisionally and with the least possible delay, order adequate protective measures to be taken, pending the final judgment of the Court.”

10. The ICJ • “The fact that the Court does not itself have the means to ensure the execution of orders made pursuant to Article 41 is not an argument against the binding nature of such orders.”

11. The priority of two rules of interpretation • Parties expressed their intention arranging: • So that the meaning of Article 3 continuously corresponds to whatever can be inferred from the subsequent practice developed in the application of this provision, in this case the national penal policy of the European states. • So that Article 3 comes out as logically consistent with Article 2.

12. The ECtHR • “Protocol No. 6 shows that the intention of the Contracting Parties as recently as 1983 was to adopt the normal method of amendment of the text in order to introduce a new obligation to abolish capital punishment in time of peace and, what is more, to do so by an optional instrument allowing each State to choose the moment when to undertake such an engagement.”

13. The role of the int’l legal scholar • International law leaves law-applying agents some scope of discretion • How should this discretion be used?

14. ”The Legal Rationalist” • A principled decisionshouldalways be sought • A meaning is legally correct if it can be justified within the framework of Articles 31-33 of the VCLT, and when the law is not sufficient, scholars should continue their search for the intention of the parties

15. ”The External Observer” • Law exists as a matter of fact • Scholars should provide descriptive legal statements only • A meaning is legally correct and legitimate if it can be justified within the framework of Articles 31-33 of the VCLT

16. ”The Legal Activist” • Law is a means for the realization of some particular political agenda • A meaning is legally correct if it can be justified within the framework of Articles 31-33 of the VCLT, but if this meaning is not legitimate the scholar has the duty to bring arguments to further her political agenda

17. ”The Legal Idealist” • Justice is an essential quality of law • A meaning is legally correct only if it is consistent with the moral values that justice stands for in the conceptual world assumed by the scholar herself

20. Relevant hierarchies Art. 31 § 4 Art. 32

21. Sophie Vidal Martins Case • ICCPR, art. 2 § 1: • ”Each State Party undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Convention” • ICCPR, art. 12 § 4: • ”No one shall be arbitrarily deprived of the right to enter his country.”

22. Example • ECHR art. 10 § 1: • ”Everyone has the right to freedom of expression.” • ICCPR art. 19 § 2: • ”Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information, and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

23. Example • Genocide Convention art. 1: • ”The Contracting Parties confirm that genocide … is a crime under international law which they undertake to prevent and to punish.”