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Home Archive for category "EJIL Book Discussion"

A Response to the Discussants on the Evolutionary Interpretation of Treaties

Published on December 18, 2014        Author: 

I begin by saying that I am extremely grateful to the contributors to this book symposium for kindly having taken the time to read my book The Evolutionary Interpretation of Treaties, and to commit to writing their very stimulating views of it. Given the richness of the comments provided by my colleagues, it would I think be impertinent for me to do more, at this stage, than to try to set out the reflections that their comments have prompted with me.

In writing my book, one of the things I tried to do was to stress the striking interpretative potential with which the Vienna Convention rules are pregnant. It is worth remembering that when counsel for the United Kingdom in what Lord Hoffmann in Matthews [2003] UKHL 4 at [28] referred to as ‘the great case of Golder’ tried to reign in the European Court of Human Rights, they did so by exhorting the Court that it was bound by the rules set out in Articles 31–33 of the Vienna Convention. It is safe to say that the strategy backfired.

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Running in Circles: A Comment on Bjorge’s Evolutionary Interpretation of Treaties

Published on December 18, 2014        Author: 

t was a pleasure to read Eirik Bjorge’s The Evolutionary Interpretation of Treaties. The book is well written and exceptionally well researched. Eirik demonstrates nothing less than an encyclopedic knowledge of the relevant case law and scholarship, and has seemingly read every single bit of text that the International Law Commission and its rapporteurs have produced on the question of interpretation. Eirik’s book is beyond question the most comprehensive examination to date of the issue of evolutionary treaty interpretation, and it fills an important gap in the literature.

While the virtues of the book are many, I cannot help but feel that, had Eirik chosen a different methodological path, the book could have been significantly more illuminating with regard to the nature of the phenomenon of evolutionary interpretation. This is not because I take issue with the main thrust of Eirik’s argument, namely that evolutionary interpretation is perfectly compatible with the rules of interpretation set out in Articles 31-33 of the Vienna Convention on the Law of Treaties. Yes, it is – at least partly because the Vienna ‘rules’ are so broad and flexible that one can do (almost) whatever one wants with them.

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Is Evolutionary Interpretation Only A Matter of Finding the Parties’ Intentions?

Published on December 17, 2014        Author: 

The main thesis in Eirik Bjorge’s The Evolutionary Interpretation of Treaties is that evolutionary interpretation depends on the intention of the parties to a treaty and results from applying Articles 31 to 33 of the 1969 Vienna Convention on the Law of Treaties (‘Vienna Convention’).

Few would probably dispute that treaty interpretation always involves the intention of the parties. However, the debate – to which this monograph unquestionably is a valuable contribution – continues on where that intention is to be found. Is the controlling element the text of a treaty, its object and purpose (in whatever manner that might be established), its origins or some other feature? It would appear that there continue to be many perspectives on what the concept of the intention of the parties means and where it can (or should) be found.

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A Note on Bjorge’s The Evolutionary Interpretation of Treaties

Published on December 16, 2014        Author: 

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 the 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.

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Discussing the Evolutionary Interpretation of Treaties

Published on December 16, 2014        Author: 

Treaty interpretation: the role of party intention and good faith

I very much appreciated reading Eirik’s book. It is certainly a valuable contribution to the literature on treaty interpretation. Using the limited space available in a blog post, I will pick up on an idea introduced by Eirik in Chapter 3 – that there might be something of an interplay between evolutionary interpretation, party intention, and good faith. To use Eirik’s own words, “[e]volutionary interpretation may … be required by good faith”. Myself, I would describe the interplay as follows:

Articles 31-33 confer upon interpreters a discretion. For example, they leave to interpreters to decide whether in the interpretation of a treaty, the ordinary meaning of its terms should be defined based on language conventions that existed at the time of the conclusion of the treaty or conventions that exist at whatever time the treaty is interpreted. This discretion is not absolute, while treaties are always to be interpreted in good faith. To interpret a treaty in good faith is tantamount to interpreting it for a purpose, the purpose being to establish the common intention of its parties. Thus, the principle of good faith sets a limit to any discretion exercised by an interpreter under Articles 31-33. For example, although the choice between the historical and current-day ordinary meaning cannot be justified by direct reference to any rule of international law, in making this choice, the interpreter shall continue his/her search for the intention of the treaty parties.

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Introducing The Evolutionary Interpretation of Treaties

Published on December 15, 2014        Author: 

image windows Den Haag 0061 (NL)(1)Although the issue may have become obscured at some point after the drafting of the Vienna Convention on the Law of Treaties, it is increasingly acknowledged in international law that the goal of treaty interpretation is, as the International Law Commission’s first Special Rapporteur on the law of treaties JL Brierly put it, ‘to give effect to the intention of the parties as fully and fairly as possible’ (The Law of Nations (OUP, 1928) 168; A Clapham, Brierly’s Law of Nations (7th edn, OUP, 2013) 349).

The question of the intention of the parties in treaty interpretation might be thought to take on a particular interest in connection with the evolutionary interpretation of treaties. Though there is no standard definition of the term ‘evolutionary interpretation’, the upshot is that the meaning of treaty terms may be liable to change over time, without the specific intervention of the parties to amend or modify the treaty terms.

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Discussion of Eirik Bjorge’s The Evolutionary Interpretation of Treaties

Published on December 15, 2014        Author: 

The Evolutionary Interpretation of TreatiesThis week we’ll be hosting a discussion of Eirik Bjorge’s recent book with OUP, The Evolutionary Interpretation of Treaties.

Eirik Bjorge is the Shaw Foundation Junior Research Fellow at Jesus College, University of Oxford. Eirik has, among other things, been pensionnaire étranger at École normale supérieure, visiting researcher at Sciences Po and the Max Planck Institute for Comparative Public Law and International Law, and stagiaire at the Conseil d’État and the European Court of Human Rights. He has taught at Oxford and at Sciences Po. He is the author of The Evolutionary Interpretation of Treaties (OUP, 2014) and Domestic Application of the ECHR: Courts as Faithful Trustees (OUP, 2015).

Eirik’s book will be discussed by Ulf Linderfalk, James Crawford, Isabelle Van Damme, and Marko Milanovic. Eirik will start off the discussion with an introduction, and wrap it up with a response to the four discussants. We are grateful to all of them for their participation.

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Response to Roth, D’Aspremont and Fox

Published on November 19, 2014        Author: 

I formulated the central thesis of this book at the height of the ‘liberal confidence’ that was witnessed during the Bush and Blair administrations. At that time it seemed that a new world order was emerging and that a serious attempt was underway to fundamentally reorganise the political and legal structure of the world order. In short, what we were witnessing was a clash of normative orders between associations of states that I refer to as the international society and the international community.

Obviously, matters have become much more complex in recent years – in light of the rise of international terrorism, the global economic downturn, the emerging multipolar world etc – and much of the hype and hubris that once surrounded Bush and Blair’s ‘liberal confidence’ during the 1990s has now substantially faded. But I argue that although the liberal project has changed in form it has not changed in substance, and I continue to stand by my central thesis – namely, that the contemporary world order comprises opposing normative orders (the international society and the international community) and that it is the interface between these associations that provides a convincing explanation for why violations of international peace and security occur.

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A Comment on Russell Buchan’s “International Law and the Construction of the Liberal Peace”

Published on November 18, 2014        Author: 

Few would deny the momentous changes underlying Russell Buchan’s thesis about an emerging “international community.” After the end of the Cold War, international law came to accept ideas of governmental legitimacy glaringly at odds with the regime-agnosticism of earlier eras. New and newly robust norms came to address both how national leaders are chosen (the legitimacy of governments themselves) and the permissible range of governmental actions toward citizens (the legitimacy of government policies, primarily as they affect human rights). These norms clearly pointed to a liberal democratic mode of governing.

Where Buchan parts company with previous analyses of these phenomena, including my own, is his view that these changes reveal an entirely distinct “international community” acting within the broader “international society.” My comments on his fascinating new book will suggest this hypothesis is unnecessary to explain these revolutionary developments and carries with it a substantial risk of both reductionist reasoning and undermining the very norms he examines.

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Democracy and International Law according to Russell Buchan: Prescribing under the Guise of Explaining?

Published on November 17, 2014        Author: 

Russell Buchan’s Lieber Prize-winning book entitled International Law and the Construction of the Liberal Peace (hereafter The Construction of the Liberal Peace) rests on a courageous enterprise. Indeed, it takes a lot of courage, especially given the dominant cynical mindset to which many international lawyers have succumbed, to seek to vindicate the democratic peace theory and, with it, the democratic legitimacy thesis. Buchan’s The Construction of the Liberal Peace also stands out for being elegantly written, aesthetically designed and conceptually strong as well as for denoting an impressive knowledge of international law and international relations theory.

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