magnify
Home Archive for category "Treaty Law"

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.

Read the rest of this entry…

Print Friendly
 

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.

Read the rest of this entry…

Print Friendly
 

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.

Read the rest of this entry…

Print Friendly
 

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.

Read the rest of this entry…

Print Friendly
 

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.

Read the rest of this entry…

Print Friendly
 

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.

Read the rest of this entry…

Print Friendly
 

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.

Print Friendly
 

Does 19 + 11 Equal 30?: the Nitty Gritty of the Law of Treaties and the Kampala Amendment to the Rome Statute on the Crime of Aggression

Published on November 27, 2014        Author: 

Sometimes, it seems that it is the reality of international law that provides one with questions of treaty law that probably even a sophisticated international law professor would have had problems inventing.

On November 19, 2014, San Marino became the 19th State to have ratified the amendments to the Rome Statute on the crime of aggression. At the same time, Art. 15bis, para 2 and Art. 15ter, para. 2 of the Rome Statute in identical terms provide that “[t]he Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties” and further provided that under Art. 15bis, para. 3 and Art. 15ter, para. 3 respectively, a decision has been adopted by the Assembly of States Parties to activate the Court’s jurisdiction concerning the crime of aggression, such decision to be taken at the earliest in 2017.

What is worth noting, however, is that by now there are also eleven States, namely Cabo Verde, Côte d’Ivoire, Grenada, Guatemala, the Maldives, the Phillipines, St. Lucia, Tunisia, Vanuatu, Moldova and the Seychelles that have ratified the Rome Statute after the Kampala amendment on the crime of aggression was adopted. All of those States, when ratifying the post-Kampala Rome Statute, did so without expressing an intention not to be bound by the treaty as amended. This raises the intriguing question whether 19 + 11 equal 30, i.e. whether these new contracting parties ought to be counted towards the quorum required, as mentioned, by Art. 15bis, para 2 and Art. 15ter, para. 2 of the Rome Statute in order for the Court to exercise its jurisdiction.

Read the rest of this entry…

Print Friendly
 

Keep Calm and Call (no, not Batman but …) Articles 31-32 VCLT: A Comment on Istrefi’s Recent Post on R.M.T. v. The UK

Published on June 19, 2014        Author: 

Panos MerkourisPanos Merkouris, LL.M (Athens) 2004; LL.M (UCL, London) 2005; Dr. iur. (Queen Mary, London) 2010 is Lecturer in Public International Law in the Faculty of Law at the University of Groningen.

In a recent post on R.M.T. v. The UK: Expanding Article 11 of the ECHR Through Systemic Integration’ Kushtrim Istrefi raises important issues with respect to the application and content of Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT). Although I agree with the general conclusion that Article 31(3)(c) is not a panacea and should not be used as a backdoor for judicial activism, I think it pertinent to highlight certain issues as to the manner in which this conclusion is reached and in particular regarding the presumed content of Article 31(3)(c).

Firstly, let me clarify that this post is not about evolutive interpretation to which the ECtHR seems to be partial. Nonetheless, I agree with Eirik Bjorge’s comment to the above post, that this idea of ECHR as a living instrument is included in the preamble (‘…further realisation of human rights and fundamental freedoms’). Furthermore, the connection of evolutive interpretation with Article 31(3)(c) is particularly evident in ‘generic terms’. A ‘generic term’ can be understood either as ouverture du texte or renvoi mobile (Georgopoulos (2004) 108 RGDIP 132-134). In the former case, the openness of the term allows the content of the norm to change alongside the factual situation contemplated (‘evolution of fact’). Such an interpretation probably falls under Article 31(1). In the case of renvoi mobile, the norm, whenever interpreted, reflects the ‘evolution of the law’. As the law changes so does the content of that norm. In this case, evolutive interpretation could be understood as also being based on Article 31(3)(c).

Kushtrim’s main argument is that because ILO Convention No. 87 and the European Social Charter (ESC) are not binding on all member States of the Council of Europe (CoE), they probably do not fall within the scope of Article 31(3)(c). This conclusion is based on a restrictive interpretation of Article 31(3)(c), which holds that the Article should be read as ‘any relevant rules of international law applicable in the relations between the parties to the treaty’ and not expansively, as ‘…between the parties to the dispute’. This restrictive interpretation allegedly finds support in EC-Biotech:

7.68… This understanding of the term “the parties” leads logically to the view that the rules of international law to be taken into account in interpreting the WTO agreements at issue in this dispute are those which are applicable in the relations between the WTO Members…

7.69 … Accordingly, based on our interpretation of Article 31(3)(c), we do not consider that in interpreting the relevant WTO agreements we are required to take into account other rules of international law which are not applicable to one of the Parties to this dispute.

With respect to this restrictive interpretation I would like to raise the following three issues: Read the rest of this entry…

Print Friendly
 
 Share on Facebook Share on Twitter
Comments Off

R.M.T. v. The UK: Expanding Article 11 of the ECHR Through Systemic Integration

Published on May 12, 2014        Author: 

Court building exterior - autumn Medium PortraitOn 8 April 2014, the ECtHR rendered a decision in the RMT v. the UK. The case represents an example of using systemic integration as a tool of judicial activism. In applying Article 31(3)(c) VCLT, the Court expanded rights under Article 11(1) ECHR through international instruments that were not binding on all parties to the Convention. This approach adds to the perplexity of the effects of the principle of systemic integration.

In the RMT case, the ECtHR responded to the novel question of whether secondary action—or the so-called sympathy strike that is performed by a trade union in support of the cause of another group of strikers involved in a dispute—comes within the scope of Article 11(1) of the Convention. The Court ruled in the affirmative by relying exclusively on international instruments that recognize secondary action as part of trade union freedom. Although the Court considered that a different outcome could have been reached if one read the wording of Article 11(1) on its own (para 76), it deemed that

the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with… any relevant rules of international law applicable in relations between the parties, and in particular the rules concerning the international protection of human rights.

Referring to Article 31(3)(c) VCLT, the Court utilized the International Labour Organization (ILO) Convention No. 87 and the European Social Charter (ESC) to conclude that secondary action formed part of Article 11(1) of the Convention. The Court viewed that such reception of international law was in line with the Demir and Baykara judgment, which read in the relevant part as follows:

[t]he Court, in defining the meaning of terms and notions in the text of the Convention, can and must take into account elements of international law other than the Convention, the interpretation of such elements by competent organs, and the practice of European States reflecting their common values.

Against that background, the Court continued, Read the rest of this entry…

Print Friendly