EJIL’s Book Review Editor, Isabel Feichtner, invited our Board members to reflect on the books that have had a significant impact on them this year. In the following days they will present their selections here on EJIL Talk! They write about books, not necessarily published in 2014, but read or reread this year, and which they found inspiring, enjoyable or consider ‘must reads’ for their own work or international law scholarship in general. These editors’ choices are not intended to be a prize in disguise, but rather are personalized accounts of the reading experiences of our Board members. We begin with our Editor-in-Chief’s selection.
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  UKHL 4 at  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.
It 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.
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.
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.
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.
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.
This 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.
Ireland v United Kingdom was the first inter-state case before the European Court of Human Rights (ECtHR). Decided in 1978, it revolved around internment in Northern Ireland and the techniques used by British forces when interrogating internees at the height of ‘The Troubles’. As regards the treatment of the internees, the Court found that the use of the so-called ‘Five Techniques’ amounted to inhuman and degrading treatment, but did not meet the threshold of severity to attract the “special stigma” of a torture finding against the United Kingdom. Since then, the Court has confirmed that what constitutes ill-treatment of sufficient severity to be deemed ‘torture’ under Article 3 can be subjected to the ‘living instrument’ doctrine (Selmouni v France), and various scholars have remarked that, should the Court be confronted with the same facts now as it was in Ireland v United Kingdom, a finding of torture would be handed down. Now, following investigative journalism by RTÉ (the Irish national broadcaster), new evidence has come to light that may well test this supposition.
In my last post on the Jaloud v. Netherlands case, I looked primarily at the bottom line of the case and what it will mean for the future. In this post, however, I would like to try to clarify the conceptual framework of jurisdiction, attribution and responsibility (which Aurel also looked at in his post) that the Court used (or should have used) in the case. The key parts of the judgment in that regard are paras. 140-155, which I will not reproduce in full here, plus the concurring opinion of Judge Spielmann, joined by Judge Raimondi.
It is clear from even a cursory read of the Spielmann opinion (as well as the concurring opinion of Judge Motoc, who writes in opposition to the two other Judges), that the judges of the Grand Chamber found the question of the relationship between the Article 1 ECHR concept of state jurisdiction, and general international law concepts such as attribution of conduct and responsibility for wrongful acts, to be particularly vexing. Judging by the language used, there must have been quite the internal debate. Judges Spielmann and Raimondi found the Court’s use of the attribution concept and its references to the case law of the ICJ (para. 95-97) and the ILC’s Articles on State Responsibility (para. 98, quoting articles 2, 6 and 8) to have been exceptionally objectionable, indeed ‘ambiguous, subsidiary and incomprehensible.‘ For the two Judges, attribution was a ‘non-issue’ in the case, which the Court should have avoided:
There was therefore no need to examine the non-issue of “attribution”, which is completely separate from the question of “jurisdiction”. More fundamentally, the Court should in any event be careful not to conflate the notions of jurisdiction under Article 1 with the concept of State responsibility under general international law. Efforts to seek to elucidate the former by reference to the latter are conceptually unsound and likely to cause further confusion in an already difficult area of law.
Contrary to the two Judges, I will try to show that attribution was, in fact, a central issue in the case, and that the Court’s approach, including references to the ILC’s work on state responsibility, was generally sound. However, I will also show that the Court could have been clearer in explaining what it was actually doing, which would have had the salutary effect of avoiding potentially confusing points for future cases. In fact, at least to an external observer, the divide between the majority and the two Judges is not as great as it might first seem, and the important conceptual points that they raise in the separate opinion can and should be adequately addressed.