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

Panos 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:

• theaforementioned EC-Biotech paragraphs when read in context reveal that the Panel did not adopt a restrictive interpretation; furthermore the Panel’s alleged restrictive interpretation is somewhat self-contradictory;
• later case-law of the WTO Appellate Body (AB) has debunked any such notions of Article 31(3)(c) having to be read restrictively;
• the juridical practice, especially of international human rights courts, has long shown a propensity towards utilizing other ‘relevant rules’ which are applicable in the relations between the parties to the dispute (and sometimes even of only one or none of the parties to the dispute).

EC-Biotech: Not the Poster-Child of Restrictive Interpretation It Is Cracked Up to Be

First, in EC-Biotech the Panel only held (para.7.69) that according to its interpretation Article 31(3)(c) should not be read as rules applicable to any one (but not all) of the parties to the dispute. Para.7.68 does seem to indicate that the Panel will lean toward an interpretation disallowing use of rules applicable to the parties to the dispute, but not all WTO members. In the end, however, the Panel does not decide that issue. Just four paragraphs later the Panel explicitly points that out:

7.72 we need not, and do not, take a position on whether in such a situation [of rules applying to all parties to the dispute but not all WTO members] we would be entitled to take the relevant other rules of international law into account.

Additionally, the Panel’s interpretation seems to be somewhat self-contradictory. The Panel cannot and does not apply the VCLT (Art. 3.2 DSU). What it does, is interpret the customary law equivalent of Article 31(3)(c) (Article 31(3)(c) CIL). In doing so it resorts to the VCLT as a ‘relevant rule’. However, neither all WTO members nor even some the parties to the dispute (USA and EU) are parties to the VCLT. Consequently, the EC-Biotech, seems to apply the expansive interpretation which it later on rejects.

Debunking the Mythos of the EC-Biotech Case

The above remarks are further reinforced by later WTO case law. In EU – Large Civil Aircraft of 2011 the Appellate Body (AB) considered (para.845) that the interpretation of the term ‘the parties’ is

a delicate balance [that] must be struck between, on the one hand, taking due account of an individual WTO Member’s international obligations and, on the other hand, ensuring a consistent and harmonious approach to the interpretation of WTO law among all WTO Members.

This leaves the question still open, perhaps even allowing for an understanding of Article 31(3)(c) as meaning ‘any of the parties to the dispute’, as long as this delicate balance is struck. The AB Report does not offer much guidance on how this is to be achieved, but based on the AB’s analysis in the following paragraphs it seems, and rightly so according to this author, to switch the focus from what is meant by ‘the parties’ to what is meant by the term ‘relevant’.

Similarly, in R.M.T v. UK even Judge Wojtyczek, who in his Concurring Opinion criticized the Court’s application of Article 31(3)(c), does not unequivocally come out in favour of a restrictive interpretation:

… [Article 31(3)(c)] should not justify referring to rules that bind only some of the States Parties to the [ECHR] in order to align its content with those rules, without duly taking into account the wording of the provisions under interpretation. (emphasis added)

Essentially, Judge Wojtyczek is not arguing that rules not binding all ECHR parties should not be taken into account under Article 31(3)(c), but that such rules should satisfy certain conditions and strike the necessary balance (as per EU – Large Civil Aircraft). In sum, that these rules should be ‘relevant’ (see also para.6).

Not a Novelty in ECtHR Jurisprudence

Referring to other treaties when only the parties (or even one of the parties) to the dispute are parties to it, is not a novel approach. I could cite a long list of case law to that effect, both pre-VCLT and post-VCLT. However, I will raise only two brief points with respect to the ECtHR, since the point of departure of this discussion was R.M.T. v. UK. First, as in EC-Biotech, the ECtHR has often resorted to the VCLT as a ‘relevant rule’ in order to interpret the CIL rules of interpretation. It does this despite the fact that several Council of Europe (CoE) members are not parties to the VCLT (France, Norway, Iceland, San Marino, Romania, Moldova, Azerbaijan and Monaco). So in this context they are applying Article 31(3)(c) CIL expansively.

Second, there is also abundant jurisprudence on reference to treaties other than the VCLT. On the ECtHR’s website there is a 2011 Research Report on ‘The Use of Council of Europe Treaties in the Case-law of the ECtHR’, including the European Social Charter referred to in R.M.T. v. UK. The ECtHR has also referred to the United Nations Convention on the Law of the Sea and the Convention on Maritime Search and Rescue (Hirsi Jamma and others v. Italy), ILO Conventions (ASLEF v. UK, Graziani-Weiss v. Austria, van der Mussele v. Belgium), to name but a few treaties in a long and ever-growing list.

Similarly, the Inter-American Court of Human Rights also casts a wide net (ILO Conventions, International Covenant on Civil and Political Rights, Inter-American Convention against Torture, Convention on the Rights of the Child). It explains this by referring to a corpus juris of international human rights, within which the American Convention must be interpreted (e.g. Ituango Massacres Case, para.157; Right to Information on Consular Assistance, paras.112-115; “Street Children”, paras.193-194).

So what can be concluded from the above? First, that reading the term ‘parties’ of Article 31(3)(c) VCLT as meaning ‘parties to the treaty’ is far from established practice. If anything, pre- and post-VCLT jurisprudence seems to indicate the opposite, with courts having referred to other treaties where only the parties to the dispute (and sometimes when one or none of the parties to the dispute) were parties to it. While I am not arguing in support of such an expansive interpretation of Article 31(3)(c) in all cases, I raise the above issues in order to highlight two points. First, the restrictive interpretation is far from the only logical choice. Second and more importantly, this debate on the proper interpretation of ‘parties’, diverts our attention from what is actually the most important element of Article 31(3)(c) and should be the main focus of our criticism of judgments of international courts: the term ‘relevant’.

The Importance of Relevance

Whenever courts have explicitly or implicitly applied Article 31(3)(c) VCLT or CIL, it is striking how little attention they have given to determining the probative value -the ‘relevant’ nature- of the rules to which they refer. The WTO AB’s decision in EU – Large Civil Aircraftseems to signal a gradual awareness of the importance of the term ‘relevant’ (para.846) and an emerging realization that this is going to be the main battlefield as to what concerns the proper application and functioning of Article 31(3)(c). However, the term ‘relevant’ is not a complete enigma. Indications of when rules are ‘relevant’ can be found scattered throughout international case law. When determining relevance, international courts seem to apply various manifestations of what I call the proximity criterion. The proximity criterion represents how proximate, how close, the treaty being interpreted is to the treaty being referred to via Article 31(3)(c). This criterion has four different manifestations:

• Linguistic proximity: how similar the terms/provisions used are in the two treaties
• Subject-Matter proximity: how similar their object of regulation
• Actor (Parties) proximity: how many parties are common between them
• Temporal proximity: how much time has lapsed between their respective entry into force

All these manifestations are complementary to one another, and they function as communicating vessels. A great degree of proximity of one manifestation can compensate for more distanced proximity of another manifestation. This also accounts for why no single interpretation of the term ‘parties’ can emerge from the existing case law. The reason is not that courts end up with conflicting interpretations of this term. The proximity criterion reveals that such conflicts are non-genuine. The different solutions given are due to the different degrees of ‘relevancy’ of the treaties (how much they satisfy the four different manifestations of the proximity criterion).

Consequently, the ECtHR in R.M.T. v. UK misapplies Article 31(3)(c), but not because it uses ILO Convention No. 87, but because it does not juridically establish why that Convention is relevant. Courts and tribunals commonly fail to take this essential step in their reasoning. In the present case, the ECtHR simply placed the ILO Convention under the Section ‘Relevant International Law’, and laconically stated (para.76):

…It would be inconsistent with this method for the Court to adopt in relation to Article 11 an interpretation…that is much narrower than that which prevails in international law.

Concluding Remarks: Articles 31-32 (VCLT & CIL) as Batman’s Utility Belt

Many authors argue that Article 31(3)(c) is not a panacea, and they are correct in that assertion. On the other hand, the interpretative process taken as a whole, as enshrined in Articles 31-32 (VCLT and CIL), was intended to always lead to a single interpretation. As Batman always seems to have in his utility belt a gadget that can help him get out of any predicament, so do Articles 31-32 allow judges to always arrive at an interpretation no matter how hard the case, and avoid having to pronounce a non liquet.

It is true that this raises objections that in the ocean of available material any judge can find a statement reinforcing a predetermined conclusion, giving judges legislative power. However, that is a criticism of the judges themselves and their misapplication of the rules. It should not colour our understanding of the content of the rules themselves. As Lauterpacht argued, the fact that one can find material in support of his/her arguments anywhere should not mean that the number of materials should be restricted ab initio. This is exactly the role of the judge, to determine the probative value of each document.

To say that a restrictive interpretation of Article 31(3)(c) would offer greater legal certainty and act as a buffer from judges exercising a legislative power fails to take into account that even if such rules or treaties are deemed to fall outside the scope of Article 31(3)(c) they could still be taken into account under Article 32. What is important is ensuring that judges properly identify in their decisions the probative value of these documents—their ‘relevance’. The objection should not be to the use of these rules under Article 31(3)(c), but to the failure to establish their evidentiary value (either under Article 31 or 32). Or simply stated in pop-cultural fashion: Keep Calm and Call (the Proper Application of) Articles 31-32 VCLT.