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The Law of Treaties Beyond the Vienna Convention edited by Cannizzaro, Enzo (17th February 2011)

Part II Interpretation of Treaties, 7 Evolutionary Interpretation of Treaties: Between Memory and Prophecy

Pierre-Marie Dupuy

From: The Law of Treaties Beyond the Vienna Convention

Edited By: Enzo Cannizzaro

Subject(s):
Vienna Convention on the Law of Treaties

(p. 123) Evolutionary Interpretation of Treaties:

Between Memory and Prophecy

‘Every legal order is a challenge in time, an effort to conserve the social order that it establishes.’1 This opinion by a great internationalist and legal philosopher, Michel Virally, appears to echo an observation made by Georges Ripert, who considered ‘man to require guidance from a set of general and permanent rules’.2 Both authors consider a quest for stability to be an inherent characteristic of Law, written here with a capital L! The Ten Commandments were already written in stone.3

However, to place too much emphasis on stability, albeit an essential component of every legal order, would neglect the temporal dimension of law. Moreover, stability presupposes adaptability; durability requires change. The Darwinian theory of evolution also applies to norms, which as Serge Sur has aptly noted have an almost organic life: ‘they develop and survive if they are adapted to their environment and they are able to evolve with it’.4 As a consequence, in addition to the structural solidity necessary for its longevity, law is made up of a series of adjustable variables, i.e. normative devices that serve to provide the flexibility necessary for the survival of law.

Although the notion of time is sometimes presented at conferences as posing difficulties for the law,5 the legal scholar need not feel at a loss with the notion of time on the basis that it is one of the most fundamental philosophical problems. Time is a special subject of inquiry in legal philosophy because it is everywhere, (p. 124) including in the law. It permeates legal structures and relentlessly impacts upon them.6

Legal thinking and legal practice in contentious cases bring this to light on a daily basis. Two examples may be cited in this respect. First, the rule that sometimes reflects the ‘fundamental norm’ in a Kelsenian sense, pacta sunt servanda, can neither be understood nor applied except on the basis of a restrictive condition: rebus sic stantibus! Treaty obligations are maintained only to the extent that the facts upon which they are premised remain sufficiently constant. However, even if the preceding rule still remains difficult to plead in international proceedings, what is sure is that, as already asserted by Heraclitus of Ephesus, things never remain as they were. Secondly, facts—and internationally wrongful acts in particular—are notably categorized on the basis that they are either ‘immediate’ or ‘continuing’. Furthermore, international practice demonstrates that there are few tribunals the jurisdiction of which is not challenged on the basis of its ratione temporis.

Of course, no norm can escape the notion of time! However, not all norms are affected by time in quite the same way. Custom follows its own ancient rhythm. For custom, time is of long duration if not always an eternal yesterday, to which it looks in order to establish a tradition by degrees of mimicry. In common law countries, the tradition of accumulating precedents creates law in conjunction with legislation. By contrast, legislation alone may be qualified as being temporally ‘Promethean’. From the moment of its promulgation, a legislative act manifests an intention to change existing law, to establish a new set of rules to fulfil the desired objective. These same temporal characteristics are shared by the Constitution, the Law of all laws, and are accentuated by its greater pomp and solemnity. By formalizing an alliance between Nation and Law, a Constitution encompasses a foundational element that is derived from an account of its origins.7 The Charter of the United Nations shares this characteristic to some extent, which is not, however, sufficient to consider it to be the ‘Constitution of the international legal order’.8 With respect to all these norms, it would be vain to ask whether they represent a future choice, or are a product of the past. Laetitia Gianformaggio is right to observe that they are, by definition, both, as will be discussed below.9

What about treaties? An intuitive response is that a treaty should be understood in contradistinction to custom, and by analogy with legislation. The date (p. 125) of its entry into force marks the coming into being of a new intention, defined by reference to its provisions, its objectives to fulfil, and by the rights and obligations that it thereby sets in motion. However, one immediately perceives that an analogy between treaties and legislation cannot be stretched too far. Although it is somewhat risky to generalize in relation to treaties, time seems to be more brittle, its duration more precarious, for treaties than for municipal legislation. The reason lies in the necessity of maintaining a continuing concordance of all parties who are each, at least formally, bestowed with sovereign equality. Now, a treaty is subject to many interpretations, and each party consequently strives to protect itself, its own interests, from the ulterior motives of other parties underlining the reasons for their consent to be bound.

Indeed, a treaty is never etched in stone because sovereigns refuse to be bound in perpetuity.10 If a treaty no longer responds adequately to the situation for which it was designed to apply, at least according to one party, it may, of course, be revised. Nevertheless, to counter the possibility of a treaty being too easily modified, the process of revision frequently stipulates more or less demanding procedural requirements, depending on the treaty in question, with the end result that modification is not actually possible or remains at least uneasy to perform. Permissible modifications to a treaty that take into account the passing of time thus often require a new interpretation of its terms. To this end, a judge is often requested to redefine the meaning of a treaty without altering its nature. Such a manner of interpreting treaties, sometimes called an evolutionary interpretation, is no mean feat. In many cases the very survival of the agreement and its applicability to present-day concerns are at stake.11

Although judges are not alone in undertaking an evolutionary interpretation of a text, they will form the focus of the discussion that follows. Judges are not always in the same legal and political position to undertake a dynamic reading of the agreement before them. Certain cases bring into sharp relief what René-Jean Dupuy termed the ‘ordre relationnel’ (relational order), namely the classical horizontal relationship that exists between equal sovereigns. This will be the case where the judge is exercising jurisdiction based solely on the consent of the parties. In such cases, the international judge will take particular care in ensuring that his interpretation is based on the will of the parties as manifested in the past, in order to breathe new life into the terms of the treaty without changing them. A more or less new reading of the treaty will thus be driven by the memory of the intention of the parties.

Conversely, in other cases, a judge will be emboldened to undertake a more dynamic interpretation of a treaty where he does not simply act as an arbitrator between the parties, but rather occupies the role of a guardian of a common (p. 126) institution. In such cases, the institutional mandate conferred upon the judge will provide him with the necessary authority and legitimacy to demonstrate the preferred approach to adopt for the furtherance of a collective plan. The judge does not act in such cases as a mere instrument of the parties. He exercises an institutionalized judicial power the purpose of which is to ensure the continuing existence of objectives articulated by a community, and he will thus interpret meaning pursuant to these communal interests. To use the words of Chief Justice Wendell Holmes, in such a case evolutionary interpretation is not simply an exercise of memory; it tends towards prophecy.12

1. Evolutionary Interpretation Supported by Memory

Evolutionary interpretation may be said to be supported by memory to the extent that it is based on the will of the parties, as manifested in the past, and often expressed in the very terms of the treaty. It is not a matter of giving a meaning to the text that was unintended by its authors; rather, it is the task of the judge to ensure that a new reading is undertaken in such a way as to reflect the common desire of the parties as if they had renegotiated the same agreement taking into account the circumstances that have since evolved. This first form of evolutionary interpretation is considered by its supporters to amount to a loyal translation of the will of the parties, as opposed to a deliberate betrayal of this will.

This form of evolutionary interpretation raises two questions which will each be examined in turn: first, the question of the choice of methods to adopt, which is to a large extent codified under Article 31 of the Vienna Convention of the Law of Treaties; second, the question of determining the point in time with respect to which the applicable law for the interpretation of the treaty provisions may be established. These two issues are interwoven, and although pedagogical reasons require them to be addressed separately, it is important to stress that they constitute two sides of the same coin.

1.1. In his celebrated book on the law of treaties in light of the Vienna Convention, Sir Ian Sinclair explains why the codifiers were quickly confronted with questions of ‘intertemporal law’ particularly in relation to how to define the ‘ordinary meaning to be given to the terms of the treaty’ pursuant to Article 31(1) of the Convention.13 During a second reading, the International Law Commission (ILC) members chose to address this thorny question in the third paragraph of the said article, which for the purpose of interpretation envisages the applicability of ‘any relevant rules of international law applicable on the relations between (p. 127) parties’. Sir Ian explained that this renvoi served to ensure that ‘every treaty provision [ … ] be read not only in its context, but in the wider context of general international law’.

The explanation provided by Sir Ian is particularly enlightening given that he was a member of the Commission. It does not, however, provide an entirely satisfactory answer to why Articles 31 and 32 remain silent on the question of evolutionary interpretation. Other paragraphs also refer to a temporal dimension in the interpretation of a treaty, such as Article 31(3)(b), which provides that ‘any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’ may be taken into account. Nevertheless, the Vienna Convention remains largely mute on how temporal considerations should operate in determining the meaning of treaty provisions and, as will be discussed later, for determining the relevant period for a determination of the applicable international law. There is thus a lacuna in the rules of the Convention that provides some room to manoeuvre for those wishing to adopt an evolutionary interpretative approach.

In reality, there is a solid tradition of viewing dynamic interpretation with some suspicion on the basis that it risks giving the judge too much licence not to scrupulously respect the will of the parties as expressed in the treaty instrument. Two opinions may be cited in support of this attitude, and although these opinions are now quite dated, they warrant consideration given that they were expressed by two particularly eminent legal counsel: Charles de Visscher and Sir Gerald Fitzmaurice.

Charles de Visscher noted in Problèmes d'interprétation judiciare en droit international public that ‘[t]he purpose of interpretation is not to perfect an instrument, to adapt it more or less to achieve what may be deemed to be the logically postulated objective, but to shed light on the real intention of the parties’.14

Sir Gerald appears to add to the chorus:

The objectives of a treaty do not exist in the abstract; they derive from the intention of the parties and expressed in the terms of the treaty or as evidenced by them and are closely in relation to them as they are their only source [ … ]. They (the intentions of the parties) cannot be introduced afterwards in the guise of objectives which were not contemplated at the time.15

According to the approach expressed in these two opinions, the appropriate method of interpretation of treaties is that which is set out in the first paragraph (p. 128) of Article 31: to read the text by giving its terms their ordinary meaning at the moment of the conclusion of the treaty. Consequently, it is argued, the judge should not inopportunely intervene by attempting to determine the meaning to be attributed to a treaty through the use of the incontrollable criterion of the object and purpose of the treaty. Such a Praetorian interpretative exercise is too dynamic and insufficiently respectful to the original will of the parties. The treaty's object and purpose is at risk of being changed by the judge. Memory must remain loyal and not serve to rewrite history; a treaty belongs to its authors and not to the judge.

In line with this approach, ‘good faith’ under Article 31(1) not only refers to the good faith of the parties, but also to the good faith of the judge. The judge must reflect upon the true meaning and scope of the terms employed at the time of the drafting of the treaty by taking into account the will of the parties, and he must not be guided by ulterior motives. Even leaving aside the notion of ‘ordinary meaning’, which remains debatable, this approach would require the judge to take on the role of a historian, particularly if the treaty to be applied is quite old. According to the same approach, resort should not be had to the ‘context’ under paragraph 2 of Article 31, and to the ‘preparatory work’ of the treaty under Article 32, unless necessary in order to determine the original intention of the parties to the agreement.

Does this mean that an evolutionary interpretation of a treaty will always be prohibited because it does not assist in determining the will of the parties? Case law has attempted to provide an answer to this question, and in so doing, cases have adopted successive responses to the question: what is the relevant point in time for determining the applicable law for the interpretation of a treaty?

1.2. The traditional position taken to answering this question was first articulated in the arbitral award handed down by Max Huber in the celebrated case of the Island of Palmas, in which he stated that ‘a juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when a dispute in regard to it arises or falls to be settled’.16 This approach was adopted by the Permanent Court of International Justice (PCIJ) in the S.S. Wimbledon Case, and was also taken up by the International Court of Justice (ICJ), notably in the Case concerning rights of nationals of the United States of America in Morocco.17 As will be discussed below, the approach of the Court is different in the context of advisory proceedings, where it exercises a much more dynamic approach to interpretation.

It is thus unsurprising that it was precisely in an Advisory Opinion, namely the Legal Consequences for States of the Continued Presence of South Africa in Namibia, (p. 129) notwithstanding Security Council Resolution 276 (1970), that the Court changed its approach to the question. In this Advisory Opinion, the Court recalled that it was ‘mindful [ … ] of the primary necessity of interpreting an instrument in accordance with the intentions of the parties at the time of its conclusion’; however, the Court also noted that ‘the concepts embodied in Article 22 of the Covenant—the strenuous conditions of the modern world and the well-being and development of the people concerned—were not static, but were by definition evolutionary, as also, therefore, was the concept of the “sacred trust” (of civilisation). The parties to the Covenant must consequently be deemed to have accepted them as such.’18

The Court concluded a little later in the generalized form of an obiter dictum as follows: ‘Moreover, an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation.’

The passage above prompts the following three reflections:

  • •  First, the Court took great care in recalling the requirement of respect for the will of the parties—in the case at hand, the parties to the Covenant of the League of Nations—as limiting the scope of its interpretation;

  • •  Secondly, the Court noted that the parties themselves had chosen to incorporate concepts and notions in the text of the Covenant that were of an evolving character open to political and social transformation;

  • •  Thirdly, in the form of an obiter dictum as mentioned above, the Court set out a rule of interpretation of universal application that was by no means limited to certain types of treaty instruments (such as constitutive documents of a new international system or an international institution), but which applies to all types of ‘international instruments’.

The Court has adopted a similar interpretative approach in subsequent cases, not only in advisory proceedings but also in contentious cases. In the Case concerning the Gabčíkovo-Nagymaros Project the Court had to interpret in 1997 the terms of a bilateral treaty concluded 20 years earlier, in 1977, between two Socialist countries concerning the construction of an integrated system of hydroelectric dams. The Court observed in relation to the bilateral treaty that the subsequent practice of the parties manifested that the terms of the instrument were open to renegotiation (para. 138). This case is generally cited as a step in the direction of a dynamic interpretation of treaties. It is important, however, to emphasize a point that commentators—no doubt influenced by the Separate Opinion of Judge Bedjaoui—sometimes neglect: the Court did not itself undertake an evolutionary interpretation of the terms of the 1977 treaty. Rather, the Court recommended (p. 130) that the parties, when renegotiating the terms of the treaty in conformity with its Article 5, take into account the significant normative developments and new standards of the law governing the protection of the international environment that had developed during the period from the conclusion of the bilateral treaty in 1977 to the moment of its revision (after September 1997). It is in this limited context that the Court's statements must be read, namely that

… in order to evaluate the environmental risk, current standards must be taken into consideration. This is not only allowed by the wording of Articles 15 and 19, but even prescribed, to the extent that these articles impose a continuing—and thus necessarily evolving—obligation on the parties to maintain the quality of the water of the Danube and to protect nature.19

Later in its judgment the Court explains the evolutionary approach which it invites the parties to adopt in the renegotiation of the treaty terms, and not in the interpretation of the treaty, as follows:

Owing to new scientific insights and to a growing awareness of the risks for mankind—for present and for future generations—of pursuit of such interventions at an unconsidered and unabated pace, new norms and standards have been developed, set forth in a great number of instruments during the last two decades. Such new norms have to be taken into consideration, and such standards given weight, not only when States contemplate new activities but also when continuing with activities begun in the past.20

This strong position taken by the Court with respect to the necessity of taking into account the particularly abundant normative developments in environmental law is not, however, imposed upon third parties. Paying attention to the evolution in progress was an issue to govern the behaviour of the parties during the renegotiation of the Treaty. It would be erroneous to view the Case concerning the Gabčíkovo-Nagymaros Project as a break with previous case law, which maintained a link with the will of the parties. Rather, it was the negotiable character of the Treaty provisions in that case that the Court drew upon in order to situate the subsequent practice of the parties. Earlier in the judgment, at para. 104, the Court noted that it was ‘the formulation of Articles 15, 19 and 20, designed to accommodate change (which) made it possible for the parties to take account of such developments and to apply them when implementing these treaty provisions’.

The ICJ clarified the will of the parties; it did not substitute its own will for theirs. There is a link with the approach adopted in this case, with the position the Court took in the Namibia Case insofar as the Court refers to the law at the moment of interpreting a treaty.

The same approach is again followed in a recent case where the Court took an evolutionary interpretative approach to a treaty text the adaptability of which was brought into question by the parties. In the Case concerning the River San Juan of (p. 131) 13 July 2009, the Court was called upon to interpret the term ‘commerce’ in the 1858 treaty concluded between the two parties to the dispute. In so doing, the Court stated:

Though adopted in connection with the interpretation of a reservation to a treaty, the Court's reasoning in that case is fully transposable for purposes of interpreting the terms themselves of a treaty. It is founded on the idea that, where the parties have used generic terms in a treaty, the parties necessarily having been aware that the meaning of the terms was likely to evolve over time, and where the treaty has been entered into for a very long period or is ‘of continuing duration’, the parties must be presumed, as a general rule, to have intended those terms to have an evolving meaning.21

In this case, the Court verified the existence of such a situation and concluded that the intention manifested by the parties was that the Treaty ‘was entered into for an unlimited duration’. This implies an evolutionary interpretation of the term ‘commerce’, and thus an interpretation contrary to the position taken by Nicaragua, who favoured a traditional interpretative approach that takes into account the applicable law and the meaning of the terms at the moment of the conclusion of the Treaty.

Where evolutionary interpretation is not undertaken in a clearly defined institutional context, it will be characterized by a levelheaded audacity. In such cases, the following rule will apply: bearing in mind the legal context in which the treaty was drafted, there is a presumption in favour of the applicable law for treaty interpretation being the law that prevailed not only at the time of conclusion of the treaty, but also the law that prevails at the time of the interpretation of the treaty. It will be left to each jurisdiction to decide in each particular case which law to apply. According to the current state of positive international law, the ICJ only allows for a dynamic interpretation of a treaty where justified by notions and concepts in the terms of the treaty from which it may be inferred that the text is open to considerations of factual or legal evolution after the conclusion of the treaty. International jurisdictions may act more boldly when they are called upon to interpret treaties the object of which is to establish new international institutions with a view to promoting a collective project.

2. Evolutionary Interpretation towards Prophecy

An international judge charged with the task of interpreting a treaty that establishes an organization designed to achieve a shared purpose, must respect the will of all the parties. It generally transpires that in such cases the judge is less bound by the consent of each individual party. The judge is the depositary of a (p. 132) common finality, the outcome of which he is there to assist. The collective institution thus overrides individual consent. The Court thus uses individualized disputes to remind all parties of the route that each one of them must follow in order to achieve the collective goal.

In this vein, the international judge brings to mind the constitutional judge in domestic legal orders, and one thinks of Oliver Wendell Homes, judge of the Supreme Court of the United States of America, who affirmed in 1897 that ‘the primary rights and duties with which jurisprudence busies itself again are nothing but prophesies’.22 Such an attitude often generates, as a side-effect, allegations of ‘judicial activism’, and leads one to question how far a dynamic interpretation should be taken.

2.1. The ICJ has already evinced a tendency to act less like a loyal servant to the individual intention of the parties, and more like an artisan with a dynamic vision of the common design. This is particularly the case where the Court is exercising its advisory jurisdiction. In this role, the Court acts as the ‘principal judicial organ of the United Nations’, pursuant to the Charter. The first Advisory Opinions that the ICJ handed down during the life of the United Nations (UN) are in this respect emblematic. The most audacious of these undoubtedly remains the 1949 Advisory Opinion concerning Reparations for Injuries Suffered in the Service of the United Nations.23 It will be recalled that in this case, the Court did not hesitate in deducing from the terms of the Charter, and particularly from its aims, that the Organization possessed an international legal personality.24

Although it is important to distinguish the one from the other, it may be noted that much of the time a dynamic interpretation amounts to a teleological interpretation, the aim of which is a quest for practical effect, as that approach has been borrowed from the Supreme Court of the United States of America.25 At this point, an interpretation of the object and purpose assigned to a treaty does not elicit in the judge the same care advocated by Charles de Visscher and Sir Gerald Fitzmaurice in the context of a classic bilateral context.26 To take the case of the 1970 Advisory Opinion concerning Namibia, the Court noted in an obiter dictum that ‘an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation’, which in turn contributes to the popularity of the dynamic interpretation (p. 133) of ordinary treaties (that is, treaties which are not the constitutive instruments of organizations). It is worth recalling that it was in relation to the end of mandates established under the League of Nations, a system that was inherited by the UN, that the Court made its findings concerning the contemporary meaning to be given to this institution.

The move towards a prophetic designation of the treaty purposes to be achieved has particular force in the context of certain regional international organizations. In this respect, the role of the European Court of Justice (ECJ) is of particular importance. As the ECJ noted in 1982 in the case of CILFIT,27 ‘every provision of Community law must be placed in its context and interpreted in the light of the provisions of Community law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied’. The Court seated in Luxembourg made clear in its earliest cases that it would take a particularly bold approach to interpretation based on the radical specificity of the legal order of the European Community. Although the ECJ is itself international, and integrated into the international legal order, it distinguishes itself by a number of different traits. The celebrated cases concerning the direct applicability and the primacy of community law remain emblematic in this respect.28 The case law of the European Community will not be the focus here precisely because of its unique character. Indeed, the purpose of the European Community treaties is quasi-federal, insofar as they are means toward the progressive realization of an organization of integration based on the partial, but very real, transfer of powers by each member state to the communitarian executive. The focus here will instead be the case law of the European Court of Human Rights (ECHR) which demonstrates both the application and the limits of evolutionary interpretation.

The preamble to the European Convention on Human Rights of 4 November 1950 recalls that ‘the aim of the Council of Europe is the achievement of greater unity between its members and that one of the methods by which the aim is to be pursued is the maintenance and further realization of Human Rights and Fundamental Freedoms’. It is noteworthy that from the very beginning, particular emphasis has been placed on the progressive and evolutionary character of the ‘collective enforcement of certain of the Rights stated in the Universal Declaration’. The ECHR29 remains loyal in its application of the methods of interpretation set out in Articles 31 and 32 of the 1969 Vienna Convention, to which the Court explicitly has made reference, for example in the case of Golder (p. 134) of 21 December 1975.30 Equally, the ECHR has been assisted by the preamble of the Convention to look towards the future. The Court has referred to the purposes to be achieved and the efforts to be made by states, who are viewed by the ECHR both as parties to the Convention and as members of the Council of Europe, in order for their acts and internal legislation to conform with their international obligations.31

This led the Strasbourg bench to affirm in 1978, in the case of Ireland v the United Kingdom, that: ‘[u]nlike international treaties of the classic kind, the Convention comprises more than mere reciprocal engagements between contracting states. It creates, over and above a network of mutual, bilateral undertakings, objective obligations which, in the words of the Preamble benefit from a “collective enforcement”.’32

The case at hand concerned the promotion of the application of human rights in accordance with a treaty that establishes ‘objective obligations’, namely obligations to which the logic of reciprocity does not apply. This in turn reinforces the ‘objective’ character of the interpretative approach adopted by the ECHR according to which the Court moved away from too literal an understanding of the will of each of the parties. The ECHR is confronted by a double dynamic which must be taken into account in its case law: on the one hand, the rights affirmed in the 1950 Convention and in the internal legislation of member states, including their constitutions, and which appear open to evolutionary interpretation; on the other hand, what is in reality the cause and effect of the first dynamic, namely the evolution of ethical concepts embedded in the social fabric of the different member states which produce a number of practices.

In particular, the European case law has tried to take into account different ways of living, including by reference to developments in scientific and social research. For example, this has been the case with the difficult question of transexuality, as the cases of Rees v the United Kingdom33 and Sheffield and Horsham v the United Kingdom,34 illustrate. At the crossroads of these two dynamics are ‘legal standards’ which vary from one country to the next, and which progressively change. The Court has made reference to the need to consider such standards in the cases that come before it, for example, in the case of Guzzardi v Italy.35

Despite this double necessity for flexibility, recourse to evolutionary interpretation is not unproblematic, nor is it the only option open to the ECHR. The (p. 135) Court disposes of other ‘adjustable variables’, including the ‘margin of appreciation’ which leaves it to each state party to determine the concrete application of certain issues, such as at what moment a foetus may be considered a ‘human being’. The use of this margin of appreciation in many cases serves to do away with the need for the Court to provide a radical evolutionary interpretation of certain freedoms, as the case of Rasmussen v Denmark,36 and the abovementioned case of Sheffield and Horsham v the United Kingdom, attest.37

However, if there is a statement that has become a sort of ‘leitmotiv’ in the case law of the ECHR, it must be that ‘the convention is a living instrument which [ … ] must be interpreted in the light of present day conditions’. The Strasbourg Court applies what has become an adage to different areas in the protection of human rights among which may be mentioned patrimonial rights of children, as in the case of Marckx v Belgium,38 conceptions of marriage (Johnston and others v Ireland),39 and the penal policy of member states, such as in the cases of Tyrer v the United Kingdom40 and Soering v the United Kingdom,41 or the right to property in the celebrated case of Loizidou v Turkey.42

In having recourse to a dynamic interpretation of the terms of the European Convention in accordance with the development of social and legal standards that surface and transform in different member states, the Court does not, however, forget to maintain a link with the original intention of the parties. Similarly, the ECHR does not lose sight of the requirement for a degree of coherence with its earlier decisions. The ECHR thus attempts to establish a measure of equilibrium among these different considerations. In this vein, in the 2002 case of Goodwin v the United Kingdom, the Court stated:

While the Court is not formally bound to follow its previous judgments, it is in the interest of legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from precedents laid down in previous cases (see, for example, Chapman v UK, n° 27238/95, ECHR-I, para. 70). However, since the Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions within the respondent state and within contracting states generally and respond, for example, to any evolving convergence as to the standards to be achieved (see, amongst other authorities, the Cossey judgment, para. 35, and Stafford v UK, n° 46295/99, paras 67–68). It is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory.43

(p. 136) This concern for efficacy leading to a flexible interpretation of the Convention warrants particular attention as it constitutes a recurring theme in the case law of the ECHR, as the cases of Airey v Ireland44 and Stafford45 attest. It may be noted that the concern driving the ECHR to use its judgments in order to balance out a range of diverse factors which it must take into consideration, demonstrates the Court's awareness of the possible excesses, and the limit beyond which dynamic interpretation risks degenerating through an abuse of power.

2.2. Allegations of ‘judicial activism’, often invoked by states and sometimes supported to a lesser or greater extent by legal scholarship, like the allegations made in relation to some of the reports emanating from the Word Trade Organization (WTO) Appellate Body, should be treated with care.46 It is often the case that such allegations demonstrate the political reluctance of some states to engage in the institutional and normative framework which they voluntarily agreed to be part of, but which they now view as an international jurisdiction behaving on the international stage like a constitutional judge. In this vein, it is worth recalling the sometimes uneasy relationship that has existed between the European Court of Justice and its member states.47

The issue of an abuse of power by the international judge that may surface in relation to a lack of legal reasoning in certain decisions, may also arise with respect to the inherent risks of an overly systematic use of evolutionary interpretation. This was the concern expressed by President Judge Bedjaoui in his Individual Opinion to the ICJ judgment in the Case concerning the Gabcikovo-Nagymaros Project.48 In particular, Judge Bedjaoui stressed what appears incontrovertible, that ‘the “evolutionary interpretation” can only be applied if the general rule of interpretation in Article 31 of the Vienna Convention on the law of treaties is respected’.

It should be recalled that the ICJ invoked the classic rule according to which ‘the interpretation of the treaty must comply with the intentions of the parties expressed at the time of its conclusion’, in its Advisory Opinion of 1970 on Namibia. In order to justify a return to a traditional position—which is not, however, as a general rule, the approach taken by the author—Judge Bedjaoui added that ‘the intentions of the parties are presumed to have been influenced by the law in force at the time the treaty was concluded, the law which they were supposed to know, and not by future law, as yet unknown’. A literal reading of this statement appears to allow an evolutionary interpretation of a treaty only in exceptional cases.(p. 137)

Judge Bedjaoui thus considered that the ‘?“definition” of a concept [is] not to be confused with the “law” applicable to that concept’.49 This seems to be a pertinent distinction to draw, even if Judge Bedjaoui himself in the case at hand appears to have been in error in stating that the notion of the ‘environment’ ‘is not evolutionary’. In reality, a number of areas covered by international law require frequent adaptation that is of growing importance. This is particularly the case where the law regulates a particular area of human activity at a given moment based on the scientific and technological knowledge available at that time, as the successive treaties codifying the law of the sea concluded in Geneva in 1958, and then in Montego Bay in 1982, attest.

It appears incontestable that, in a general sense, the interpretation of a treaty by a judge should not be confused with its revision, which can only be undertaken by the parties themselves.50 The terms in which the treaty provisions to be interpreted are drafted provide a solid indication of whether the text is open to an evolutionary interpretation. This is the case, even though in reality the reconstruction of the initial will of the parties remains an exercise requiring almost as much imagination as skill on the part of the judge in finding reliable indices that point to what the parties really wanted. The practice of evolutionary interpretation is another expression of the art of judging, which is constantly balanced between providing for stability based on respect for the principle of autonomy of the will of the parties, and a quest for the necessary flexibility to keep a treaty afloat by meeting the objectives it was designed to address.

In addition to these considerations, it is also important to note that the survival of unrevised treaty obligations, which are particularly exposed to erosion by time, presupposes that the judge or arbitrator is in a position to follow the political, economic, and social evolutions which transform more and more the scope, if not the very nature, of the agreed upon obligations. This brings to mind the opening dialogue between the Poet and the Painter in Shakespeare's Timon of Athens: ‘Poet: I have not seen you long. How goes the world? Painter: It wears, sir, as it grows.’

Footnotes:

1  M. Virally, La pensée juridique (Paris: Editions Panthéon-Assas, collection Les introuvables, 2nd edn, 1998; Paris: LGDJ, 1st ed., 1960).

2  (Unofficial translation) ‘la direction des hommes exige un ensemble des règles générales et permanentes’, G. Ripert, Les forces créatrices du droit (Paris: LGDJ, 1955).

3  M. Bretone, Diritto e tempo nella tradizione europea (Bari-Roma: Laterza, 2004) 1–329.

4  S. Sur, L'interprétation en droit international public (Paris: LGDJ, 1974) at 81.

5  J. Verhoeven, ‘Les conséquences et les implications du temps en droit international’, in Le droit et le temps (Paris: Pedone, Colloque SFDI, 2001) at 9 et seq.

6  See in particular F. Ost and M. Van Hoecke, Temps et droit. Le droit a-t-il pour vocation de durer? Time and law. Is it the Nature of Law to Last? (Brussels: Bruylant, 1998) (hereinafter Ost and Van Hoecke, Time and Law). See also J. Combacau, ‘L’écoulement du temps’, in Le droit et le temps, supra note 5, at 77 et seq.; F. Ost and M. Van de Kerchove, ‘Pluralisme temporel et changement. Les jeux du droit’, in Nouveaux itinéraires en droit. Hommages à François Rigaux (Brussels: Bruylant, 1993) at 392.

7  L. Gianformaggio, ‘Temps de la constitution, temps de la consolidation’, in Ost and Van Hoecke, Time and Law, supra note 6, at 339 et seq.

8  P.M. Dupuy, ‘L'unité de l'ordre juridique international—Cours général de droit international public’, 297 Recueil des Cours (2002) at 215 et seq.

9  Supra note 7.

10  A. Wijffels, ‘La validité rebus sic stantibus des conventions: quelques étapes de développement historique’, in Ost and M. Van Oecke, Time and Law, supra note 6, at 247.

11  T. Georgopoulos, ‘Le droit intertemporel et les dispositions conventionnelles évolutives’, 108 RGDIP (2004) 123–47.

12  W. Holmes, ‘The Path of the Law’, 10 Harv. L Rev. (1897) at 458.

13  Sir I. Sinclair, The Vienna Convention on the Law of Treaties (Manchester: Manchester University Press, 2nd edn, 1984) at 138.

14  C. De Visscher, Problèmes d'interprétation judiciaire en droit international public (Paris: Pedone, 1963), the English translation of which is found in F. Ost, ‘The Original Canons of Interpretation of the European Court of Human Rights’, in M. Delmas-Marty (ed.), The European Convention for the Protection of Human Rights: International Protection Versus National Restrictions (Dordrecht: Martinus Nijhoff Publishers, 1992) at 288.

15  Cited by F. Ost, ‘The Original Canons of Interpretation of the European Court of Human Rights’, supra note 14. Commentary by Sir Gerald on the European Court of Human Rights case of National Union of Belgian Police, Judgment of 27 October 1975, Series A, No. 19, at 33.

16  Island of Palmas case, I RIAA (1928), 829 et seq., at 845.

17  ICJ, Rights of Nationals of the United States of America in Morocco (France v United States of America), Judgment of 27 August 1952, ICJ Reports (1952) at 189.

18  ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding SC Resolution 276 (1970), Advisory Opinion of 21 June 1971, ICJ Reports (1971) at 31, para. 53.

19  ICJ, Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment of 25 September 1997, ICJ Reports (1997) at 78, para. 140.

20  Ibid.

21  ICJ, Case concerning the Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua), Judgment of 13 July 2009, paras 66–67, not yet reported, available at <http://www.icj-cij.org>.

22  Supra note 12.

23  ICJ, Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, ICJ Reports (1949) 174 et seq.

24  See the author's commentary in ‘L'unité de l'ordre juridique international’, supra note 8, at 107 et seq., in relation to the conclusions that may be drawn from this fundamental opinion with respect to the general theory of subjects in international law.

25  In the celebrated case of Marbury v Madison, 5 U.S. (1 Cranch) (1803) at 137.

26  Charles de Visscher himself noted: ‘C'est dans l'interprétation des traités normatifs et des traités d'organisations internationales que la notion de l'objet et du but revêt toute son ampleur.’ C. de Visscher, Problèmes d'interprétation judiciaire en droit international public, supra note 14, at 65.

27  Case No. 283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health, [1982] ECR 3415; G. Gaja, Introduzione al Diritto Communitario (Roma-Bari: Laterza 2007); D. Simon, Le système juridique communautaire (Paris: PUF, 3rd edn, 2001) at 376.

28  Case C-34/89 Van Gend en Loos [1963] ECR 1; Case C-6/64 Costa v ENEL [1964] ECR 1127; see G. Gaja, Introduzione al Diritto Communitario, supra note 27.

29  The purpose of the ECHR is to settle disputes between a state and individuals under that state's jurisdiction who ground their claims of human rights violations on the basis of the Convention and its Protocols.

30  Golder v United Kingdom, Judgment of 21 December 1975, Series A, No.18, para. 29 et seq.

31  R. Bernhardt, ‘Evolutive Treaty Interpretation, Especially of the European Convention of Human Rights’, 42 GYIL (1999) 11–25; F. Rigaux, ‘Interprétation consensuelle et interpretation évolutive’, in L'interprétation de la Convention européenne des droits de l'homme (Brussels: Nemesis-Bruylant, 1998) 41–62; F. Ost, ‘The Original Canons of Interpretation of the European Court of Human Rights’, supra note 14.

32  Ireland v United Kingdom, Judgment of 18 January 1978, Series A, No. 25, at 90, para. 239.

33  Rees v the United Kingdom, Judgment of 17 October 1986, Series A, No. 106, para. 47.

34  Sheffield and Horsham v the United Kingdom, Judgment of 30 July 1998, RJD 1998-V, paras 1–4.

35  Guzzardi v Italy, Judgment of 6 November 1980, Series A, No. 39, para. 95.

36  Rasmussen v Denmark, Judgment of 28 November 1984, Series A, No. 87, para. 40.

37  Supra note 34.

38  Marckx v Belgium, Judgment of 13 June 1979, Series A, No. 31, para. 58.

39  Johnston and others v Ireland, Judgment of 18 December 1986, Series A, No. 112, para. 53.

40  Tyrer v the United Kingdom, Judgment of 25 April 1978, Series A, No. 26, para. 31.

41  Soering v the United Kingdom, Judgment of 7 July 1989, Series A, No. 161, paras 102–104.

42  Loizidou v Turkey, Preliminary Objections, Judgment of 23 March 1995, Series A, No. 310, paras 70–71.

43  Goodwin v the United Kingdom, Judgment of 11 July 2002, RJD 2002-VI, para. 6.

44  Airey v Ireland, Judgment of 9 October 1979, Series A, No. 32, para. 24.

45  Stafford v United Kingdom, Judgment of 28 May 2002, RJD 2002-IV, para. 5.

46  D.S. Beckford, Power and Judicial Activism in the WTO, The Appellate Body's Interpretation of Trade Remedy Agreements (London: VDM Verlag, 2008).

47  D. Simon, L'interprétation judiciaire des traités d'organisations internationales, Morphologie des Conventions et fonction juridictionnelle (Paris: Pedone, 1981).

48  ICJ, Gabčíkovo-Nagymaros Project, supra note 19, at 117–21.

49  Ibid., 119.

50  Ibid., 120.