PUBLIC INTERNATIONAL LAW

PUBLIC INTERNATIONAL LAW

Introduction

It is quite evident that we are living in an era of treaties. Over the recent past and also in the present, humans have continued to create both bilateral and multilateral laws so as to create new international legal standards. The question, in this case, would be why we do so, and there are quite several approaches that have been taken by different scholars. Critically looking at international law, it is difficult for any country to primarily rely upon international law while conducting its activities[1]. This, like other scholars, describe it is seen as modern colonization since there are times where sanctions are driven to countries that oblige to specific laws.

A good example is international law on nuclear energy and weapons. Despite all that, the growth and development of technology and foreign exchange have created the need for a precise and flexible international law. It is quite inevitable.

History of Development of the VCLT

Immediately after World War II, some customary international law rules had become relevant to negotiation validity and interpretation of treaties. Therefore, in 1949, the International Law commission introduced the law of treaties as a high priority topic during the United Nations first session[2]. We could all say that the I.L.C. played a huge role in preparing preparatory documents and sessions that led to the VCLT. Special rapporteurs were appointed by the commission and their role was to keep the topic of law of treaties on agenda from the year 1949 to 1969. The International Law Commission played its part by considering the research of appointees and also information that was being provided by governments and also documents prepared by the U.N. secretariat. This can be seen a straight forward move but it was not. The I.L.C. continues to report its progress in the U.N. sessions until 1966 when it presented a final draft of articles. The VCLT was then convened in 1968 and 1969[3].

In the article, “Capacity and Authority to make International Agreements” Raj Krishna brings out the idea that international law is not a solution to the question of what capacity semi-dependent and dependent countries have to conclude treaties. This question does not also find an answer in the Vienna Convention. Dhokalia, in critical essay ””Problems Relating to Jus Cogens in the Law of Treats’’ also observes that the Vienna Convention has not even come close to solving the problem of jus cogens.  The scholar is to the opinion that to the fact that international law has been introduced, without adding particular conditions this opens up doors to all kinds of abuse[4].

The interpretation of treaties is one of the most controversial issues in international law, and this is because the implementation of a particular agreement could raise serious concerns and impact to the national interests of the parties of the treaty[5]. When we are to resolve issues that arise during the process of treaty interpretation, such a process will require the time and skills of several different authorities. Such authorities may include the police, military officials, diplomatic personnel, immigration authorities, and international courts only to mention a few[6]. These authorities will be referred to as appliers. In the recent past, these authorities have found the aspect of interpreting the law to be one of the most difficult, especially while dealing with contradictory issues. For instance, when an international court is faced with the task of resolving a dispute involving two states concerning the application of a treaty it is in most scenarios because the opposing states have different opinions concerning the interpretation of the instrument[7].

This issue may be attributed to the fact that also judges and arbitrators, on several occasions, disagree when it comes to matters of interpretation, which is so common when it comes to international law. Shouldn’t all these disagreements be avoided? They always tend to the mutual relationships and dealings of states in general. The issue of interpretation of international law should be considered of greater importance than the opinions of judges and arbitrators since they will also create a detriment to the legitimacy of judicial decisions[8].

The real question is why the interpretation of treaties is such a big deal to the authorities required to apply it. My lecturer once said that the law is not clear, as some may claim. If it were clear, he continued, there wouldn’t be a justice system or lawyers. One of the advances as to why the interpretation of international law is crucial and of great concern is because the different authorities to apply it have different opinions on the contents of what is relevant in the legal regime that is currently upheld in international law. We have made some significant steps, and we should be proud of that.

It should be noted that much of the debates on the interpretation of international law bends to the side of thinking that up 1969, there was no treaty governing this field. We also have to say that we have quite benefitted from the 1969 Vienna Convention on the Law of Treaties. It is even better that this convention includes, among other things, some information concerning its interpretation. This was to help nations in codifying the customary international law to be applied in a specific state.

The Vienna Convention Articles 31-33, which provide for the interpretation of treaties, we, therefore, can say that we have resolved the issues and controversies brought up by the 20^TH-century international law literature. It is now crystal clear that the norms laid down in international law are not some mere guidelines as a reasonable man would suggest. It is also possible to conclude that the rules of interpretation of every treaty will remain the same regardless of whether the agreement in question is characterized as traité-loi or as a traité-contrat. It would also be wrong to exaggerate the importance of the Vienna Convention[9]. Some scholars argue that despite a country adopting and codifying the Vienna Convention, it is still very far from clear as to the extent of application of international law. This is so to say that a country or state is allowed to conduct its activities as it sees fit and should be free from criticism or any sort of victimization.

The uncertainty is primarily because of the manner in which the three articles have been designed. In essence, they do not address the issue of interpretation straightforwardly and directly. Instead, they tackle the questions that concern the means of understanding that the authority or body that will be using during the interpretation process. The strategy that was used here thus makes the law quite flexible to the extent it is not a must to interpret international law, but if at all or at any point, you are to interpret it, these are the rules you must use. One may argue that the process of interpretation is just adjusted to suit the needs of interpretation of the law should the need arise. For instance, a country may decide not to apply or codify some international laws and some to systematize and apply. So, for the laws, it’s going to codify and apply these rules of interpretation must then apply. There are some negative aspects to this path as there are different opinions meaning something is not clear.

Whenever then, a particular understanding is advanced as to be the correct interpretation of a treaty, the question remains as to whether this interpretation conforms to the set standards in international law. It may follow or not, and this one right answer thesis is the only aspect that should be considered when assessing whether the interpretation is legally correct.

SCHOOLS OF APPROACH TO INTERPRETATION TREATIES

It should be common knowledge that subject to the interpretation of a treaty so shall be the application. The first question, in this case, is who may interpret a treaty? Several advances have been made to the idea that parties to a treaty will interpret it. So there is some privity in those parties that are not involved in the treaty cannot be included in its interpretation. The parties to a treaty can do this using definition in the treaty, agreements, interpretive letter, which in some cases may not be found in the body of the treaty but are in the minutes of negotiations agreed by parties. In a country, the domestic courts are allowed to interpret treaties, but the interpretation is only subject or somewhat valid within the court’s jurisdiction. So this means there will be no effect on international law. When it comes to international organizations, they have no express powers of interpreting, but international tribunals may interpret treaties upon given provisions. The International Court of Justice has a precise jurisdiction to interpret treaties unless they do not have the jurisdiction of the treaty[10].

Approaches in the interpretation of treaties

There is a famous Harvard Research in international law called The Law of Treaties, which has a general statement in relation to factors to be considered in the interpretation of treaties. This demonstrates the refusal to abide by the notion that there exist specific rules of interpretation that have been set out. There are three schools of approach to the interpretation of treaties and they include;

1. The Intention of the Parties School

This school of interpretation is to the idea that all the relevant and related conduct in relation to the treaty and the making of the treaty should be taken into consideration in trying to arrive at the intention of the parties if at all these parties should have a dispute in court that involves the interpretation of the treaty[11]. Conduct, in this case, involves the conduct of the parties before the treaty, the history of the parties, the aims the parties want to achieve using the deal, and the practice of the parties. This was illustrated in the Ambatielos case of 1952.[12]

1. Textual School

This school of interpretation is based on literal translations. This then means that it is the literal meaning of a word that will be used, and there will be no room for negotiations regarding the interpretation. The rationale of this school of thought is in the premise that the parties to a particular treaty are ratified in text, and thus preliminaries should not be included[13]. In this school, however, if the text or word in issue is intelligible, then there is room for recourse.

1. Teleological School

This is an entirely new school of thought, and it involves the aim and purpose unto which a treaty is made, and from there, the point of its departure is achieved[14]. In that case, therefore, preambles and statements of purposes are given precedent in this school of thought. Some scholars argue that this school delves into why the treaty was formed in the first place rather than the intention of the parties, which creating the treaty[15].

THE RULE OF INTERPRETATION

In this part of the paper, I will delve into a model that will describe the general terms or rather what is contained in international as to be the rules for the interpretation of treaties. The best way to go about this is first to define what interpretation is in the context of international law. There is an uncontroversial statement

‘‘The rules of interpretation laid down in international law contain a description of the way an applier shall be proceeding to determine the correct meaning of a treaty provision considered from the point of view of international law[16]’’

And before going further, we have to agree with that statement as that is the accepted definition of interpretation of a treaty. Well, we are in a free academic and intellectual atmosphere, and despite the definition being quite uncontroversial, it is bound to raise some questions. The primary and crucial questions that I will discuss include;

1. What is the meaning of the statement in the definition that states ‘‘the correct meaning of a treaty provision considered from the point of view of international law[17]”?
2. How best are the authorities mandated to interpret a treaty going proceed to find the precise meaning of a particular treaty from the international law perspective[18]?

Correct Meaning

There are sort of three meanings that can be adduced whenever the definition of a text from a treaty is discussed. The first is the utterance meaning, and these include the contents of the text that are being expressed. The second is the sentence meaning, and by this, we mean the manner in which there is an ideal succession of words that have been linked to making up the text. The third is the receiver meaning, and this is quite direct in that it involves the contents of the text as received. When the rules of interpretation from international law are involved in interpretation, then we realize that the precise meaning of a treaty does not usually correspond to the sentence meaning of that particular treaty[19]. The primary reason why the treaties are not expressions of utterances is the fact that treaties are made up of several statements. All things considered, then from the international law perspective, we are able to define the correct meaning of a treaty.

Appliers Meaning

To the ordinary reader and appliers of treaties, how do they proceed to apply or even understand the precise meaning of a treaty? It is only by adducing from a context is the reader or the applier able to arrive at the conclusion of what a text means[20]. The main problem with this is that readers will come up with several assumptions, and that leaves the text to the risk of misinterpretation. This is normal when it comes to words, and such is evident even in courts of law where there are legal professionals.

Effect and Relevance of the VCLT after 50 Years of Existence 

The Vienna Convention on the Law of Treaties was adopted in the year 1969 as we all know and effectively started functioning in 1980. In the 50 years that it has been in existence, it has come to be recognized as one of the essential instruments of treaty law. Of course, for it to be used in a country, it has to be ratified by states, and so far, 116 countries have done so. Some countries, for example, the United States, have not ratified the convention but recognize parts of the VCLT as a restatement of customary international law[21]. In the current global setting, the VCLT is used to apply treaties between different countries, which are recognized as international agreements and hence governed by international law. The VCLT has become an essential framework for international relations and dealings, and this has promoted order the relations. It has also become the symbol of international law, and this goes beyond the 116 countries that have actually ratified it. As we have seen, more countries rely on it despite not ratifying it. As a general rule in law, the law does not act retrospectively, and the VCLT is no different. This law is non-retroactive and only applies to treaties that were concluded after it started its operations that is in 1980.

Up to this moment, the VCLT has been crucial in addressing a range of topics that are related to the law of treaties. In detail, it has discussed the entry and conclusion of treaties, amendment, and modification, and finally, observance and application, just to mention a few of the aspects addressed. In courts and tribunals, the VCLT has also been influential in a series of different contexts, as earlier discussed. In this case, we refer to the courts and tribunals that have the jurisdiction of applying international law[22]. The continued importance of this convention in arbitration and solving disputes has been the discussion of many debates and need not be emphasized further.

The Vienna Convention has seen its success in quite a number of scenarios, for instance, in the Protection of the Ozone Layer and the Montreal protocol that delves into activities and substances that deplete the ozone layer. Scholars have advanced the idea the two mentioned treaties are perhaps the most successful international treaties that the world has seen. They are the most ratified treaties in the world and the history of the United Nations. To this fact, much of the treaties made have been a success, and this may be attributed to the global recognition of a problem and the will that we have to take necessary action so as to be able to address it. This is, of course, the goal of any treaty, and so far, we could say there are so many achievements. From the United Nations report, more than 560 multilateral treaties have been signed and are in action. Other treaties are entered into by individual countries for various purposes, including disbarment, protection of the environment, and with that, the world is a better place[23].

It has not been an easy road all along, and there have been challenges that have been experienced by the VCLT over the years. The applicability as described in article 31 has not been a problem, but the correct interpretation and hence the application has been a real issue for instance in practice in ICSID tribunals[24]. A quite precise and recent example of such is a misapplication that occurred in the Salini vs. Morocco case of 2001[25]. Among the central issues that surround the VCLT is also fragmentation, and this means that there is the co-existence of several regimes that sometimes have converging and diverging legal subjects and objects, and this may lead to disputes. The Vienna convention requires that the person who will interpret the treaty should consider other rules in international law that are relevant in the relations of the parties in dispute.

Bibliography

Andrea Bianchi. The Game of Interpretation in International Law in A. Bianchi, D. Peat and

2015. Windsor, (eds), Interpretation in International Law, 2015.

Bin Cheng, General Principles of Law as applied by International Courts and Tribunals

(London: Stevens and Sons, 1953)

Border and Transborder Armed Actions (Nicaragua v Honduras) (Jurisdiction and

Admissibility)[1988] I.C.J. Reports.

Duncan French, Treaty Interpretation and the Incorporation of Extraneous Legal Rules,

International and Comparative Law Quarterly, 2/2006.

Fachiri Alexander, Interpretation of Treaties, 23 AM. J. INT’L L. 745, 746 (1929).

Fauchald Ole Kristian. The Legal Reasoning of ICSID Tribunals – An Empirical Analysis,

European Journal of International Law, 2/2008, 301

Fitzmaurice Gerald G. The Law and Procedure of the International Court of Justice: Treaty

Interpretation and Certain Others Treaty Points, British Yearbook of International

Law, 1951.

Gottlieb Gidon, The Interpretation of Treaties by Tribunals, American Society of

International Law Proceedings, 1969

Schwarzenberger George, ‘Myths and Realities of Treaty Interpretation: Articles 27–29 of the

Vienna Draft Convention on the Law of Treaties’ (1968

Thirlway Hugh. ‘The Law and Procedure of the International Court of Justice 1960–1989

Hyde, The Interpretation of Treaties, 24 AM. J. INT’L L. 1, 19 (1930).

Lauterpacht Hersch. Restrictive Interpretation and the Principle of Effectiveness in the

Interpretation of Treaties, 26 Brut. YEARBOOK OF INT’L L. 48 (1949)

Sbolci Luigi, Supplementary Means of Interpretation, in E. Cannizzaro (ed.),

McDougal, H. D. Lasswell, and J. C. Miller. The Interpretation of Agreements and World

Public Order, 1967, 96

Berglin R. Hakan., ‘Treaty Interpretation and the Impact of Contractual Choice of Forum

Clauses on the Jurisdiction of International Tribunals: the Iranian Forum Clause Decisions of the Iran–United States Claims Tribunal’ (1986)

The Law of Treaties, Harvard Research in International Law, 29 AM. J.INT’L L. SUPP., pt.

III, 968, (1935).

Linderfalk Ulf, Is Treaty Interpretation an Art or a Science? International Law and Rational

Decision Making’, European Journal of International Law, 1/2015

United Nations Conference on the Law of Treaties: Official Records: Documents of the

Conference, A/CONF.39/11/

Weiler Joseph HH. The Interpretation of Treaties – A Re-examination, Preface, European

Journal of International Law, 3/2010

Wright Quincy. The Interpretation of Multilateral Treaties, 23 AM. J. INT’L L. 94, 104, 105

(1929).

Villiger Mark Eugen. Commentary on the 1969 Vienna Convention on the Law of Treaties,

2009.

[1] L. Sbolci, Supplementary Means of Interpretation, in E. Cannizzaro (ed.), supra note 1, 151.

[2] G Schwarzenberger, ‘Myths and Realities of Treaty Interpretation: Articles 27–29 of the Vienna Draft Convention on the Law of Treaties’ (1968) 9 Va J Int’l L 1, at 13, where he cites dictionaries and recalls: ‘In the Note Verbal of 10th October, 1967, from the Permanent Representative of the United States of America at the United Nations, it is justly pointed out that the “basic problem is that words can have many meanings, and what may be an ordinary meaning in one set of circumstances may be an extraordinary one in another.” U.N. Doc. A/CONP 3915, vol 1 at 205′.

[3]  United Nations Conference on the Law of Treaties: Official Records: Documents of the Conference, A/CONF.39/11/Add.2., p 39, para 8 and [1966] Yearbook of the I.L.C., vol. II, p 188, para 1.

[4] A. Bianchi, The Game of Interpretation in International Law in A. Bianchi, D. Peat and M. Windsor, (eds), Interpretation in International Law , 2015, 44.

[5] G.G. Fitzmaurice, The Law and Procedure of the International Court of Justice: Treaty Interpretation and Certain Others Treaty Points, British Yearbook of International Law,1951, 2.

[6] The Law of Treaties, Harvard Research in International Law, 29 AM. J. INT’L L. SUPP., pt. III, 968, (1935).

[7] Case concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. the Russian Federation), Order on preliminary measures , 15th October 2008; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, 1st April 2011, I.C.J. Reports, 2011, 70. available online at http://www.icj-cij.org/docket/ files/140/14801.pdf (last visited 6th December 2019)

[8] Border and Transborder Armed Actions (Nicaragua v Honduras) (Jurisdiction and Admissibility) [1988] I.C.J. Reports 69, at 105, para 94. This proposition was reaffirmed in In re Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria) [1998] I.C.J. Reports 275, at 297, para 39.

[9] R H Berglin, ‘Treaty Interpretation and the Impact of Contractual Choice of Forum Clauses on the Jurisdiction of International Tribunals: the Iranian Forum Clause Decisions of the Iran–United States Claims Tribunal’ (1986) 21 Texas International Law Journal 39, at 44

[10] H Thirlway, ‘The Law and Procedure of the International Court of Justice 1960–1989 Part Three’ (1991) LXII BYBIL 1, at 17. He further considered it ‘difficult to conceive circumstances in which the Court would find it necessary to reject an interpretation advanced by a party on the sole ground that it was not made in good faith.’

[11]  “A treaty is to be interpreted in the light of the general-purpose which it is intended to serve. The historical background of the treaty, travaux preparatoires, the circumstances of the parties at the time the treaty was entered into, the change in these circumstances ought to be effected, the subsequent conduct of the parties in applying the provisions of the treaty, and the conditions prevailing at the time interpretation is being made, are to be considered in connection with the general-purpose which the treaty is intended to serve.” 29 AM. J. INT’L L. SuPP., pt. III, 937 (1935).

[12] I.C.J. Reports, 1952,.p. 28.

[13]. See Lauterpacht, Restrictive Interpretation, and the Principle of Effectiveness in the Interpretation of Treaties, 26 BRuT. YEARBOOK OF INT’L L. 48 (1949) for an exciting discussion of the manner and means (subterfuges) used in allowing interpretations that would give effect to international agreements.

[14]  Fachiri, Interpretation of Treaties, 23 AM. J. INT’L L. 745, 746 (1929).

[15] M. S. McDougal, H. D. Lasswell, and J. C. Miller, The Interpretation of Agreements and World Public Order, 1967, 96.

[16] Hyde, The Interpretation of Treaties, 24 AM. J. INT’L L. 1, 19 (1930). See also YU, op. cit., p. 28

[17] Russell v Russell [1897] AC 395, at 436 per Lord Hobhouse; and see Bin Cheng, General Principles of Law as applied by International Courts and Tribunals (London: Stevens and Sons, 1953), Part Two, ‘The Principle of Good Faith’ at 105 ff.

[18] D. French, Treaty Interpretation and the Incorporation of Extraneous Legal Rules, International and Comparative Law Quarterly, 2/2006, 281

[19]  Wright, The Interpretation of Multilateral Treaties, 23 AM. J. INT’L L. 94, 104, 105 (1929).

[20] U. Linderfalk, Is Treaty Interpretation an Art or a Science? International Law and Rational Decision Making’, European Journal of International Law, 1/2015, 175

[21] M. E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties, 2009, 424.

[22] G. Nolte, Subsequent Practice as a Means of Interpretation in the Jurisprudence of the W.T.O. Appellate Body, in E. Cannizzaro (ed.)

[23] J.H.H. Weiler, The Interpretation of Treaties – A Re-examination, Preface, European Journal of International Law, 3/2010, 507.

[24] O.K. Fauchald, The Legal Reasoning of ICSID Tribunals – An Empirical Analysis, European Journal of International Law, 2/2008, 301.

[25] See Art. 59, STATUTE OF INT’L COURT OF JUSTICE. However, the opinions of International Tribunals are usually given universal respect.