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Patterns of Treaty Interpretation as Anti-Fragmentation Tools pp 359–377Cite as

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Abstract

The process of adjudication in international law is thought to involve a wide range of activities and institutions. Some of the judicial institutions adjudicating treaty disputes have been perceived as ‘self-contained regimes’ and more politically active than others (especially the WTO, ECtHR and CJEU), promoting judicial activism and thus becoming a potential threat to the global unity and efficacy of the international legal order. This judicial activism of some international courts and tribunals has generated a fear of fragmentation of international law and a wide ongoing debate. However, in order to admit or reject the theoretical proposition advanced in the legal scholarship that the proliferation of international judicial bodies may create chaos in the international legal system, leading to fragmentation of international law, I considered it essential to examine comparatively in this book the practices of the general (ICJ) and two specialised courts (ECTHR and WTO) on the application of general rules of treaty interpretation of public international law as reflected in the 1969 VCLT’s general rule of interpretation. What I did not purport, however, to provide in this book was an extensive argument/discussion or contribution to the debate related to the fragmentation of international law. My goal was to provide several specific key findings related to the treaty interpretative trends of two different international specialised courts, the ECtHR and WTO, compared with the ICJ, as a general international court, and to to assess the impact of the two specialised courts’ practices on treaty interpretation upon the international law’s unity.

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Notes

  1. 1.

    See Chap. 2 of this book.

  2. 2.

    Id.

  3. 3.

    Guillaume (2011), pp. 7 and 23. In the author’s view, such utilisation of the precedent is a guarantor of certainty and foreseeability in the application of law by any dispute settlement system, and plays an important role in ‘the organisation of a decentralised jurisdictional system, such as the one existing in international law’.

  4. 4.

    Guillaume (2000).

  5. 5.

    The ECtHR often referred to Golder in other cases.

  6. 6.

    See Chap. 5 of the book. A direct reference to the ICJ practice (although scarcely in the ECtHR’s practice), could be seen, e.g., in the Case of Mamatkulov and Askarov v. Turkey, Case of Stoll v. Switzerland.

  7. 7.

    Prior to the VCLT entered into force, e.g., the Vagrancy case, and also after it, see, e.g., the Catan case (Chap. 5 of this book).

  8. 8.

    Lauterpacht (1955), p. 24.

  9. 9.

    See Crawford (2014). As observed by Crawford, the WTO is admitted as ‘one of the most influential users of the VCLT on matter of treaty interpretation’. Crawford's main argument is that conflicts between general and specific norms of international law ‘may be prevented, and a workable compromise reached’.

  10. 10.

    See Chap. 6 of this book, in, e.g., US-Shrimp (WTO, 1998); Japan-Alcoholic Beverages (WTO, 1996); Korea – Dairy Products (WTO, 1999) cases.

  11. 11.

    Even if some of rules only confirm the result found initially on other method/s and rules’ basis.

  12. 12.

    See on this aspect, e.g., Linderfalk (2007).

  13. 13.

    See discussion on this point in Chap. 5 of this book, e.g., Fitzmaurice (2013).

  14. 14.

    See on this aspect Letsas (2010), p. 267. As observed by Letsas, an approach which adapts the meaning of human rights to contemporary circumstances could not contradict the abstract belief of the drafters in the moral objectivity and universality of human rights, since they intended ‘to protect the fundamental rights that people are entitled to’.

  15. 15.

    Draft Articles on the Law of Treaties with commentaries (1966), p. 200.

  16. 16.

    See Chap. 6 of this book, e.g., the Brazil Aircraft case.

  17. 17.

    Yin (2003), p. 11. According to Yin: ‘case studies like experiments are generalisable to theoretical propositions and not to populations of universes. In this sense, the case study, like experiment, does not represent a “sample”, and in doing a case study [the] goal will be to expand and generalise theories (analytic generalisation) and not to enumerate frequencies (statistical generalisation)’.

  18. 18.

    See Bankovic and Stoll cases analysed in Chap. 5 of this book, or Al-Adsani in respect of the application of Article 31(3)(c) VCLT- as illustration of a deviation from substantive (international) law.

  19. 19.

    Which also implies resort to the travaux preparatoire. See discussion on this aspect in Chap. 3 of the book.

  20. 20.

    It is regarded as the effectiveness principle. See on this important aspect Fitzmaurice and Merkouris (2010).

  21. 21.

    Fitzmaurice and Merkouris (2010), p. 155 (emphasis added).

  22. 22.

    Id, the rest of comments remain. The authors note that ‘treaties are to be interpreted as a whole, and particular parts, chapters or sections also as a whole’ (it was regarded as the principle of integration).

  23. 23.

    Id. The authors admit that according to the effectiveness principle—ut res magis valeat quam pereat—, treaties must be ‘interpreted with reference to their declared or apparent object and purpose, and particular provisions are to be interpreted as to give fullest effect consistent with the normal sense of the words and with other parts of the text, in such a way that a reason and meaning are to be attributed to every part of the text’. See also Sir Fitzmaurice (1957) for a discussion on the principles of treaty interpretation.

  24. 24.

    See Chaps. 5 and 6 of this book.

  25. 25.

    See e.g. Article 1 of the European Convention of Human Rights (discussed in Chap. 5 of this book), entitled: ‘Obligations to respect Human Rights’, or Article XX of the WTO Agreement (discussed in Chap. 6 of this book), entitled ‘General Exceptions’, in particular paragraph (g).

  26. 26.

    E.g. Loizidou, Catan, Golder, Lawless, Mamatkulov (Chap. 5 of this book).

  27. 27.

    E.g. Bankovic, Stoll, Witold (Chap. 5 of this book).

  28. 28.

    See also other examples, e.g., Al Adsani (2001), EC-Biotechnical Products (2006), Beef Hormones (1998) which show a deviation from general international law rules (under ‘systemic integration’ reflected in Article 31(3)(c) VCLT) (Chap. 3 of this book).

  29. 29.

    See e.g. Wellens (2003), Abi-Saab (1998), Pauwelyn and Salles (2009), Charney et al. (2002), Letsas (2012). According to Letsas (at p. 23) the ECtHR must be consistent with itself in applying the Convention’s rights, which implies that this Court simply ‘cannot rely on one principle to decide a case and then offend that very same principle to decide the next case’.

  30. 30.

    See Chap. 2 of this book for more on this argument, authors, e.g., John Finnis, Jean-Marie Dupuy, Jonathan I. Charney, George Abi-Saab, Sang Wook Daniel Han, etc.

  31. 31.

    Although inconsistencies in approaches to interpretation on the same issue exist, it is less likely that such deviations become a pattern in these courts’ practice.

  32. 32.

    See also those examples of deviation in international law by application of Article 31(3)(c) of the VCLT, such as Al Adsani (2001) at the ECtHR, or EC-Biotechnical Products (2006) and Beef Hormones (1998) at the WTO.

  33. 33.

    E.g., the Stoll, Brazil Aircraft cases.

  34. 34.

    See also Al Adsani (2001), EC-Biotechnical Products (2006), and Beef Hormones (1998).

  35. 35.

    The number of such cases, both at the ECtHR and WTO appears statistically insignificant in relation to the cases in which these courts apply the customary rules of treaty interpretation with consistency.

  36. 36.

    See, e.g., the recent cases: Catan, or Al-Skeini at the ECtHR as to the issue of ‘jurisdiction’ under Article 1 of the ECHR (Chap. 5), where the Court applies the exception to the principle that jurisdiction under Article 1 is limited to a State’s own territory, a different approach than in Bankovic. Also in regard to the Brazil Aircraft case (discussed in Chap. 6) at the WTO, later, in the Second Recourse by Canada (Brazil-Export Financing Programme for Aircraft, Second Recourse by Canada to Article 21.5 of the DSB, WT/DS46/RW/2, 26 July 2001), the panel corrected the decision in favour of Brazil.

  37. 37.

    See for this discussion (Chaps. 5 and 6 of this book), e.g., International Law Commission Report (2006). In brief, the ILC admits (at p. 85) the compliance, in general, of treaty bodies in human rights (such as the European and Inter-American Courts), and also in trade (WTO panels and the Appellate Body) with rules and principles of general international law (relating to, e.g., treaty interpretation, statehood, jurisdiction, immunity, as well as a wide variety of principles of procedural propriety). See also in this regard: Koskenniemi (2004), Simma and Pulkowski (2006), or Charney (1998a, b). Generally, both the ECtHR and WTO are admitted in the scholarship as specialised regimes that do not lose track of one another, creating norms which may be in conflict with norms emanating from other specialised regimes (, i.e., norms emanating from the WTO take into account environmental rules, or the ECtHR sometimes invoke the practice of the IACHR, or of the ICTY’s).

  38. 38.

    However, the ECtHR makes an express reference to the ICJ less than the WTO, but this reference to the ICJ is increasingly, as, for example, Judge Higgins observes (see Chap. 2 of this book, the concept of ‘self-contained regime’).

  39. 39.

    More than the ECtHR, the WTO adjudicative bodies tend to emphasize the application of customary rules of treaty interpretation in their disputes, given the express demand of Article 3.2 of the DSU as the guideline for interpretating the GATT/WTO Agreements.

  40. 40.

    Such an approach is explained in the scholarship through notions as legal history of the community; interpretative community (the existence of an already assumed interpretation on a text, what other authoritative interpreters have held similar texts to mean); or ‘common standard justifications’.

  41. 41.

    See for such argument, e.g., Charney (1998a, b), p. 705.

  42. 42.

    Sheeran (2013), p. 82.

  43. 43.

    Id.

  44. 44.

    See for this opinion, e.g., Koskenniemi (2007).

  45. 45.

    Lauterpacht (1982), p. 282.

  46. 46.

    Guillaume (2011).

  47. 47.

    Id.

  48. 48.

    Id.

  49. 49.

    The frequent use by the courts (ECtHR and WTO) of some of their leading cases, such as Golder, Loizidou, Mamatkulov at the EctHR; or Gasoline, US-Shrimp/Turtle, Japan Alcoholic Beverages II at the WTO, indicate the tendency of these courts to rely on their own precedents.

  50. 50.

    For the idea that proliferation of disputes settlement bodies is beneficial for international law, see (in Chap. 2 of this book), e.g., Boyle (1997), Han (2006), Charney et al. (2002), Pauwelyn and Salles (2009), Spelliscy (2001), Kingsbury (1998), Abi-Saab (1998).

  51. 51.

    See detail on this subject in Chap. 2 of this book.

  52. 52.

    Lauterpacht (1950), p. 61.

  53. 53.

    As is for example: the right: to life, liberty, to a fair trial, to privacy; freedom of: speech, thought, education, conscience and religion; use of torture; when states crack down on dissent; clandestine mass data-collection/surveillance on internet; terrorism, etc.

  54. 54.

    See more on this aspect Khrebtukova (2008).

  55. 55.

    Shelton (2003), p. 95.

  56. 56.

    Id.

  57. 57.

    Carter (1999), p. 319.

  58. 58.

    Donnelly (2013), p. 97.

  59. 59.

    Id.

  60. 60.

    Id.

  61. 61.

    Patomäki (2008), p. 222. The author clearly captures this phenomenon as an existing struggle over which treaties should prevail in any given context, notably, whether the norms of human rights should prevail over the rules and principles of the WTO.

  62. 62.

    Petersmann (2006), p. 273.

  63. 63.

    This reference is to be found in the Annex Relating to the Implementation of Part XI of the Convention (UNCLOS), in Section 6 concerning Production Policy, which provides: ‘(b) The provisions of the General Agreement on Tariffs and Trade, its relevant codes and successor or superseding agreements shall apply with respect to activities in the Area.’

  64. 64.

    Id.

  65. 65.

    Jackson (2006), p. 87.

  66. 66.

    Understanding WTO: A unique contribution, paper available at: http://www.wto.org/english/thewto_e/whatis_e/tif_e/disp1_e.htm (last visited May, 2012).

  67. 67.

    Consequently, the international legal system should absorb all kind of issues, in the forms of disputes between States, individual and State, interpretation of treaties/agreements, states responsibility; prosecution of individuals for wars, genocide, or crimes against humanity; international trade disputes and others. See on this argument, e.g., Han (2006), Rao (2003), Charney et al. (2002).

  68. 68.

    See more on the argument that specialised regimes relate to international law, e.g., Simma and Pulkowski (2006), ILC Report (2006), Lamy (2006), Cameron and Gray (2001), Marceau (2006).

  69. 69.

    Cottier et al. (2005), p. 5.

  70. 70.

    Id.

  71. 71.

    Jackson (2006). Also, the Law of the Sea Convention includes explicit reference to GATT rules, and vice-versa, as the LOS Convention rules may be relevant for the interpretation of various WTO exceptions.

  72. 72.

    See in this respect, e.g., Klabbers (2010), p. 31.

  73. 73.

    International Law Commission Report (2006), p. 578 (emphasis added).

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    Liliana E. Popa

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Popa, L.E. (2018). Conclusions. In: Patterns of Treaty Interpretation as Anti-Fragmentation Tools. Springer, Cham. https://doi.org/10.1007/978-3-319-65488-1_7

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