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References
Thus, in the Decision of 16 May 1980 relating to the case concerning the question whether the re-evaluation of the German Mark in 1961 and 1969 constitutes a case for application of the clause in article 2 (e) of Annex I A of the 1953 Agreement on the German External Debt made involving Belgium, France, Switzerland, the United Kingdom of Great Britain and Northern Ireland and the United States of America on the one hand and the Federal Republic of Germany on the other (R.I.A.A., vol XIX, p. 91 et seq.).
Ibid., p. 165. On this decision and the questions of interpretation see Juste Ruiz, J., “Delimitaciones marinas en...”, op. cit., pages 16 et seq.
This is the case of the rule of the natural and ordinary meaning of the terms, the rule of reference to the context and the rule of the practical effect, which “are all general rules of interpretation” (R.I.A.A., vol. XXII, p. 25, para. 72. This case is also interesting because both, Argentina and Chile, agree on the existing interpretative principles applicable to the interpretation of the judgement of 1902.
Decision of 16 August 1871 (Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. I, p. 30. In this regard, the decision of the arbitrator in the case of the Treaty of Limits of 1858, involving Costa Rica and Nicaragua, of 26 July 1899: “All concur that words are to be taken as far as possible in their first and simplest meanings — ‘in their natural and obvious sense, according to the general use of the same words’, ‘in the usual sense, and not in any extraordinary or unused acceptation’” (ibid., p. 31).
So, for example, in the “arbitral opinion” of the 20th February 1953, relating the case of the Gold of the National Bank of Albania: “Selon la doctrine unanime du droit des gens, il est indiqué de prendre comme point de départ du processus d’interprétation des dispositions conventionnelles entre Etats le sens usuel des termes employés par les Etats contractants, et de ne l’abandonner que si leur signification n’est pas compatible avec l’objet et le but de ces engagements” (R.S.A., vol. XII, pages 19–52).
In this regard, the decision of the Italian-U.S. Conciliation Commission (Peace Treaty of February 10, 1947) in the case of Albert Flegenheimer (No. 182), of 20 September 1958: “The starting point of the processus of all interpretation of an international treaty is the text on which the two Parties have agreed; it is evident that the main point of an international agreement lies in the concordant intent of such Parties and that, without this concordance, there are no rights or obligations which arise therefrom” (R.S.A., vol. XIV, pages 328–390; Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. III, t. 1, p. 112).
Thus, the Italian-U.S.Conciliation Commission (Peace Treaty of February 10, 1947), in its Decision of 12 December 1959 concerning the case of Eugenio Fubini et alt. (No. 201): “The rules on the art of interpreting international treaties require that the interpreter rely, first of all, on the text that must be applied, in giving the terms employed by the contracting States their natural meaning... In its case law, the Permanent Court of International Justice rendered the same opinion and refused to give any consideration to the provisions that were not to be found in the text” (R.S.A., vol. XIV, pages 421–434; Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. III, t. 1, p. 113).
Thus, in the Arbitral Award of 3 July 1958 concerning the Agreement on the German External Debt (of February 27, 1953), in which the Arbitral Tribunal stated, “According to the practice of the International Court of Justice, words and phrases are to be given their normal, natural and unstrained meaning in the context in which they occur” (Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. III, t. 1, pages 110–111).
Thus, in the Decision of 3 September 1924, in the case of the German Claims, where the Claims Commission declared: “C’est donc à celui qui prétend que néanmoins, dans le cas qui nous occupe, les expressions en question ont été employées dans un sens spécial qu’incombe le fardeau d’en fournir la preuve” (R.S.A., vol. I, pages 431–528; Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. II, p. 25). See also other aspects of these decision in relation to the expression “entreprise d’utilité publique” (ibid., pages 25-33).
Along the same lines and more recently, see the Judgement of 21 October 1994 of the Arbitration Tribunal in the case concerning the Dispute concerning the course of the frontier between B.P. 62 and Mount Fitz Roy (Argentina/Chile), op. cit., p. 103, para. 149).
French-Venezuelan Commission, 1902, Decision of the 31th July 1905, in the Heirs of Jean Maninat case (France/Venezuela), R.I.A.A., vol. X, p. 78; Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. I, p. 41).
David Goldenberg et Fils case, Decision of the 27th September 1928 (Coussiratcoustere, V., and Eiseman, P.M., op. cit., vol. II, p. 36).
The Case of the pensions of officials of the Saar Territory (Germany/Governing Commission of the Saar Territory), Decision of the 4th September 1934 (R.I.A.A., vol. III, p. 1564 et seq.; Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. II, p. 36).
So, for example, the Italian-U.S. Conciliation Commission in its Decision of 22 October 1953: “There can be no doubt (as to the scope of the treaty). But if there were any doubt, the rule should be invoked according to which the debtor party must profit from the benefit of the doubt and also that, in case of doubt, restrictive interpretation is necessary” (R.I.A.A., vol. XIV, p. 167; Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. III, t. 1, p. 131). See the Decision of 24 June 1961 of the same Commission, in the Mary De Pascale et al. case (no. MD/1018) (R.I.A.A., vol. XVI, p. 234; Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. III, t. 1, p. 132).
Decision of 26 January 1972 relating the case concerning claims arising out of decisions of the Mixed Greek-German Arbitral Tribunal set up under Article 304 in Part X of the Treaty of Versailles (involving Greece and the Federal Republic of Germany), (R.I.A.A., vol. XIX, p. 53).
Ibid.
Ibid., p. 55. In the same sense see the case concerning Filleting within the Gulf of St. Lawrence involving Canada and France, (R.I.A.A., vol. XIX, p. 248).
Decision of 26 January 1972 relating the case concerning claims arising out of decisions of the Mixed Greek-German Arbitral Tribunal set up under Article 304 in Part X of the Treaty of Versailles (involving Greece and the Federal Republic of Germany), (R.I.A.A., vol. XIX, p. 60).
In its words, “it must now be added that in the international legal system res judicata also applies to the meaning of the terms used in the propositions which make up an arbitral award and that this meaning cannot be altered by any use subsequent to the decision or by the evolution of the language, or by the acts or decisions of one of the parties to the dispute” (Decision of 21 October 1994, R.I.A.A., vol. XXII, p. 39, para. 122.
Cf. ibid., p. 25, para. 76.
Criterion used by the Parties and the Arbitrator in the arbitration of 1898–1902 (ibid., p. 47 et seq., para. 149. Also in p. 44, para. 135).
Ibid., p. 45, para. 137.
In order to determine exactly the meaning of this expression at that time (cf. ibid., p. 43, para. 128). On the other hand, the Tribunal considers that the concept of “water-parting” in the Award of 1902 is protected by the res judicata and is not susceptible of any subsequent change through usage, evolution of the language, or acts or decisions of one of the Parties to the dispute (cf. ibid., p. 43, para. 130).
Arbitral Award of 23 May 1911 (R.I.A.A., vol. XI, pages 267–308; Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. I, p. 31 et seq.).
So, for example, in the case concerning the Interpretation of the Air Transport Services Agreement, of 27 March 1946 (France v. United States of America): “Interpretation, as a logical operation that seeks to establish with the maximum possible certainty what the common intention of the Parties was, can only succeed in determining the meaning to be attributed to a term appearing in a clause of the treaty, in the framework and as a function of the clause as a whole. In its turn, a clause should be interpreted with reference to the content of the treaty considered in its entirety; and, if the agreement comprises other instruments which complete or modify it, all these instruments should, if necessary, be taken into consideration in the interpretation of the clause” (Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. III-1, p. 123). Likewise, see the case concerning the Interpretation of the Tardieu-Jaspar Agreement of 12 January 1930, Belgium v. France, (R.I.A.A., vol. III, pages 1703–1716; Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. II, p. 35), and the decision of 8 March 1951, case Società Mineraria e Metallurgica di Pertusola (n. 95), (R.I.A.A., vol. XIII, pages 179–197; Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. III, t. 1, p. 116).
In words of the Mixed Commission of Claims in the case Paula Mendel et alt. versus Germany (Germany/United States), in its decision of 13 August 1926: “But the language here relied on by the claimants cannot be construed as an isolated phrase. The pertinent provisions of the whole Treaty must be considered in the light of the conditions existing at the time of its conclusion, the nature and cause of the damages and injuries which had been inflicted and the allocation of responsibility therefore, in order to apply the master rule governing the construction of all treaties, that the intention of the parties must be sought out and enforced even though this should lead to an interpretation running counter to the literal terms of an isolated phrase, which read in connection with its context is susceptible of a different construction” (R.I.A.A., vol. VII, pages 380–389; Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. II, p. 34).
Thus: “The task of interpretation, however, is not exhausted by assigning to the words their linguistic meaning and arriving at the result by help of grammatical rules. Its aim is to get at the intention of the parties in so far as it can be said to have been expressed by the words. To that end it is here necessary also to look at the purpose of the phrase in the sentence as a whole and in general at all the circumstances which are capable of showing the idea the parties have wanted to express by the phrase” (case concerning Dampfschiffahrtsgesellschaft “Argo” v. The Hanseatic Maritime Agency, Arbitral Award of 21 June 1928, in Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. II, p. 35).
So, for example, in the case concerning Compagnie du Katanga versus Colonie du Congo Belge: “The general principles of law and equity make it incumbent upon the judge for the purpose of determining the object, the scope or the range of an agreement, to investigate the common intention of the parties, bearing in mind the state of affairs at the time of the conclusion of the agreement, and considering the circumstances, the personalities of the parties and the aim pursued by each of them in contracting” (B.Y.I.L., 1964, pages 184–194; Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. II, p. 35).
Cf. the case concerning the question whether the re-evaluation of the German Mark..., op. cit., pages 94 and 100.
So, for example, the French-Italian Conciliation Commission in its decision of 16 March 1956 concerning the Interpretation and Application of the Provisions of Article 78, para. 7, of the Peace Treaty concerning Ethiopian territory (No. 201): “it is a cardinal principle of interpretation that words must be interpreted in the sense they would normally have in their context, unless such interpretation would lead to something unreasonable or absurd” (R.I.A.A., vol. XIII, pages 636–658; Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. III, t. 1, p. 116 et seq.). Cf. also the decision of the French-Italian Conciliation Commission, of 9 July 1962, concerning the case Société des Comptoirs Dufay et Gigandet et al. (n. 284), in R.I.A.A., vol. XVI, pages 199–219; Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. III, t. 1, p. 120.
So, the Arbitral Tribunal for the Agreement on German External Debts (of February 27, 1953) in its decision of 26 January 1972: “74. The Agreement must be considered as a whole. The different clauses must be so interpreted as to avoid depriving any one of them of practical effect in order to credit others with a literal meaning” (I.L.R., vol. XLVII, pages 423–462; Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. III, t. 1, p. 126). Also the cases concerning maritime delimitation..., (op. cit., p. 173) and Filleting within the Gulf of St. Lawrence, (op. cit., p. 248).
So, for example, in the interlocutory award of the Iran-United States Claims Tribunal of 20 August 1986 concerning the case Islamic Republic of Iran v. The United States of America: “It is a general principle of treaty interpre-tation, recalled in Article 31, para. 2, of the Vienna Convention on the Law of Treaties, that the terms of a treaty must be construed in their context, which contains, inter alia, any agreement which was made between all the parties in connection with the conclusion of the treaty” (Coussiratcoustere, V., and Eiseman, P.M., op. cit., vol. III, t. 1, p. 127).
Cf. ibid., p. 254.
So, for example, the Mixed Claims Commission involving Germany and the United States of America in its decision of 13 August 1926, in the case Paula Mendel et alt. v. Germany: “Such a literal construction of the language quoted finds no support in the other provisions of the Treaty and is repugnant to the objects and purposes of the Treaty as a whole. It cannot stand alone and must fall” (R.I.A.A., vol. VII, pages 380–389; Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. II, p. 24).
Thus, the decision of April 15, 1935 concerning the Maison Hermann Schlessiger case, involving Germany and Rumania: “The result wished band the Parties of a convention can not be, however, considered as reached moreover the limits of the commitments really adopted band them to realize it; the result wished can not, in sane interpretation, serve to determine those commitments” (the original is in French. The translation was made band us; R.S.A., vol. III, pages 1641–1655; Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. II, p. 25).
Iran-United States Claims Tribunal, United States-Iran, Case No. A 17, Interim Judgement of 13 May 1985 (Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. III, t. 1, p. 109).
Case concerning Maritime Delimitation involving Guinea and Guinea-Bissau, op. cit., p. 176.
I.L.R., 1978, vol. LII, p. 132; COussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. III, t. 1, p. 109.
Op. cit., p. 109.
So, for example, in the case concerning the Interpretation of the Air Transport Services Agreement involving the United States of America and Italy, of 6 February 1948 (R.I.A.A., vol. XVI, pages 81–102).
Case concerning the Interpretation of the Air Transport Services Agreement of 27 March 1946, involving France and the United States of America, Judgement of 22 December 1963 (Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. III, t. 1. p. 155. In the same sense the Arbitral Commission on Property, Rights and Interests in Germany, in its decision of 26 May 1966 (ibid., pages 162–163), and the Iran-United States Claims Tribunal in its Declaration of 27 December 1983 (ibid., pages 166–167). See also the cases concerning re-evaluation of the German Mark, (op.cit., p. 104) and the maritime delimitation, (op. cit., p. 180).
Interpretation of the Air Transport Services Agreement of 27 March 1946 (Coussiratcoustere, V., and Eiseman, P.M., op. cit., vol. III, t. 1, p. 157). In the case of the Iran-United States Claims Tribunal, this states: “This practice must, however, be a practice of the parties to the treaty and one which establishes the agreement of the parties regarding the interpret of that treaty” (ibid., p. 167).
It uses the assertion of the I.C.J. in its advisory opinion concerning the International Status of South-West Africa, according to which: “Interpretation placed upon legal instruments by the parties to them, though not conclusive as to their meaning, have considerable probative value when they contain recognition by a party of its own obligations under an instrument” (I.C.J., Reports 1950, pages 135)“ (R.I.A.A., vol. XVI, pages 81–102; R.G.D.I.P., 1968, vol. LXXII, pages 461–486; Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. III, t. 1., p. 158 et seq.).
So, for example, in the case concerning the Beagle Channel, in which the Arbitral Tribunal states: “Under these circumstances the silence of Argentina permits the inference that the acts tended to confirm an interpretation of the meaning of the Treaty independent of the acts of jurisdiction themselves” (I.L.R., vol. LII, p. 224, para. 169 a); Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. III, t. 1, p. 165).
The Tribunal repeats the affirmation made by the Arbitrator in 1966 in the sense that, concerning the subsequent practice of the Parties, including the conduct of individuals and local authorities, the Court cannot understand how this practice can throw light on the intention of the Arbitrator (cf. op. cit., p. 50 para. 162).
Ibid., para. 163.
So, for example, in the judgement of 19 September 1949, concerning the Interpretation of article V of the Constitution of the United Nations Educational, Scientific and Cultural Organization (Unesco): “With regard to the travaux préparatoires preceding the Unesco Constitution, to which reference has been made, the tribunal is bound to remark that in any case it would only be proper for it to take these into account if the text of the Constitution were not sufficiently clear in itself-which in fact is not the case”. The arbitral Tribunal bases its argumentation on the jurisprudence of the P.C.I.J. concerning preparatory works (A.D., XVI (1949), pages 331–337. Also in Coussirat-Coustere, v. and Eiseman, P.M., Repertoire de la Jurisprudence Arbitrale Internationale, vol. III, t. 1, Nijhoff, Dordrecht, 1991, pages 135–136).
This criterion is based by arbitral case law on P.C.I.J. case law: “The documentary history of the negotiations, or as it is generally called the ‘legislative History’, is in fact rightly considered by case law and doctrine to be a proper subsidiary guide for the interpretation of treaties. This principle was initially asserted by the Permanent Court of International Justice in its Decision of February 4, 1932, regarding the Treatment of Polish Nationals in Danzig, in which it stated: ‘This text not being absolutely clear, it may be useful, in order to ascertain its precise meaning, to recall here somewhat in detail the various drafts which existed prior to the adoption of the text now in force’ (Series A/B, No. 44, p. 33). The same principle was subsequently formulated in the most explicit manner by the Court in its Decision of March 17, 1934, regarding the Lighthouses Case involving France and Greece, in which it stated: ‘Where the context does not suffice to show the precise sense in which the Parties to the dispute have employed these words in their Special Agreement, the Court in accordance with its practice, has to consult the documents preparatory to the Special agreement in order to satisfy itself as to the true intention of the Parties’ (Series A/B, No. 62, p. 13)” (Judgement of 22 December 1963 concerning Interpretation of the Air Transport Services Agreement dated March 27, 1946 involving France and the United States of America, R.I.A.A., vol. XVI, pages 11-71; R.G.D.I.P., 1965, pages 189–258; Coussirat-Coustere, V. and Eiseman. P.M., op. cit., vol. III, t. 1., p. 147 et seq.).
Ibid., Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. III, t. 1, p. 148.
So, for example, the Arbitral Tribunal in the case concerning the Agreement on German External Debts, in its Judgement of 16 May 1980 (op. cit., p. 109).
So, for example, in the case concerning the interpretation of Article V of the Unesco Constitution: “In any event the Tribunal could not have taken the verbatim record of the Conference of allied Ministers in London into consideration, as certain States which signed the Constitution did not participate in that Conference” and quotes as a precedent the Judgement of the P.C.I.J. in the case concerning the International Commission of the Oder, Series A/B, No. 36, p. 42 (A.D., 1949, vol. XVI, pages 331–337; Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. III, t. 1, p. 136).
Thus, in the case concerning German External Debts, Judgement of 3 July 1958, where after analysing the preparatory works of the Agreement in question, the Arbitral Tribunal states: “The Tribunal does not feel that in interpreting Article VII it can give any evidential value to such assertions, based as they are on no published record, even should the parties agree as to their accuracy” (International Law Reports, 1958-I, vol. XXV, p. 63; Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. III, t. 1, p. 136).
So, for example, the Arbitral Commission on Property, Rights and Interests in Germany in its decision of 14 November 1959: “The purpose to be considered is the common and reasonable purpose of the Convention at the time of its conclusion and not the purpose which each Party desired to achieve for its part, and still less that which the States which subsequently acceded to the Convention might imagine. The Commission is of the opinion that, by recourse to the travaux préparatoires, it will be possible to establish with certitude what was the common purpose of the Contracting Parties...” (Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. III, t. 1, p. 141).
So, for example, the Arbitral Commission on Property, Rights and Interests in Germany in its decision of 14 November 1959: “The principle of interpretation relied on by the complainant is thus by no means absolute. In international cases recourse has sometimes been had to the travaux préparatoires of multilateral treaties to which one of the States in a case was not a party and did not subsequently accede; thus the Permanent Court of International Justice, in the case of the Free Zones involving France and Switzerland, relied on the travaux préparatoires, including those relating to Article 435 of the Treaty of Versailles, a multilateral treaty which had not been signed by Switzerland and to which it has never acceded (...). The Commission is of opinion that the problem of recourse to the travaux préparatoires of a multilateral treaty, even if they were neither published nor made accessible to one of the Parties, should be left to the discretion of the judge and solved in accordance with the circumstances of the case” (ibid., p. 143). And it adds: it is “not by virtue of the rule of international law which prescribes that they cannot be invoked against acceding States, but by virtue of the particular circumstances of the case before it, since the consideration of these travaux préparatoires can induce it as well to confirm as to invalidate the interpretation given by Italy to the treaty provision in question” (ibid., p. 140).
So, for example, the Arbitral Tribunal of the Agreement on the German External Debts in its Judgement of 16 May 1980 concerning the Young Loan: “34. a few words seem necessary at this point to define the concept of travaux préparatoires. It must first be stressed that the term must normally be restricted to material set down in writing-and thereby actually available at a later day. This means that oral statements and opinions non recorded in minutes or conference papers cab apparently be regarded as a component of travaux préparatoires only in exceptional cases. They can in any event be considered only if made in an official capacity and during the negotiations themselves. (...). A further prerequisite if material is to be considered as a component of travaux préparatoires is that it was actually accessible and known to all the original parties.... While a State which accedes to a multilateral treaty at a later stage is able, before accession, to examine all the available travaux préparatoires, i.e. to make itself familiar with them, before it gives its ‘yes or no’,...” (Coussirat-Coustere, V., and Eiseman, P.M., op. cit., 1980, vol. III, t. 1, p. 151; I.L.R., vol. LIX, pages 544–545; R.G.D.I.P., 1980/4, pages 1158–1206).
So, the Arbitral Tribunal in the case concerning Filleting within the Gulf of St. Lawrence in its Judgement of 17 July 1986 stated: “That having been said, the Tribunal is well aware that international case law — in particular the decisions of the International Court of Justice — exercises the utmost caution in resorting to the preparatory work or the documentary background of negotiations leading up to the conclusion of the treaty. It is also aware of the restrictive attitude adopted at the Vienna Conference on the Law of Treaties following a United States amendment to do away with the hierarchy set up by the International Law Commission between the different means of interpretation” (Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. III, t. 1, p. 154).
So, in the Dispute concerning the course of the frontier between B.P. 62 and Mount Fitz Roy (Argentina/Chile), Award of 21 October 1994: “The interpretation of the 1902 Award contains no ambiguities which would justify application of the rule allowing recourse to the preparatory work” (R.I.A.A., vol. XXII, p. 49, para. 156).
So, “there is no doubt that each one of them shall equally serve to interpret the Treaty” (case concerning the Frontier in the Area of the Manica Plateau, Portugal/United Kingdom, Decision of 30 January 1897, Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. I, p. 42. The translation was made by us).
So: “a) The Commission does not deny that the texts of the Treaty (of Peace with Italy of 1947), prepared in three languages, all have the same value as authenticated originals, and that the interpreter must reconcile them one with the other” (Italian-United States Conciliation Commission, Decision of 20 September 1958 in the case Albert Flegenheimer (No. 182), R.I.A.A. vol. XIV, pages 328–390; Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. III, t. 1., p. 170).
Case concerning Krankenversorgung der Bundesbahnbeamten c. Republique d’Autriche, Binding opinion No. 37 of the Austro-German Tribunal, of 14 November 1962 (Coussiratcoustere, V., and Vincent, P.M., op. cit., vol. III, t. 1, p. 171).
So, for example, the Claims Commission in the case concerning the German Claims, in its decision of 3 September 1924: “The situation is so here: there is a clear text-the English text-and a text which is not clear and whose sense shall be derived by interpretation-the French text-. Both texts are equally authoritative. Both have been submitted to the signature of the Parties. In this case, it seems not to be allowed to make abstraction of the English text and to interpret the French text as the English text did not exist. On the contrary, the clear text, the English text, will provide the best middle to interpret the French text. Both texts are evidently called to express the same ideas. If there were two texts equally clears but not according between them, the preference of the text comporting less obligations to the obliged Party could be sustained. But if one of the texts is clear and not the other, the solution is to interpret the text less clear in the light of the other text and accordingly to the meaning of the terms resulting of this last text” (R.I.A.A., vol. I, p. 439; Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. II, pages 36–37).
For example, in the case concerning the Young Loan (n. 6–10), in which the Arbitral Tribunal of the Agreement on the German External Debts, of 27 February 1953, in its Judgement of 16 May 1980, states that: “The repeated reference by Article 33 (4) of the VCT to the ‘object and purpose’ of the treaty means in effect nothing else than that any person having to interpret a plurilingual international treaty has the opportunity of resolving any divergence in the texts which persists, after the principles of Article 31 and 32 of the VCT have been applied, by opting, for a final interpretation, fot the one or the other text which in his opinion most closely approaches the ‘object and purpose’ of the treaty. Application of article 33 (4) of the VCT to the case under decision means that the Arbitral Tribunal has the right-and the duty-to adopt that interpretation of the clause in dispute which most closely approaches the object and purpose of the L(ondon) D(ebt) A(greement) (of February 27, 1953)” (I.L.R., 1980, vol. LIX, p. 529 et seq.; R.G.D.I.P., 1980/4, pages 1158–1206; Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. III, t. 1., p. 175).
R.I.A.A. vol. XIX, p. 92. On the other hand, this case is also a good example of the combination of the interpretative criteria of the arbitral Tribunal. It uses the following: the natural and ordinary meaning, the context, the object and purpose of the treaty, the subsequent practice and the preparatory works.
Cf. ibid, p. 42, para. 127.
“This Court believes, therefore, that Chile’s extreme claim in 1898–1902 shall must be sought in that country’s presentations before that Arbitrator” as it was not possible to interpret what was decided at that time “in accordance with criteria submitted to the 1991 Court but which were not validated in the original decision, for that would be to take up matters which were not covered by the 1902 Award and which, in consequence, cannot serve as a basis for interpreting it” (ibid., p. 29, para. 85).
Cf. ibid., p. 31, para. 91.
Ibid., p. 31, para. 94. The Tribunal also concludes that Chile’s extreme claim in 1898–1902 concerning the frontier sector submitted to the decision of the Court, “was the natural and effective continental divortium aquarum, except in the case of Mount Fitz Roy” (ibid., p. 36, para. 109).
Ibid., p. 69, paras. 95–96. Regarding this last the Tribunal states that in 1902, “there were still unexplored areas of the frontier and other areas which were insufficiently known, something which is not the case today. Chile argued that neither the inaccuracy of the maps nor the lack of knowledge of a region could serve as an excuse for not applying the invariable criterion of demarcation which, in its opinion, was the continental water-divide. It asserted that the same principles should also be applied to the unexplored regions, even when the outcome was uncertain, and that it was ready to accept the consequences. Thus, the conclusion of this Court to the effect that Chile claimed in any event the natural and effective continental water-parting has been established on the basis of the geographical knowledge of 1902, i.e., in strict conformity with the principle of contemporaneity” (ibid., p. 34, para. 97).
Permanent Court of Arbitration, Judgement of 25 June 1914, Timor Island (R.I.A.A., vol. IX, pages 490–509; Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. I, p. 34). See also in the same line the decision of the Arbitral Tribunal of 22 January 1926 concerning the case Cayuga Indians v. United States, (ibid., pages 35–36); R.S.A., vol. VI, pages 175–190.
Thus, for example, the decision of the Advisory Panel of 30 November 1965, in the case concerning the Legality of a system for the selective adjustment of quotas (International Coffee Agreement): “The principle of ‘effectiveness’ in the interpretation of treaties, whatever its scope, cannot justify so sharp a departure from the structure established by the parties” (I.L.R., 1965, vol. LXII, p. 428; Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. III, t. 1, p. 128).
The case of the Dispute concerning the course of the frontier between B.P. 62 and Mount Fitz Roy (Argentina/Chile), Decision of 21 October 1994, p. 45, para. 137. In this case the Tribunal states that the term “local water-parting’” used by the Arbitrator in 1902 in this sector, “must be interpreted so as to have an applicable meaning and outcome” (ibid.).
In this sense see the decision of 17 July 1986 in the case concerning Filleting within the Gulf of St. Lawrence between Canada and France (R.G.D.I.P., 1986, pages 734–735; Coussirat-Coustere, V., and Eiseman, P.M., Ibid., p. 129) and the decision of 26 January 1972 concerning Claims arising out of decisions of the Mixed Greek-German Arbitral Tribunal set up under Article 304 in Part X of the Treaty of Versailles (involving Greece and the Federal Republic of Germany), (R.I.A.A., vol. XIX, p. 60).
Iran-United States Claims Tribunal, interlocutory award of 20 August 1986 (Coussirat-coustere, V., and EISEMAN, P.M., op. cit., vol. III, t. 1, p. 131).
So in the Judgement of 26 January 1972 in the case concerning Claims arising out of decisions of the Mixed Greek-German Arbitral Tribunal set up under Article 304 in Part X of the Treaty of Versailles (involving Greece and the Federal Republic of Germany), (R.I.A.A., vol. XIX, p. 53).
The object and purpose do not form any independent basis for interpretation “but rather factors to be taken into account in the determination of the ‘meaning to be given to the terms of the treaty’” with special incidence in the interpretation of treaties authenticated in two or more languages (cf. the cases Iran-United States of America, Case N. A 17, op. cit., p. 109; Maritime Delimitation involving Guinea and Guinea-Bissau, op. cit., p. 176; and reevaluation of the German Mark, op. cit., p. 109).
Cf. the case quoted in the preceding footnote as well as those concerning the Agreement on the German External Debts (I.L.R., vol. XLVII, pages 423–462; Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. III, t. 1, p. 126); Maritime Delimitation... (op. cit., p. 173); Filleting within the Gulf of St. Lawrence (op. cit., p. 248); and Iran v. United States of America (Coussirat-Coustere, V., and Eiseman, P.M., op. cit., vol. III, t. 1, p. 127).
Cf., for example the case concerning the Agreement on the German External Debts (op. cit., p. 151).
Cf. the cases concerning the re-evaluation of the German Mark (op. cit., p. 109); and Loan Young (n. 6–10) (op. cit., p. 52972–530).
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(2007). Arbitral Tribunals. In: Sovereignty and Interpretation of International Norms. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-540-68207-3_7
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