The State has been projected to be the fulcrum of international law in its Westphalian foundation. However, the developments that occurred over the previous seven decades have sparked the still ongoing debate about whether the State still possess such centrality. This article examines the previous thesis in the field of treaty interpretation. In international law, States conclude, apply, and interpret their treaties. But sometimes they also entrust other bodies (i.e. courts, international organizations, commissions …etc.) with the function of interpretation. Hence, this article particularly questions to what extent States have been the ‘masters’ of their treaties when it comes to interpretation.
Much of the literature is about the eternal ‘textualism’, ‘intentionalism’, and ‘functionalism’ debates. While taking into account such debates, this article is interested in rising above the previous ‘technicalities’ and looking into the bigger game by tracing the real center of gravity in interpretation. In other words, who are ultimately the ‘masters’ of treaty interpretation? Are they the States (as traditionally conceived) or third-party interpretative entities? Or is it a constant state of flux with pushes and pulls?
The inevitability of the Master: The Author in the Art of Interpretation
Considering that States conclude their treaties and their consent is conceived to be one of the tenets of international law, the length of the ‘distance’ between States and the interpretation of their treaties has sparked many controversies. Some argue that any activity aimed to derive meanings from a text in isolation from its author is misleading. As Plato put it, ‘words can neither speak in their own defense nor come up with a satisfactory explanation of the truth.’ He reasoned that isolating texts from their authors assumes that words have some intelligence, although if we want an explanation, they just go on forever giving the same single piece of information. Consequently, a text always needs its father (author) to come to its assistance.
Besides, Foucault, drawing insights from arts and literature, observed that a text does not have the same effect in the same way at all times and in all civilizations. He also argued that considering the identity of the author, her biography, individual perspective, and social position explains not only the presence of certain [prima facie ‘ambiguous’ or ‘unreasonable’] events in her work, but also their later transformations, distortions, and diverse modifications. As reexamination of Marx’s modifies our understanding of Marxism, a reexamination of States, their agents, and environments modifies our understanding of their texts. Moreover, Allott highlights that State negotiators, attempting to achieve textual compromises or influence later interpretation, may purposefully insert creative ambiguities in the text and even surround it with ‘good’ travaux. Hence, identifying intended meanings in isolation of investigating the author/State could be sometimes illusive.
Banishment of the Master: States and Interpretation in the VCLT
Despite the previous centrality of the author in the art of interpretation, some see that the VCLT distanced the masters (States) from the interpretation of their treaties. The VCLT adopted a hierarchical rule that placed the ‘text’ (ordinary meaning) over extrinsic proof of State intention. McDougal asserted in the Vienna Conference that words do not have fixed or natural meaning and that by only examining the ‘circumstances of conclusion’ of the treaty a meaning could be ascribed to the text. He saw that because of its ambiguity, the criterion of ‘ordinary meaning’ opens the door to arbitrary interpretations and, hence, the meaning is to be found in the ‘factual’ and ‘social’ context. Besides, the reference to the ‘context’ and the ‘object and purpose’ under the general rule of interpretation is not remedial as both, according to the ILC commentaries, are identified by means only intrinsic to the text of the treaty.
Hence, one effect some see of the priority of the ‘text’, as adopted by the VCLT, is distancing the text from its drafters. Nevertheless, Barthes observed that by writing the meaning gets ‘disconnected’ from its author. Symbols have their own ‘practice’ and words have their own lives. He sees that every text is eternally written ‘here and now.’ It is misleading to ignore the ‘delay’ of the text in communicating its author’s meaning. In his view, the text must be indefinitely ‘polished’ by exploring its author, her psyche, and society.
Consequently, VCLT Article 31(4) was added to give ‘special meaning’ to a term ‘if it is established that the parties so intended’. Also, recourse to extrinsic proofs of intention (i.e. preparatory work, circumstances of conclusion) was permitted under Article 32 as ‘supplementary’ means. Nevertheless, such compromise was seen by some delegations in the Vienna Conference as artificial, because the intention of the parties could only be identified after recourse to extrinsic proofs; and yet, according to Article 32 an extrinsic proof could not be considered unless it is intended to only confirm the meaning resulting from the application of Article 31, or the application of the latter leaves the meaning ambiguous or obscure, or leads to a result which is manifestly absurd or unreasonable. As a result, Article 31(4) is seen by some as unworkable in some cases.
Furthermore, in an attempt to establish the subsequent control of States over the interpretation of their treaties, the VCLT stated that ‘subsequent agreements and practice’ shall be taken into account. However, the Vienna Conference excluded ILC draft Article 38 that allowed States to modify/refashion their treaties by their subsequent practice to accommodate new realities. The Italian representative, however, asserted then that Article 38 ‘reflected a legal fact which had always existed’ and that ‘[i]nternational law […] by reason of its nature must adapt itself to practical realities.’ Hence, another control tool of the master (States) is seen to have been taken away.
Moreover, in practice, interpretative entities adopted some approaches that led States to lose more control over the interpretation process. For example, some courts relied on the ‘subsequent practice’ of international organs (instead of States as per VCLT Article 31(3)b) in reaching interpretations that sometimes even deviate from explicit texts, like in the Namibia Advisory Opinion when the ICJ found that ‘abstention’ does not count as a veto in adopting UNSC resolutions (opting to rely on the practice of the UNSC instead of the clear text of Article 27 of the UN Charter). Also, the ECHR adopted the ‘living instrument’ approach to interpreting the Convention according to contemporary human rights ‘standards’ instead of the intention of the State-Parties at the time of conclusion. This led the Court in some cases to go against the clear intention of the drafters as shown from the travaux, like in the Young, James, and Webster v. UK case when the ECtHR found a violation of ‘freedom of association’ for dismissing employees who refused to join a trade union (although the travaux confirm that the right not to be compelled to join an association had been deliberately excluded).
Battles over the Master: States v. Interpretative Entities
As a consequence of pushing States more away from the interpretation of their treaties, battles have not been uncommon between States and interpretative entities over controlling the interpretation process, especially that the line between interpretation and law-making has not been always clear. Whenever an interpretative entity goes too far in extending its competence, the masters (States) push back. Besides, such deviation from State intention, as cautioned by Sivakumaran, might weaken the entity’s position and might even call into question its general authority.
The most recent battle is that between the U.S. and the WTO-AB. After persistently criticizing the latter for its ‘overreaching interpretations’, the former succeeded in shutting down the Appellate Body. This is besides the traditional battles between the U.S. and the ICRC over the weight to be given to State practice (and the views of NGOs) in the interpretation of IHL (see here) (not to mention the U.S. sanctions against the ICC). There are also push and pulls between several States and the HRC regarding its general role and other interpretational issues (i.e. reservations to human rights treaties). This led the U.S. to formally remind the HRC that ‘[t]he Committee is not a body established pursuant to the Covenant that is intended to provide authoritative interpretations of the treaty. […] The States Parties to the Covenant and Optional Protocol remain the authoritative interpreters of the instruments.’
Further examples are the frequent declarations issued by State-parties in response to expansive interpretations adopted by courts or tribunals (like within the ECHR and NAFTA), not mentioning the instances of State non-compliance with judgments/resolutions and/or withdrawing from the jurisdiction or membership of the entity exercising interpretation.
The revival of the Master: States Again
The previous battles subject the process of interpretation to constant changes over time in seek of the most efficient balance. For example, while previously the Pope & Talbot tribunal refused to consider the State-parties’ declaratory interpretation issued through the NAFTA-FTC (over ‘fair and equitable treatment’), later the ADF Group tribunal accepted such an interpretation confirming that ‘no more authentic and authoritative source of instruction on what the Parties intended to convey in a particular provision of NAFTA, is possible.’
Also, on the debate over the immunities of Heads of States under the Rome Statute, the ICC Appeals Chamber was careful to first invite State-parties to submit their observations. Besides, there are serious calls within the ASP for the ICC to establish a group of experts from State-parties to propose a declaration on this sensitive issue.
Moreover, to ensure broader acceptance of its interpretation of Article 6 (right to life) of the ICCPR, the HRC also requested comments from State-parties. As a result, the HRC took into consideration concerns expressed by State-parties regarding its ‘broad interpretations’ and reminding it to not ‘change or revise’ Article 6 and that its interpretations are ‘not legally binding’ (i.e. comments by Australia and Japan).
It remains to be seen how the ICJ in the Palestine v. United States case will deal with the U.S. declaration on the non-recognition of Palestine as a State within the VCDR, how the ICC will deal with alleged breaches by nationals of non-state parties (i.e. U.S., Israel, etc.) committed on a territory of a State-party, and the fate of the WTO-AB and its interpretational approach in the future.
Conclusion
To sum up, orientation with the author always helps in identifying the meanings she really intended. Some take on the VCLT that prioritizing the text over extrinsic means of interpretation has provided in some cases third-party interpretative entities with an unguided leeway in deciding which meaning they conceive as ‘ordinary’. This caused some battles to occur between States and interpretative entities. Nevertheless, this ongoing societal process between States and interpretative entities is not static but, in the words of Sivakumaran, is in a constant state of flux with expansions and contractions of the mandate, ebbs and flows, and pushes and pulls.
Islam A. Attia is a Ph.D. researcher at the Graduate Institute Geneva.
The views in this article are those of the author alone and do not necessarily reflect the views of any institution the author is affiliated to. All errors remain the author’s.
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