Is there a subject-matter ontology in interpretation of international legal norms?

Book Chapter

Reference

Is there a subject-matter ontology in interpretation of international legal norms?

KOLB, Robert

KOLB, Robert. Is there a subject-matter ontology in interpretation of international legal norms?

In: A Farewell to fragementation: Reassertion and convergence of International Law . Cambridge Univ. Press, 2015. p. 473-485

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http://archive-ouverte.unige.ch/unige:93261

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Is there a subject-matter ontology in interpretation of international legal norms?

ROBERT KOLB

I. Introduction

The title of this short chapter may be viewed either as being thought- provoking or rather as being obscure. In any event, it will not be very appealing for the lawyer, who tends to have a sort of inherent repulsing reaction against the speculations of philosophy. However, the meaning intended to be given to this title is quite simple (and the philosophical twist of it allows us to start this chapter on interpretation by an interpretation):

Are there areas or questions of international law where special rules of interpretation, at variance with the general rules enshrined in the Vienna Convention on the Law of Treaties (VCLT) of 1969 (Articles 31-3), shall prevail? Are there subject-matters where the object and purpose of the regulation is such that a set of special rules, or at least a distinctive com- bination of the general elements of interpretation, tends to impose itself?

These not wholly unimportant questions will be pursued here in a quite short and limited compass. The point is not to vainly attempt to produce a monographic or exhaustive approach within the four narrow corners of a chapter, but rather to shed some preliminary light on this question. ¹

11. General considerations on the legal regime of interpretation One of the greatest conundrums in interpretative theory is the necessity to balance the 'rule-orientedness' of the whole process with its inevitable

1 For more detailed references on many aspects discussed here, see R. Kolb, Interpretation et creation du droitintemationa~ Bruylant, Brussels, 2006. The question of the 'regional ontol- ogy' is addressed there at pp. 202-19, in terms different than in the present short chapter.

For a recent general overview over interpretation, see also R. Gardiner, Treaty Interpreta- tion, Oxford University Press, 2008. See also E. Bjorge, The Evolutionary Interpretation of Treatie5, Oxford University Press, 2014.

473

474 ROBERT KOLB

'open-endedness'. There must be constraint and freedom at once in inter- pretation; it is not easy to see exactly what parts each of these necessary ingredients shall hold, nor how exactly to reconcile them. On the one hand, it is now common wisdom that interpretation is an 'art' more than a 'science'; that experience plays a greater role in it than sheer knowledge;

that the relevant considerations a~e too manifold as to be able to be pressed into a rigid straightjacket of more or less automatically applicable legal rules. On the other hand, the practical lawyer and even more intensely the legal order as such, need a certain degree of certainty and direction as to the process of interpretation. Constant and inevitable interpreta- tive processes indeed permeate all the life of the law. They are the daily occurrence par excellence of the lawyer. If that process were completely open-ended and accommodated indifferently all types of argumentative combinations, there would be a sort of 'anything goes' -reality, which in turn would turn the whole legal order with its normative pretence into illusion and delusion.

Thus, we end up in some form of lenient paradox with two branches.

First, theoretical enquiry (legal hermeneutics) and practical observation show us that interpretative processes are difficult to encapsulate in rigid norms. These could not fulfil their function since they would not be able to reflect all the complex reality of understanding of norms and/ or social reality. Therefore the lawyers would flout them by hiding the true pro- cesses of interpretation behind the cloak of rules which they would only lexically claim to abide by. But, second, such an open-ended approach puts into vital jeopardy the legal· norm itself, since that norm will be realized only through interpretations. Legal certainty and previsibility, which are cornerstones of the modern constitutional and legal systems (contrary to the legal approaches of the Middle Ages² ), would become simple words, without a distinctive reality. Unlimited subjectivism could and probably would reign. Observation of reality seems to buttress the impossibility of 'rules' on interpretation; legal policy suggests that a cer- tain degree of these rules is indispensable. This conflict has to be somehow mediated.

This necessity is all the more present in international law. There is no centralized legislator in international society. The law is created in a decentralized way, by agreements and by practices of the legal subjects.

2 On the crisis and replacement of the Middle Ages pluralistic approach by modern codi- fication, see, e.g., A. Cavanna, Storia del diritto moderno in Europa, Le fonti e il pensiero giuridico, vol. I, Giuffre, Milan, 1982, p. 194ff.

IS THERE A SUBJECT-MATThK ONTOLOGY~ 475

These norms are hence already fragmented; they tend to be often vague or unclear; they are meant to last for long time spans (consider the difficulty in modifying treaties), a fact which increases interpretative problems; they are much more than municipal norms prone to fluctuations and power policy twists, or at least to a quite interested if not biased interpretation in self-interest by the plurality of sovereign States. International law is much more rarely than municipal law interpreted by an independent and impartial third party, vested with adjudication powers. The general rule is here rather self-interpretation by each subject of the law. ³ In such a system, open-ended rules of interpretation (like those that had been proposed by the New Haven School⁴) lead easily to a loss of all certainty of the norms, which are indeed literally dissolved. In effect, this is then leading back to the prevalence of the interpretations of the stronger States over those of the weaker. If modern legal theory and some demands of reality commend flexibility in interpretation, another aspect of reality and sound policy aspects of international law demand some clear guidance as to how the norms shall be interpreted in order not to induce their progressive dissolution and manipulation.

The attempt to square that circle is to be found in Articles 31-3 of the VCLT of 1969. By giving some prevalence to the ordinary meaning and by pushing back the true but unexpressed (and hence to some degree speculative) will of the parties or travaux preparatoires, the Convention has operated policy choices in favour of security and equality of States. At the same time, by combining flexibly a whole series of main or secondary means of interpretation, the Convention returns back to accommodating a multiple reality, which cannot be reduced to the rigid sway of one or two generally prevailing elements. Moreover, the Convention does not purport to codify all rules or canons of interpretation, and even less all arguments the lawyer constantly uses in that process (analogy, a contrario, a fortiori, ejusdem generis, in dubio pro libertate, etc.) The success of the VCLT articles in the case-law mainly stems from the fact that the drafters seem to have succeeded in finding a viable balance between, on the one hand, the imposition, by way oflegal norms, of a degree of certainty and of

3 See, e.g., P. Klein, 'Les pretentious des Etats

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4 M. McDougal, H. Lasswell and J. C. Miller, The Interpretation of International Agreements and World Public Order, M. Nijhoff, Dordrecht/Boston/London, 1994. In the same vein, see

T. H. Cheng, When International Law Works- Realistic Idealism after 9 I 11 and the Global

Recession, Oxford University Press, 2012 (and most markedly on p. 302, where it is bluntly said that international law is just the sum of 'decisions of policymakers).

order in the interpretive process, and, on the other hand, of a appreciable leeway for flexibility, combination of elements and adaptation.

Even under the VCLT (and the practice which first nourished it and later stemmed from it, with its stress laid on plain meaning of the text), there remain several other elements which allow the interpreter to go far beyond a seemingly clear text if that is felt as being necessary in context.

Hence, the interpretation process remains to some extent a set of keys, where one or the other (or a combination of them) may open the door, and where the exercised eye may more easily recognize which keys or combinations thereof may open a particular lock.

If that is true, one easily understands that most different international actors can easily refer themselves to the set of general rules of the VCLT of 1969 in the most differing subject-matters: for example, the World Trade Organization (WTO) appellate bodies in their jurisprudence, or the International Centre for Settlement oflnvestment Disputes (ICSID) tribunals in theirs. There is enough flexibility in these general VCLT rules to be able to refer to them in the most diverse areas. Hence, at first sight, no 'secessionist' claims for special rules of interpretation needed to arise.

It did not prove necessary to fragment the regime of interpretation in a set of general rules (VCLT) and in different sets of special rules prevailing in this or that area of international law as leges speciales. At best, one could find distinctive molecular-interpretative combinations in certain areas of the law, i.e. particularly significant recourse to some elements or a combination of elements of interpretation.

Ill. Factors for the modulation of interpretations

The general regime of the VCLT- which can easily be also applied by anal- ogy to non-State entities as the ICSID case-law shows -leaves sufficiently ample room for modulation in the interpretative process. What factors may here play a role for inducing different interpretative approaches?

There are many such factors and, by large, not only subject-matter speci- ficities, to which we shall revert later.

1) One such factor is the subject of interpretation (who interprets?). The 'who' is clearly a crucial element in the realm of interpretation. It is not the same if the International Court of Justice (ICJ), or say the US or Russia, interpret this or that norm of inter-State conduct. The eternal question 'quis judicabit?' leads back to the not less eternal maxim 'le qui l'emporte souvent sur le commenf. This is clearly also true for subject-matters where it is claimed that there exists some

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specificity in the interpretative rules applicable. One such area is the law of international institutions (see below, section N). The organs of the organization, especially those that are not composed of State delegates, tend to develop a particular faithfulness to the aims and objectives of the organization. They will hence often privilege tele- ological, dynamic and purposive interpretations, able to overcome technical difficulties in the accomplishment of the organization's mis- sion in order to keep it on the path of new demands and new necessities of its life. This process is particularly accentuated in times where there is some political faith in international organizations and when inter- national cooperation is gaining momentum. ft is possible to find such interpretations, for example, in the advisory opinions of the ICJ (the principal judicial organ of the UN, Article 92 of the UN Charter), from 1949 (Reparation of Injurid) to 1962 (Certain Expensd). It is sufficient to shift to the member States in order to be confronted by a different approach. Some of them will follow or indulge in the dynamic and expansive approaches mentioned. But others will rather stress the principle of specialty of powers; will insist on textuality of the constitutive instrument; and will underscore the necessity of an agreed subsequent practice or rather the need for formal modifica- tion of the constitutive instrument, etc. Consider the position of the socialist block in the UN during the Cold War, or even the position of France on peacekeeping operations during the 1960s. Particular inter- ests dictate here quite different interpretation approaches. Stress will thus be laid by each actor on different aspects of interpretation. Or, as a last example: the interpretations by the League of Nations mandate commissions differed signi£cantly from those ofthe mandated States.

They were much bolder and much more evolutive than those of the latter, which tended to stress only the rights and powers they thought to be able to derive from the mandates agreement, turning down the duties towards the League or later the UN.⁷

2) Second, the goal of a particular interpretation will influence the choice of interpretative means. In situation l) there is a bilateral treaty. The obvious aim. of the interpretation by an impartial judge must be to maintain (or at least to avoid upsetting) the equilibrium the parties had reached through the articulated agreement framed on a do ut des basis.

By so acting, the point is also to maintain the equality between them.

It is quite clear that a court of justice will in this context tend to favour

5 ICJ, Reports, 1949, p. 174ff. ⁶ ICJ, Reports, 1962, p. lSlff.

7 See, e.g., the Audition of Petitioners Advisory Opinion, ICJ, Reports, 1956, p. 23ff.

textual and conservative purpose-oriented interpretations (what did the parties intend, what was their aim?), as well as contextual interpre- tations situated within the four corners of the treaty. The Application of the Interim Accord of 13 September 1995 (FYROMv. Greece) (2011) decision by the ICJ (on 5 December 2011) is a case in point.⁸ In situ- ation 2), there are important new social evolutions or threats which the law must face; or there are rather vague principles, but no detailed rules, a situation which may call for some development of the law. This may be true in environmental matters (one may think of the famous Trail Smelter Arbitration, of 1941⁹). Or consider the very generic Tru- man Proclamation of the Continental Shelf. Two parties were asking a Court to declare the principles and rules applicable to the delimitation of the continentalshelf(ICJ, North Sea Continental Shelf Cases, 1969¹⁰).

The law was uncertain; it must be first determined, then to some extent interpreted, and hence also developed. The interpretation-limb is here placed in a completely different context. Arguments of equilibrium between States have not disappeared, but the policy issues are now considerably broader. The interpretation (to the extent that it will take place at all) will shift towards considerations of a legislative nature, where the judge will try to complete a legal regime the parties have not been able to complete themselves. Or, another example: Article 103 of the UN Charter will perhaps need to be interpreted in new ways when 'authorized' enforcement actions by member States (in substitution to Article 42 of the UN Charter enforcement actions) were invented in order to overcome the obstacle of non-implementation of Article 43ff of the Charter.U The term 'obligations' contained in Article 103 has then perhaps to be functionally reshaped in order to fit 'authorized' operations. ¹²

3) A last example for reasons of modulation may be the policy divide between judicial activism and caution. ¹³ The institutional strength or weakness of the judge (the place of the judge in a society; permanent

8 It can be consulted on www.icj-cij.org. ⁹ RIAA, vol. III, p. 190Sff.

10 ICJ, Reports, 1969, p. 3ff.

11 On this authorized action, see the Hague lecture ofL. A. Sicilianos, 'Entre multilateralisme et unilateralisme: l'autorisation par le Conseil de securite de recourir

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12 This is suggested in R. Kolb, 'Does Article 103 of the Charter of the United Nations Apply only to Decisions or also to Authorisations Adopted by the Security Council?', Zeitschrift fiir auslii.ndisches offentliches Recht und Volkerrecht (ZaoRV ), vol. 64, 2004, p. 21ff.

13 A classical reading on that question in international law is still H. Lauterpacht, The Development of International by the International Court, Stevens & Sons, London, 1958.

judge or simple arbitrator; compulsory jurisdiction or optional one·

strong or weak court?); his or her relations with the parties (relations of confidence or not?); the relations of the parties between themselves (confidence or tension?); the time in which the adjudication takes place (times of international confidence and cooperation or times of tension and crisis; crisis or good relations universally or in the relevant region?); these factors, among others will determine whether the judge chooses more conservative or more progressive etements of interpretation, for example stricter text-orientation or more relaxed purpose-orientation. Consider, for example, the US Supreme Court's jurisprudence in the 1950s and 1960s, and then since the 1980s. It shifted from a phase of judicial activism and 'equal rights' to a phase of conservativism and 'originalist' interpretations.¹⁴ At the IC], too, such dividing lines can be felt, for example the phase between 1947 and 1962 (judicial expansion), and the one thereafter up to at least 1986 (judicial caution).¹⁵

IV. Salient particular subject-matters in the realm of interpretation of international law

Again, the aim of this short chapter cannot be to offer a monographic treatment x-raying all possible areas of international law from the stand- point of interpretation. Only some short examples can be discussed, and even this rather cursorily. Three categories of subject-matter influ- ence shall here be addressed, all quite different in nature, function and treatment.

First, there are some subject-matters which are classically pinpointed as eliciting some particular bouquets of interpretative elements. These are international human rights law¹⁶ and international institutional law. ¹⁷ It

14 See D. L. Hudson, The Handy Supreme Court Answer Book, Detroit! Canton, 2008.

15 For these phases, see .Kolb (supra note. l ), p. 349ff.

16 See e.g. W. Kalin and J . .Ko.nzl.i, The Law oflnrernational Human Righrs Prorection, Oxford University Press> 2009, p. 38; R. Bernhardt, 'Thoughts on the Interpretation of Human Rights Treaties: in F. Matscher and H. Petzold (eds.), Protecting Human Rights: The European Dimeusion, Essays in Honor of G. W'UlFda, Ca.rl Heymanns, Cologne, 1988, p. 65.

See also G. Letsas, A Theory of Jmerpreration of rhe E11ropean Convention on Human Rig/Its, Oxford University Press, 2007.

17 See, e.g., J, Klabbers, An Introduction ro Inremational brstitutiona/ Law, 2nd cdn., Cam·

bridge University Press, 2009, p. 86ff; S . .Kadelbach, 'Interpretation of the Charter', in B.

Simma (ed.), Tire Charter of tire Unired Nations- A Ccmmelltary, 3rd edn. vol. I, Oxford University Press, 2012, p. 71 ff. See also C. Br<Slmann, 'Specialized Rules ofTreaty Interpre- tation: International Organizations', in D. Hollis (ed.), Oxford Guide- to Treaties, Oxford, 2012, p. 507ff.

is stressed that these subject-matters are encapsulated in 'living instru- ments' and that they both have a constitutional function (institutions and human rights are indeed the main contents of our modern Consti- tutions), which requires them to keep pace with quickly changing social and political environments. Hence, dynamic-evolutive, teleological and effectiveness-oriented interpretations should prevail over static, textual or travaux preparatoires-oriented ones. As has already been stressed, truth is less monolithic, all depending on the subjects, the aims and functions of a particular interpretation. There is here a divide: on the one side general perspectives on the issue and, on the other, particular exercises of interpretation which may or may not fit the general scheme. There are, however, dearly also distinctive features. Thus, in the field of human rights law, there is the tendency by the international bodies to insist on interpretations giving the rights enshrined in the instruments 'practical and concrete effects' or a sort of 'maximum effectiveness' (by adding, for example, positive obligations). The European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR) con- stantly referred to this principle¹⁸, as did the European Court of Justice (ECJ)¹⁹ in the realm of European Union law. There is here a distinctive attempt at effectiveness of the law to the benefit of protected individuals.

The protection and humanization idea induces these particular features in the interpretation of these instruments by international protection organs - but not necessarily by all States parties to those conventions.

Thus, it can be recalled that States like Saudi Arabia display a differ- ent stance with regard to conventions such as those of discrimination against women or for the rights of the child. Sweeping reservations do a lot to weaken the text, rather than to strengthen the practical effects of its rights.²⁰ Reservations are obviously not in themselves an issue of interpretation, but they show quite dearly how the conventional norms are interpreted by the State having formulated them. Hence, the interpre- tation of such conventions by States like Saudi Arabia will hardly be of the type commended by the international bodies, when laying stress on the practical effects of those rights. And as far as international institutional law is concerned, all the interpretations are by far not purposive and

18 See, e.g., Sanninov. Italy (2006), no. 30961/03, § 39.

19 See, e.g., Konstantinos Adeneler and others v. Ellinikos Organismos Ga/aktos (2006), no.

C-212/04, § 111.

20 See, e.g., the discussion in K. Zemanek, 'The Legal Foundations of the International System', RCADI, vol. 266, 1997, p. l75ff.

l:S THERE A SUBJELi1-MA1TEK UNTOLOGY~ 4C:H

teleological, as the restrictive interpretation of the ICJ in the IMCO Com- mittee opinion of 1960 shows.²¹ In this opinion, the Court furthered the intention of the parties-argument to have in the relevant Committee of that organization the nations with the greatest commercial ship tonnage, whichever they were. There was thus, according to the Court, no room for interpreting this provision in a progressive and dynamic way, so as to take account of the growing concern against flag-of-convenience States.

Second, there are interpretation-sensitive sub-subject-matters within a general subject-matter. An example is criminal international law. In criminal law, the main principle of interpretation (intertwined with sub- stantive principles permeating that area of the law) is its strictness and the prohibition of analogies. However, these principles apply only to the material law and only in the context of interpretations unfavourable to the accused. On the contrary, when an interpretation is in its favour, it can be elastic or even rest on an analogy. Retroactivity in favour of the accused is possible: lex mitior. To procedural criminal law, the principles just mentioned do not apply at all. Hence, for example, the International Criminal Tribunal for the former Yugoslavia (ICTY) could indulge in a 'general-principles' approach, based on analogies with municipal law and policy considerations, in the context of the question as to the extent to which a criminal charge could be altered by the prosecution at a late stage of the procedure, when it is to the detriment of the accused (evidence had shown that he committed the more serious crime rather than the more lenient one).²² The case-law of the same tribunal also shows that when the definition of a crime is unclear, like for rape in the 1990s, the same approach may be followed, even to the detriment of the accused (pene- tration of the penis into the mouth of the victim, rape or not?).²³ The preceding considerations show that the particularity of the interpretative approach in criminal matters breaks down in sub-areas (procedural law) and that there are also exceptions in substantive law.

Third, it has been suggested (but practice does not bear that out) that there are different interpretative approaches in international law as far as treaty law is concerned, on the one side, and as far as customary inter- national law is concerned, on the other.²⁴ The basis for the distinction

21 ICJ, Reports, 1960, p. 150ff.

22 Kupreskic, ICTY, TC, Judgment of 14 January 2000, § 728ff.

23 For the definition of rape: Furundzija, ICTY, TC, Judgment of 10 December 1998, § 174ff.

24 G. Schwarzenberger, A Manual of International Law, 5th edn., Professional Books, London, 1967, pp. 12-14, 29, 148. Generally on the question of customary international law and its interpretation, see Kolb (supra note l), p. 219ff.

is that in the context of treaties, the States have given a common pledge and thus entered voluntarily in a mutual or reciprocal enterprise. Hence, their relationship becomes permeated by considerations of mutuality, reasonableness, reciprocity, cooperation, confidence, non-unilaterality, etc. This is a type of jus aequum. On the other side, within the realm of customary international law, the States utter or perform acts of practice essentially under the guise of self-interest. They do not enter into close bonds with other States but consider their own interests. Hence, the whole area remains engrafted upon selfishness, power-policies and unilateral- ism. This is a sort of jus strictum. If one follows this classification, it would follow that the principles of interpretation for the two bodies of the law would significantly differ. Considerations of good faith, reciprocity and purpose would have a great importance in treaty law, besides the eternal reference to the text of the agreement. Considerations flowing from the presumption of State freedom (minimum obligation), of restriction of duties and of judicial caution would dominate the field of international customary law. Thus, treaty rights would have to be interpreted as 'rel- ative' rights, i.e. with due regard clauses for the treaty partners, whereas customary international law would have to be interpreted as giving rise to 'absolute' rights, freedoms of States, where even abuse is not prohib- ited (and should not necessarily be ruled out by interpretation). Abuse here simply amounts to an unfriendly act. As already suggested, interna- tional practice does not show such a sharp and indeed highly impractical dichotomy. It could in any event not be followed as international custom- ary and international conventional law is today closely intertwined (see, for example, the area of international humanitarian law²⁵). However, this does not mean that the treaty-interpreter will not look more carefully for the equilibria reached by the parties in their common undertaking, whereas he might inspire himself more of policy considerations and exi- gencies of the international society as a whole when called to interpret general international law. An example for the latter is the Jurisdictional Immunities case (Germany v. Italy) at the ICJ.²⁶ Clearly, at the level of general international law, the Court will not be able to stress the textual element: unwritten law is not written law. Apart from this truism, there is certainly a slight shift of perspective when moving from an inter-party do ut des undertaking to general norms of the international society, not to

25 J. M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law, vols.

I-III, Cambridge University Press, 2005.

26 To be consulted on: www.icj-cij.org.

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speak of community-oriented norms of erga omnes complexionY It may be added that in the context of customary international law, the first issue may be the one of determining the existence and scope of the rule with regard to practice and opinio juris. An interpretation of the rule could come only in the second stage. This peculiarity explains that in practice elements of ascertainment of the rule and elements of interpretation tend to merge into one another in this particular context.

When it comes to the interpretation of unilateral acts, it is often claimed that the will of the declaring subject has a greater strength than in the case of bilateral acts.²⁸ Sometimes, resolutions of the Security Council are quoted to that effect, as also are classical unilateral acts by States. ²⁹ Practice bears this position out, even if the text of such declarations is also of prime importance. Moreover, an intention not compatible with the text will need to be established by extremely conclusive evidence in order to prevail (questions of legitimate expectations created by the text may here heavily interfere). To some extent the same can be said of bilateral treaties. In their context, the intention of the parties can more often be concretely grasped than in the context of multilateral treaties, which are a form of 'international legislation'. Arbitral practice³⁰ shows that reliance on the intention of the parties-argument had in the past a better standing and could more easily yield results in the context of treaties with a small number of treaty parties than in treaties open to all the States of the world.³¹ It may well be that this remains to some extent true today.

Moreover, in the multilateral treaties, the intentions of the original parties could not prevail over the ones of the States acceding later, since that would entail inequality between the original States and the ones acceding later.

It would, however, be in most cases highly fictional to elicit a common

27 For the latter ones, see, e.g., B. Simrna, 'From Bilateralism to Community Interest in International Law', RCADI, vol. 250, 1994-VI, p. 229ff.

28 Kolb (supra note 1), p. 243ff. The ICJ has stressed this point in the context of the inter- pretation of optional declarations of compulsory jurisdiction under Article 36, § 2, of the Statute: cf., e.g., the Fisheries Jurisdiction (Spain v. Canada) case, ICJ, Reports, 1998, p.

454, § 48. But this is not the only utterance of the Court on that matter, and not all of these utterances have been so much subjectively bent. See the strong dissent of Judge ad hoc Torres Bernardez on this point: ibid., pp. 666-9, § 224, 226, 230.

29 On the greater importance of the will- or intention-element, see M. C. Wood, 'The Interpretation of Security Council Resolutions', Max Planck Yearbook of United Nations Law, vol. 2, 1998, p. 73ff.

30 See, e.g., the Timor Island arbitration (1914), RIAA, vol. XI, p. 497.

31 But there is no true difference in interpretation in different types of treaties, as is sometimes claimed. Cf. for example J, H. Weiler, 'The Interpretation of Treaties, A Re-Examination', EJIL, vol. 21, 2010, p. 507ff.

intention of all the original and later acceding parties. These were not present at the conference adopting the treaty and original intentions could only be known through the text or, possibly, a study of preparatory work, if available. In any event, such a common intention would be a shifting_

and mobil.e one, a sort of unfolding intention, since with every new State acceding to the convention it would have to be, if not redefined, at least ascertained again. In such cases, in order to avoid manifest conundrums, the text of the treaty obtains a greater share in the interpretive process with regard to an often quite elusive common intention (which should not become a tabula in naufragio for the interpreter). All these minor aspects do not detract from the fact that the VCLT regime is flexible enough to accommodate such variations within the classes and types of treaties.

Each one remains open to a case-by-case approach. In other words, in not all bilateral treaty disputes will the intention of the parties have a greater weight than the text; conversely in not all multilateral treaty disputes will the text be more important than a whole array of other arguments, among which could also figure the intention of the parties and preparatory work.

And the regime of the VCLT is flexible enough to also be extended by analogy to other legal norms than conventional ones, even if the particular interpretative bouquets to be used may slightly shift to take account of the specific nature or purpose of the act in question (e.g., unilateral legal acts).

In a certain sense, this is the miracle of Articles 31-3: to be considered at once to be sufficiently directive to cast the interpretive process out of the quagmire of boundless subjectivism and ad hoc-manipulation; and yet to remain sufficiently flexible to be able to maintain the process relevant for so many different contexts, typologies and acts. In a sense, this exercise is a squaring of the circle at its best.

V. Conclusion

The short considerations presented in this chapter have tended to show that:

1) It is a postulate of reason and of policy (concerning the importance of legal certainty) that there shall be certain common and agreed rules or maxims of interpretation.

2) Because of the specificity of international society deprived of central- ized organs, the role of such agreed rules is particularly important in international law.

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3) The VCLT of 1969 has succeeded in setting out a fairly articulated and common-law regime for the interpretation of treaties.

4) The regime of the VCLT can be expanded by analogy to other sources and subjects in international law, i.e. to non-State entities, to unilateral acts, to customary rules, etc., always mutatis mutandis.

5) The common core rules do not preclude flexibility in the combination of elements to be selected in a particular context of interpretation.

6) International practice has not as yet evidenced the need for the devel- opment of a special sub-set of rules for particular subject-matters in international law, that is rules which would prevail over the general rules of the VCLT on account of the lex specialis rule.

7) International practice does show that interpretation, as a high mani- festation of human spirit, is and remains a complex and multifaceted process, whose reduction to unity can always be only very partial.

The particular interpretation exercises will depend heavily on many factors, among which are the person performing it (quis judicabit?), the function or goal the interpretation shall perform, and the broader legal and political context.

8) Unitas in varietate, ex pluribus una or res mutandis? The question may here just be posed, as a sort of end and new starting point, that is: as a sort of 'shut down and restart'.

A FAREWELL TO FRAGMENTATION

Reassertion and Convergence in International Law

Edited by

MADS ANDENAS AND EIRIK BJORGE

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~ UNIVERSITY PRESS