Evolutionary Interpretation and International Law

Georges Abi-Saab, Kenneth Keith, Gabrielle Marceau, Clément Marquet, Georges Abi-Saab, Kenneth Keith, Gabrielle Marceau, Clément Marquet

• Publisher: Hart Publishing
• Year: 2019
• ISBN:
  9781509929900
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto internazionale

This unique book brings together leading experts from diverse areas of public international law to offer a comprehensive overview of the approaches to evolutionary interpretation in different international legal regimes. It begins by asking what interpretation is, offering the views of expert authors on the question, its components and definitions. It then comments on situations that have called for evolutionary interpretation in different international legal regimes, including general international law, environmental law, human rights law, EU law, investment law, international trade law, and how domestic courts have, on occasions, interpreted treaties and other international legal instruments in an evolutionary manner.
This timely, authoritative compendium offers an in-depth understanding of the processes at work in evolutionary interpretation as well as a prime selection of the current trends and future challenges.

1

About the Book

GABRIELLE MARCEAU AND CLÉMENT MARQUET

There is no part of the law of treaties which the text-writer approaches with more trepidation than the question of interpretation.¹

More than half a century ago, Lord McNair had already highlighted the undeniable appeal of discussing the multifaceted notion of ‘interpretation’. The question of interpretation through time figures prominently as part of the appeal or lure of this subject. In this regard, one could note that the Southeast Portico of the Thomas Jefferson Memorial in Washington DC reads as follows:

I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors.

In a few lines, the third President of the United States eloquently expressed an issue that is still at the heart of debates in the field of law, even more so in international law: how does law withstand the test of time? The interconnectedness between law and society makes it necessary for the former to remain in touch with the latter. Indeed, the social purpose of law would be rendered pointless without a mechanism allowing it to change and adapt to the emerging needs and habits of new generations. This is the role evolutionary interpretation plays.

By nature, international law – in particular international treaties – is a slow-moving body of rules. Long consensus-building, shifting political alliances and complicated amendment procedures all make for difficult law-making. In turn, the material contents of law can lose touch with a changing reality that does not wait for the rules to catch up. Can those rules, sometimes drafted centuries ago, still be relevant in today’s world? How do moral, technological or legal changes that have taken place since the conclusion of the treaty affect the interpretation of an old provision? Evolutionary interpretation can be found in this nook of international law. It allows judges – and other interpreters – to take into account all these changes, and to adapt the understanding of law to changing times.

This book, which offers discussions from experts on so-called evolutive or evolutionary interpretation, aims at examining the notion of evolutionary interpretation in both its underpinnings and its application. What is the basis for evolutionary interpretation and when is it a legitimate tool for interpretation? Is there any semblance of unity in its use by judges across various legal regimes? What types of changes does it encompass? Through this analysis, the coherence of the international legal system is questioned.

In this regard, and because diversity begets richness, leading experts from diverse areas of international law were brought together for a conference in October 2018 at the University of Geneva. We asked Professor Georges Abi-Saab for his advice and guidance on the topic, not only because of his tremendous experience in international law, but also because of his transversal approach. Having been an adjudicator in some of the main fora of the international sphere, his understanding of the international law system is second to none.

After the conference some of the participants agreed to continue to work on the same theme with additional experts for the publication of the present book. The authors have diverse backgrounds and expertise. Some are already well established and respected authors, others are younger academics or practitioners, and some young voices were chosen through a call for papers. All authors have already researched the topic of evolutionary interpretation, so as to provide an informed and innovative contribution.

The book starts with Professor Abi-Saab recalling what ‘interpretation’ is about, followed by discussions of the basic assumptions about evolutionary interpretation in the international legal system generally. It then turns to more regime-specific discussions, with in-depth analyses of the approaches adopted in human rights and environmental law, in the law of the World Trade Organization (WTO), international investment law and the law of the European Union (EU).

One of the notable features of this book is its wide array of contributors. It provides multiple points of view on evolutionary interpretation, because one single voice would not do justice to the level of intricacy and controversy surrounding the subject. From one regime to the other, even the very definition of evolutionary interpretation can change completely, let alone its operation. For all these reasons, contributions by multiple authors, each a specialist in her or his field, is not only preferable, but also necessary.

As mentioned, this book is divided into distinct parts. The first two deal with questions relating to the international legal system in general, while the next four closely examine specific regimes.

The first part proposes different approaches to the theoretical justification of evolutionary interpretation itself. First, Robert Kolb argues that evolutionary interpretation amounts to ‘rebus sic stantibus writ small’, before Christian Djeffal further discusses the possible added value of the concept and the underlying purpose of using evolutionary interpretation. Following up on his doctoral research, Eirik Bjorge then underlines the crucial role the intention of the parties plays when adapting a treaty’s reading through time. Julian Wyatt turns to linguistics to determine which circumstances warrant an evolutionary interpretation. Finally, Donald McRae emphasises the importance of context – broadly defined – in the whole process. In sum, this first section aims at offering a broad overview of the possible understandings of evolutionary interpretation. Rather than being regime specific, it lays the groundwork for the rest of the book by providing a solid footing for the broader theoretical debate about interpretation. Going beyond a given set of rules, it suggests a rethinking of the very purpose and foundations of the interpretative process, through the lens of societal evolution.

The second part considers evolutionary interpretation in some unusual contexts. Evolutionary interpretation is not limited to treaty interpretation by international adjudicators. Indeed, national courts, treaty bodies, international organisations or States themselves may also interpret international law, and acts other than treaties can be the object of evolutionary interpretation. International judges are not the only interpreters of international law, and domestic judges also participate in the shaping of international rules. Here, Kenneth Keith first delves into evolutionary interpretation as used by national courts. This change of focus also appears in Luigi Crema’s contribution, in which the interpretative role of treaty bodies is explored. Closing this part on evolutionary interpretation in atypical settings, Paolo Palchetti discusses the notion of evolutionary interpretation outside the framework of treaties. Since other acts, such as unilateral ones or resolutions of international organisations are also subject to interpretation, their adaptation through time is no less important. This part aims at offering a refreshing broader picture of evolutionary interpretation, outside the well-trodden paths of treaty law.

The third part turns to a regime-specific approach, by looking at human rights and environmental law. Gloria Gaggioli starts by assessing the status of evolutionary interpretation in human rights law generally, before Oliver Dörr debates the European Court of Human Right’s approach to evolutionary interpretation. Turning to environmental law, Nina Mileva and Marina Fortuna analyse how evolutionary interpretation contributed to the development of the field of environmental law and, reversely, how this field is one of the main contributors to the case law dealing with evolutionary interpretation. Malgosia Fitzmaurice then discusses the impact of evolutionary interpretation on the right to a clean environment. Finally, Sévane Garibian examines the issue from the point of view of international criminal law, and its interaction with human rights law. In particular, the issues of legitimacy plaguing the existence of the tribunals in this field is closely related to their use of evolutionary interpretation. Overall, a picture emerges from these contributions, in which a teleological interpretation takes a front-row seat: human rights courts and tribunals tend to adopt a purpose-heavy reading of the law, which is reflected in this section.

The fourth part’s focus is on international trade law, and more specifically WTO law. Some have argued that WTO law is quite progressive in its treatment of evolutionary interpretation, in particular through the landmark case US – Shrimp. To discuss this, the section is split into two sections, the first looking at systemic questions, where the second delves into the more specific recourse to evolutionary interpretation at the hands of WTO adjudicators. Thus, in the first section, Isabelle Van Damme looks into the reasoning underlying the recourse of this interpretative tool and argues that several factors affect whether and how references to evolutionary interpretation are made. Next, Graham Cook unties the conceptual knot presented by the distinction between evolutionary interpretation and application. As a side issue, he questions where the changes of meaning really lie. Clément Marquet then offers a glimpse into the future, through his analysis of possible uses for evolutionary interpretation as early as the treaty negotiations stage. While remaining regime specific, this section nevertheless discusses more general elements of the notion of evolutionary interpretation.

In the second section of this part, Sondre Torp Helmersen identifies patterns in the Appellate Body’s jurisprudence, and questions whether true evolutionary interpretation is really an important part of it. Peter Van den Bossche further discusses the use of evolutionary interpretation in the WTO, and in particular whether so-called evolutionary interpretation is, indeed, evolutionary. Mariana Clara de Andrade then draws links between the Appellate Body’s use of evolutionary interpretation and the Dispute Settlement Body’s ongoing discussion with the Appellate Body. Finally, Jenya Grigorova focuses on a distinct part of international trade law, through the shifting sands of trade in energy. Here, evolutionary interpretation can serve as a tool to include newer concerns about the environment into already existing sets of rules.

While staying in the field of international economic law, the fifth part nevertheless changes gears, with a look at investment law. Makane Mbengue and Aikaterini Florou begin with an assessment of the state of play of evolutionary interpretation in a world of fragmented tribunals and little stare decisis. Kendra Magraw then looks at the recourse that States make to evolutionary interpretation in their submissions during dispute settlement proceedings. In a similar vein, Jennifer Radford, Gregory Tereposky and Kun Hui offer a distinct take on evolutionary interpretation in NAFTA (North American Free Trade Agreement). In particular, they look at the Free Trade Commission’s statements and their use as interpretative tools in disputes. Finally, Charalampos Giannakopoulos and Malvika Monga delve deeper into the field, by examining the evolution of the Fair and Equitable Treatment standard through time and interpretation. Ultimately, this part demonstrates how fragmented the world of international investment law is. It remains to be seen whether evolutionary interpretation (whether or not it is subject to agreed additional principles) can serve as a tool for coherence. However, arbitrators’ reluctance to explicitly use evolutionary interpretation is a significant hurdle.

Finally, a brief part on EU law underlines two specificities of this union. First, Nicolas Levrat analyses the gap-filling role held by the Court of Justice of the European Union and in particular how its use of evolutionary interpretation defines the homogeneity (or lack thereof) of the EU’s legal system. Mattias Derlén then discusses the consequences of interpreting EU law in all of its official languages, and the dynamism an evolutionary interpretation can inject into EU-wide interpretation.

These parts do not aim at creating a ‘clinical isolation’ between the regimes. Rather, the emphasis on the diversity of approaches in the first two parts of the book help understand why different regimes might go separate ways, for dealing with similar and related concerns: the fact that several elements of the interpretation process may change and evolve between the conclusion of a treaty and the moment of its interpretation and application. Indisputably, depending on the regime under scrutiny, different weights are given to each part of the holistic interpretative process. Whether through a teleological interpretation, an intention-heavy one, an insistence on the plain meaning of the terms or a reference to the importance of the context, some sort of evolutionary interpretation still finds a way. It remains to be seen if all these elements are, in one way or another, different sides of the same coin. They also reflect the long-standing debate, also present in this book, regarding the very purpose of interpretation. Is the interpreter attempting to find the true intention of the parties, at the time of conclusion of the treaty? Or is it simply the result of the interpretative process, through the proper application of the formal rules of the VCLT to the text of the treaty? The eternal battle between objectivists and subjectivists plays the first role when discussing evolutionary interpretation.

Another element stands out in these chapters: the difficulty of even defining evolutionary interpretation. Indeed, is it sufficient for an adjudicator to say that his or her interpretation is evolutionary? Or are there more objective criteria? Is it possible to presume a situation of evolutionary interpretation where no mention is made of it? Since the reader is unable to know what the outcome of a case would have been but for the choice the adjudicator made, the situation is unclear. There is no ‘control group’ to provide an objective distinction between a case where evolutionary interpretation is used and one where it is not. This makes it difficult to define more clearly the situations calling for evolutionary interpretation and those where such recourse is not warranted. Had the tribunal decided not to mention evolutionary interpretation, would the results have been different? These questions further shape the role of evolutionary interpretation and provide a glimpse into its symbolism. The question of the definition of evolutionary interpretation is intimately linked to its perceived purpose. As the famous saying goes, ‘Not only must Justice be done; it must also be seen to be done’.² It is possible that evolutionary interpretation plays such a role, having not only a legal, but also a moral function. It displays the sort of ‘progress’ that is required by the ever-moving fabric on which law is written. Ultimately, societal evolution drives necessary changes in law, one way or another. As Giovanni Distefano put it: ‘l’ordre juridique constitue un système “inscindible” en “perpétuel devenir” étant donné que ses normes tendent naturellement à s’adapter aux exigences sociales’ (‘the legal order constitutes an indivisible system, in perpetual progress, given that its norms naturally tend to adapt to social needs’).³

¹AD McNair, The Law of Treaties (Oxford, Oxford University Press, 1961) 364.

²R v Sussex Justices, ex p McCarthy [1924] 1 KB 256.

³G Distefano, ‘L’interprétation évolutive de la norme internationale’ (2011) 115 Revue générale de droit international public 373, 384.

2

Introduction: A Meta-Question

GEORGES ABI-SAAB

A dilemma that frequently faces someone introducing a colloquium or a collective book on a given subject is how to say something relevant without treading on what might be said by subsequent interveners.

One way of circumventing this dilemma is to address a question that transcends the subject, while remaining relevant, a meta-question, such as clarifying the premises of the subject to situate it in its larger context.

The subject of ‘evolutionary interpretation’ assumes that it is a species of interpretation. But what do we mean by interpretation in the first place? And in what sense and from what angle can it be qualified as ‘evolutionary’ (or evolutive)? In other words, ‘interpretation’ needs interpretation.

Indeed, the term interpretation is used in current, and particularly legal, language to designate at least three different objects or referents, two of which refer to the stages of a mental or intellectual operation and the third to the output or outcome of this operation.

1. Interpretation as a ‘process of cognition’. This is the wider etymological meaning of interpretation, as the very process of grasping or apprehending the sense of a word, a sentence, or a normative proposition, of identifying and delimiting its substance. It is a purely intellectual activity, studied by different disciplines under different denominations: the theory of knowledge in philosophy, cognitive theories in psychology, the theories of communication in linguistics, as well as by modern theories of literary criticism, etc. Each of these theories endeavours to explain in its own way how the mind grasps external reality, takes hold and deciphers it for itself, particularly when this reality is not material or sensuous, but social or conceptual, even if it is expressed in words like law. In their diverse approaches, these theories provide a variety of tools to seize the meaning of a word, a sentence or a logical or normative proposition.

But is this intellectual process of identifying meaning sufficient by itself to produce a final interpretation of a legal text?¹ I turn for an answer to a great master, Hans Kelsen, who responds in the negative. This is because words, not to speak of words in the context of a sentence or a general normative proposition, are very rarely, if ever, 100 per cent ‘univocal’, in the sense of ‘having only one proper meaning; capable of one single interpretation; unambiguous’.² Thus, even when we have a written normative proposition with an absolutely clear hard core, this hard core is always surrounded by a penumbra or a margin of indeterminacy, however narrow it may be.

This means that the purely intellectual process – which Kelsen defines as ‘cognitive ascertainment of the meaning of the object that is to be interpreted’³ – can only be an intermediate stage towards a final interpretation, since it cannot go beyond tracing the outer-limit around possible meanings that can be accommodated within the normative proposition, that which in turn implies the recognition of the existence of several such possibilities within these limits.

2. Interpretation as an ‘act of volition’. If every normative proposition comprises a penumbra or margin of indeterminacy, and can thus accommodate more than one meaning, a second step or stage of the interpretative operation becomes necessary: choosing between alternative possible meanings. But choice is an exercise of free will, an act of ‘volit...