Interpretation in International Law

Interpretation
in International Law
Matthias Herdegen
Content type: Product: Max Planck

Encyclopedia Entries Encyclopedia of Public
Article last updated: International Law [MPEPIL]
March 2013
Subject(s):
Unilateral acts — Customary international law — Sovereignty
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law
under the direction of Rüdiger Wolfrum.
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber:
University of Groningen; date: 08 April 2016
A. Concept and Object of Interpretation
1. Interpretation as a Cognitive and Creative Process

1 Interpretation in international law essentially refers to the process of assigning meaning to texts
and other statements for the purposes of establishing rights, obligations, and other consequences
relevant in a legal context. Interpretation is both a cognitive and a creative process. On the one
hand, interpretation purports to establish a pre-existing meaning. On the other hand, the
interpretative process has a creative dimension. Creative elements flow from the necessary
interconnection and balancing of relevant criteria as well as from the selective focus on facts
deemed relevant from the interpreter’s point of view.
2. Objects of Interpretation
2 Interpretation primarily relates to treaties in written form and decisions of international
organizations. However, oral agreements and unilateral acts are also possible objects of
interpretation (Unilateral Acts of States in International Law). Moreover, judgments and decisions of
international tribunals and arbitral awards are subject to interpretation under rules of international
law. In addition, interpretation can also refer to non-binding instruments such as Organization for
Security and Cooperation in Europe (OSCE) documents. Whether customary international law rules
are susceptible to the same forms of interpretation as written texts is most doubtful.
3. Relevant Interpreters
3 The group of relevant interpreters must be defined broadly. With regard to treaties, interpretation
by the parties is of paramount relevance. Decisions and other opinions of international courts, such
as the International Court of Justice (ICJ) or human rights courts, of non-judicial treaty bodies and of
national courts as well as legal doctrine, constitute important sources of interpretation. The
understanding of treaties establishing international organizations is influenced by the practice of
executive and rule-making organs of such organizations (International Organizations or Institutions,
Decision-Making Bodies). Non-governmental organizations and other actors also take part in the
continuous process of interpretation. Unilateral acts call for interpretation by the subjects of
international law to which they are addressed and by whom they have been issued.
4 It is a matter of controversy whether national courts have a narrower ‘margin of interpretation’

than international tribunals. The parameters of interpretation, referring to the ‘proper’ meaning of
international treaties and other instruments, are objective standards that apply to all judicial bodies.
However, interpretation by national courts, on the one hand, and interpretation by international
bodies, on the other, flow from different jurisdictional mandates and, therefore, have different
authority. This variance in authority may account for variance in judicial restraint as to stretching
the interpretation of treaties beyond the ordinary meaning of the text.
B. Interpretation of Treaties
1. Historical Development
5 Since Grotius, interpretation of international agreements has focused on the wording as well as
on other ‘indications’ for the correct interpretation (De iure belli ac pacis libri tres [1625] in JB
Scott [ed] The Classics of International Law [Oceana Publications New York reprinted 1964] vol 2,
at book II, ch XVI Find it in your Library). For a long time, the textual approach and the quest for the
original intent of the parties competed with each other. The teleological interpretation with the focus
on aims and purposes emerged in the context of multilateral, ‘law-making’ agreements, especially
of treaties on human rights and on international organizations. For a considerable time, concerns
about ‘judicial legislation’ nourished scepticism vis-à-vis the purpose-oriented approach (see
Interpretation of Peace Treaties Case [Second Phase] 226–30). The Permanent Court of
International Justice (PCIJ) and the ICJ made important doctrinal contributions. At its 1956 session,
the Institut de Droit international adopted a resolution on the ‘Interpretation of Treaties’.
6 The Vienna Convention on the Law of Treaties (1969) (‘VCLT’) formulates rules on interpretation
which build on the extensive work of the International Law Commission (ILC). This process of
codification catalysed an objective interpretation of treaties based on the ordinary meaning of the
text as well as on the object and purpose (Treaties, Object and Purpose). The creation of special
bodies, set up for monitoring treaty implementation such as human rights courts (Human Rights,
Treaty Bodies), has promoted a most influential version of the teleological approach: the principle
of effectiveness (effet utile).
2. The Vienna Convention on the Law of Treaties

7 The interpretation rules of the VCLT combine subjective and objective elements. They focus on
objective criteria rather than on the subjective will of the parties as established in the light of
historic data. This objective approach is expressed in Art. 31 (1) VCLT: ‘A treaty shall be
interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the
treaty in their context and in the light of its object and purpose.’ This basic rule of interpretation is
nowadays part of customary international law (Territorial Dispute Case [Libyan Arab
Jamahiriya/Chad] para. 41; Oil Platforms Case [Iran v United States of America] [Preliminary
Objection] para. 23 [Oil Platforms Case (Iran v United States of America)]; German External Debt
Arbitration [Belgium, France, Switzerland, the United Kingdom and the United States v the
Federal Republic of Germany] [Judgment] para. 1377).
8 Art. 31 (2) VCLT provides that the ‘context for the purpose of the interpretation of a treaty shall
comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to
the treaty which was made between all the parties in connection with the conclusion of the treaty’
and ‘(b) any instrument which was made by one or more parties in connection with the conclusion
of the treaty and accepted by the other parties as an instrument related to the treaty’.
9 According to Art. 31 (3) VCLT, subsequent agreements ‘between the parties regarding the
interpretation of the treaty or the application of its provisions’ (Art. 31 (3) (a) VCLT), ‘any
subsequent practice in the application of the treaty which establishes the agreement of the parties
regarding its interpretation’ (Art. 31 (3) (b) VCLT), and ‘any relevant rules of international law
applicable in the relations between the parties’ (Art. 31 (3) (c) VCLT), shall also be taken into
account. In addition, Art. 31 (4) VCLT stipulates that a ‘special meaning shall be given to a term if it
is established that the parties so intended’.
10 In Art. 32 VCLT the convention attaches ancillary relevance to supplementary means of

interpretation, in particular to preparatory work and the circumstances of the conclusion of a
treaty:
Recourse may be had to supplementary means of interpretation, including the preparatory

work of the treaty and the circumstances of its conclusion, in order to confirm the meaning
resulting from the application of article 31, or to determine the meaning when the
interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.
Thesupplementary recourse to the historic background reflects customary law, at least with
reference to preparatory work and the circumstances of concluding a treaty under the terms of Art.
32 VCLT (see Application of the Convention on the Prevention and Punishment of the Crime of
Genocide Case [Bosnia and Herzegovina v Serbia and Montenegro] [Judgment] para. 160;
‘Genocide Convention Case’).
3. The Different Approaches to Treaty Interpretation
(a) Literal Interpretation

11 The literal interpretation, ie the ordinary meaning of treaty terms, in terms of Art. 31 (1) VCLT
provides the initial focus of all treaty interpretation and operates as a platform for all further
interpretative efforts (Territorial Dispute Case para. 41). However, the ordinary meaning forms only
the starting point and requires supplementary criteria. In an early opinion, the ICJ held:
[T]he first duty of a tribunal which is called upon to interpret and apply the provisions of a
treaty, is to endeavour to give effect to them in their natural and ordinary meaning in the
context in which they occur. If the relevant words in their natural and ordinary meaning
make sense in their context, that is an end of the matter. If, on the other hand, the words in
their natural and ordinary meaning are ambiguous or lead to an unreasonable result, then,
and then only, must the Court, by resort to other methods of interpretation, seek to
ascertain what the parties really did mean when they used these words (Competence of
the General Assembly for the Admission of a State to the United Nations [Advisory
Opinion] 18; Reasonableness in International Law).
(b) Systematic Approach and Other Contextual Factors

12 The contextual approach (systematic interpretation), enshrined in Art. 31 (2) VCLT, views a
particular clause as an integral element of the agreement in question. This approach considers the
connection of a clause with other parts of the agreement including the preamble, protocols, and
other annexes (see Oil Platforms Case 813–15, 820). In Certain Expenses of the United Nations
(Advisory Opinion), the ICJ referred to the place of a provision in ‘the general structure and scheme
of the Charter’ (at 162). In a broader sense, the relevant context includes other rules of
international law applicable in the relations between the parties (see Art. 31 (3) VCLT).
13 Specific clauses in a treaty may govern its relation with other instruments (Treaties, Conflicts
between). When the wording of such a clause invites the interpretation that it will not affect
relations between the parties under another treaty, this interpretation should prevail unless clearly
rebutted by other factors.
(c) Object and Purpose

14 In terms of Art. 31 (1) VCLT, object and purpose of the relevant treaty provide essential
guidance (teleological interpretation). The teleological interpretation may easily become the vehicle
for a dynamic interpretation of an agreement, which departs from the subjective intent of the
parties. The interpretation based on object and purpose of the agreement can provide an
interpretation in terms of the hypothetical will of the parties in a situation not foreseen by the
parties. However, the hermeneutic value of this opinion is often diluted by competing or even
conflicting objects and purposes of a treaty (see WTO United States – Import Prohibition of
Certain Shrimp and Shrimp Products para. 17; US–Shrimp Case).
15 The orientation by object and purpose massively enhances the power of treaty bodies
entrusted with the subsequent concretization of broadly framed clauses (such as the UN Security
Council with respect to provisions of Chapter VII UN Charter) and of judicial and other supervisory
organs (such as human rights courts or the WTO Dispute Settlement Body [World Trade
Organization, Dispute Settlement]). When treaties establishing a long-term relationship between the
parties (eg agreements on a territorial regime) use indeterminate legal terms they are open to
dynamic interpretation (see eg the interpretation of the term ‘commercio’ by the ICJ in the dispute
Dispute Regarding Navigational and Related Rights Case [Costa Rica v Nicaragua] paras 64, 66).
(d) Historic Interpretation

16 A supplementary criterion is the historical intent of the Contracting Parties in the light of the
circumstances of concluding the treaty (see Art. 32 VCLT). In this context, the often extensive
preparatory work (travaux préparatoires) plays an essential role, in particular in the case of
multilateral agreements. For ascertaining the parties’ intention, the understanding of an agreement
at the domestic level, especially its handling by the respective governments in the pre-ratification
process, may become relevant (Territorial and Maritime Dispute Case [Nicaragua v Colombia]
[Preliminary Objections] para. 116).
17 Under the VCLT, as well in customary law, the original intent, as a rule, plays a subordinate
role. But it may become relevant in the case of ambiguous wording (Territorial Dispute Case para.
41; Lithgow and Others v United Kingdom para. 117). Occasionally, treaties and other international
instruments call for special regard given to materials and other elements of the historic context
(see Art. 6 (3) Consolidated Version of the Treaty on European Union with regard to the Charter of
Fundamental Rights of the European Union [2000]).
(e) Subsequent Practice

18 Subsequent practice of the parties becomes material if it expresses a common understanding
of the treaty in terms of establishing the agreement on its interpretation (Art. 31 (3) (b) VCLT). For
the purpose of establishing an agreement regarding interpretation, the practice need not be shared
by all parties. It suffices that all parties accept the practice with respect to the underlying
understanding of the treaty. The relevant practice includes documents, arrangements, and actions
that express a specific understanding of the treaty (see Kasikili/Sedudu Island Case
[Botswana/Namibia] paras 47–80). National legislation and other domestic documents may also
qualify as subsequent practice (with regard to the interpretation of a unilateral act) (Anglo-Iranian
Oil Company Case [United Kingdom v Iran] [Preliminary Objection] paras 106–7; Charter of
Fundamental Rights of the European Union [2000]). An important element of State practice lies in
the interpretation of treaties by national courts.
19 The application of a treaty by international judicial organs and other international bodies set up
by the parties for the purpose of implementation or supervision of compliance may be attributed to
the parties as subsequent practice.
20 The practice of the organs of an international organization—if accepted, which may be in

dispute—crosses the limits of mere interpretation of the constituent treaty, if it cannot plausibly be
sustained by any ordinary meaning of the wording and also if it conflicts with the reliably
ascertainable original intent of the parties. An example of such ‘modifying practice’ is the UN
Security Council’s practice under Art. 27 (3) UN Charter, which transformed necessary assent of
the permanent members into a veto by allowing abstention or absence for valid decisions (Veto).
21 The interpretative authority of treaty bodies cannot ignore discrepancies between the parties
as to the application of clauses to situations not clearly covered by the treaty. The ‘policy of
deterrence’, pursued by nuclear powers, drove the ICJ to recognize a possible right to resort to
nuclear weapons in self-defence under the terms of Art. 51 UN Charter (Legality of the Threat or
Use of Nuclear Weapons [Advisory Opinion] para. 932; Nuclear Weapons Advisory Opinion).
Against the background of fast-moving medical and scientific developments, the European Court of
Human Rights (ECtHR) outlined general principles for judicial restraint in the face of heterogeneous
State practice. It conceded a broad margin of options to parties when a comparative analysis of
national legislation establishes a wide discrepancy of the positions adopted. In the ECtHR’s view,
such divergence limits the scope of an open-textured obligation as a matter of judicial
interpretation (Vo v France para. 82).
(f) Regard for other International Rules

22 The regard for other international rules in force between the parties (Art. 31 (3) (c) VCLT)
includes not only treaties, but also customary international law (Iran-United States Case No A/18
para. 188). In principle, other international rules will qualify for such consideration only if they were
already in force at the time the treaty was concluded. However, the ICJ allows also the
consideration of rules that came into force subsequently (Legal Consequences for States of the
Continued Presence of South Africa in Namibia [South West Africa] notwithstanding Security
Council Resolution 276 [1970] [Advisory Opinion] para. 53; South West Africa/Namibia [Advisory
Opinions and Judgments]; see also Aegean Sea Continental Shelf [Greece v Turkey] para. 80).
This dynamic approach should be confined to treaty terms that are receptive to interpretation in the
light of legal standards developed at a later stage (see Gabčíkovo-Nagymaros Case
[Hungary/Slovakia] para. 112).
23 The recourse to agreements and other rules in force between all the parties of the treaty to be
interpreted serves the systemic integrity of international obligations. It forcefully countervails the all
too often diagnosed fragmentation of international law. The study group of the ILC on
‘Fragmentation of International Law’ considers harmonizing interpretation of treaties in terms of Art.
31 (3) (c) VCLT as an approach crucial to ensuring the coherence of international law. Thanks to
an ‘integrative interpretation’ of treaties, international trade law, international investment law, and
human rights law are nowadays more closely linked to other complexes of international law (like
environmental standards or the rules on State responsibility) than in the past.
24 Reliance on other agreements not ratified by all parties of the relevant treaty calls for
considerable caution. For such an approach might erode the effectiveness of the treaty to be
interpreted. Therefore, multilateral treaties generally do not affect the position of non-parties under
other agreements (WTO EC—Measures Affecting the Approval and Marketing of Biotech Products
—Report of the Panel [21 November 2006] paras 7.73–7.75). Different considerations may hold
true if a treaty reflects a universal consensus on the scope of an interest already recognized by
the relevant agreement to be interpreted (on the protection of endangered species under WTO law,
see US–Shrimp Case para. 131).
25 As a rule, treaties establishing rights and obligations which do not rest on reciprocity should not
be interpreted restrictively in deference to other agreements which focus on State-centred
interests (see the American Convention on Human Rights [1969] [(‘ACHR’ signed 22 November
1969, entered into force 18 July 1978) 1144 UNTS 123] on the one hand and bilateral investment
treaties on the other; see also Sawhoyamaxa Indigenous Community v Paraguay [Judgment] para.
140). This holds particularly true for treaties on human rights, on humanitarian law, and on global
environmental concerns.
(g) Relation between the Different Approaches

26 Different approaches may corroborate each other or lead to conflicting meanings. When
different interpretation methods lead to divergent results, the quest for a hierarchical order of the
relevant criteria opposes a subjective approach (focusing on the original intent of the parties) and
an objective approach that attaches crucial meaning to the text and the purpose. The VCLT
accords predominance to the wording, the context, and the purpose over the historic background
(Arts 31 (1) and 32 VCLT).
4. General Presumptions and Result-Oriented Maxims

27 State practice, international bodies of adjudication, and legal doctrine frequently rely on
general presumptions, often related to specific types of treaties. However, the hermeneutic value of
these presumptions, taken in isolation, must be viewed with great scepticism. For any general
presumption must be subordinated to the clear wording and the purpose of an agreement.
(a) Presumption in Favour of the Contracting Parties’ Freedom (in dubio

mitius)
28 The restrictive approach defers to the Contracting Parties’ sovereignty and freedom of choice
in the absence of clearly stipulated fetters (Sovereignty). It interprets obligations narrowly so as to
impair the freedom of action as little as possible (in dubio mitius). The presumption in favour of the
Contracting Parties’ freedom plays some role in the interpretation of servitudes (see The
‘Wimbledon’ [Government of His Britannic Majesty v German Empire] PCIJ Series A No 1;
Wimbledon, The), of treaty rules resting on strict reciprocity of rights and obligations such as
clauses on jurisdiction (Oil Platforms Case paras 27, 28, 31, 52), of certain trade commitments
(WTO EC—Measures Concerning Meat and Meat Products [Hormones]—AB–1997–4—Report of
the Appellate Body paras 163–65; EC-Hormones Case), and of agreements on legal assistance.
The in dubio mitius approach was also occasionally adopted in arbitration on investment
protection (SGS Société Générale de Surveillance SA v Islamic Republic of Pakistan [Procedural
Order of 16 October 2002] para. 171).
29 In virtually all cases, a restrictive interpretation can—and should, preferably—be sustained by

a narrow wording and a clearly defined purpose (see Interpretation of Peace Treaties Case
[Second Phase] 226–30; Lithgow and Others v United Kingdom para. 114). Neither the VCLT nor
the recent jurisprudence of the ICJ and of other international tribunals supports the restrictive
approach as a generally operable presumption.
(b) Effectiveness (effet utile)

30 The interpretation of certain multilateral treaties is generally inspired by the purpose of the
agreement and its effective implementation (the principle of effectiveness, or effet utile). The
emphasis on effectiveness plays an important role in the interpretation of treaties (Fisheries
Jurisdiction Case [Spain v Canada] [Jurisdiction of the Court] para. 52; Questions Relating to the
Obligation to Prosecute or Extradite [Belgium v Senegal] para 74). This approach has paramount
relevance for agreements establishing a long-term framework for co-operation, especially for
founding treaties of international organizations, and for human rights treaties. This interpretation
concurs with the maxim ut res magis valeat quam pereat and flows from regard for the purpose,
thus qualifying as a sub-category of teleological interpretation. Such a dynamic interpretation is,
above all, appropriate in situations in which the parties have provided for dispute settlement by
special bodies. In such cases, the organs of dispute settlement may concretize vague terms and
open treaty clauses. Examples are the jurisprudence and practice of human rights bodies. An
important expression of effet utile is the case law of the IACtHR which requires national courts to
realise a ‘control of conventionality’, ensuring the application of domestic law in conformity with the
American Convention on Human Rights (Radilla Pacheco v Mexico). Like the opposite maxim in
dubio mitius, the rule of effectiveness is limited by the ‘letter and spirit’ of an agreement
(Interpretation of Peace Treaties Case [Second Phase] 226–30).
31 An emanation of the principle of effectiveness is the interpretation of treaties in conformity with

superior standards that govern their validity. Thus, it may generally be presumed that an
agreement does not purport to violate ius cogens. This interpretation also originates in the
consideration of other international rules in force between the parties in terms of Art. 31 (3) (c)
VCLT.
5. Plurality of Languages
32 When a treaty was authenticated in two or more languages, the PCIJ tended to opt for the
version with a more restricted meaning:
The Court is of the opinion that, where two versions possessing equal authority exist one of
which appears to have a wider bearing than the other, it is bound to adopt the more limited
interpretation which can be made to harmonise with both versions and which, as far as it
goes, is doubtless in accordance with the common intention of the Parties. (Mavrommatis
Palestine Concessions [Greece v Great Britain] [Jurisdiction] 19; Mavrommatis
Concessions Cases; see also Young Loan Arbitration [Kingdom of Belgium, the French
Republic, Swiss Confederation, United Kingdom and United States v Republic of
Germany] 494)
33 By contrast, the VCLT provides that the terms of the treaty are presumed to have the same
meaning in each authentic text (see Art. 33 (3) VCLT). This approach allows an interpretation
based on the broader wording. Thus, the extensive interpretation of the scope of Art. 6 (1) ECHR
(see Ringeisen Case para. 94; König v Germany paras 90, 97; Feldbrugge v The Netherlands
paras 26–40) essentially rests on the English wording (‘civil rights and obligations’).
6. Authentic Interpretation by or on Behalf of the Contracting

Parties
34 The VCLT ranks any subsequent agreement (accord ultérieur) between the parties regarding
the interpretation of the treaty among several factors to be taken into account (Art. 31 (3) (a)
VCLT). Such a binding agreement establishes an authentic interpretation trumping all other criteria
if the interpretation is couched in terms of a treaty (eg, a protocol on interpretation) or if the treaty
itself provides for interpretive declarations by the parties to be binding (Treaties, Declarations of
Interpretation).
35 Some multilateral treaties provide the possibility of authentic interpretation by the Contracting
Parties or by representative organs of international organizations. Thus, the Free Trade Commission
under the North American Free Trade Agreement (1992) (‘NAFTA’ [adopted 17 December 1992,
entered into force 1 January 1994] [1993] 32 ILM 289), composed of representatives of the parties,
can render authentic interpretations through formal declarations (see Arts 2001 (2) (c), 2003
NAFTA; see also North American Free Trade Agreement, Dispute Settlement). Art. IX:2 Marrakesh
Agreement Establishing the World Trade Organization (‘WTO Agreement’ [adopted 15 April 1994,
entered into force 1 January 1995] 1867 UNTS 154) provides the exclusive authority of the
Ministerial Conference and the General Council to adopt binding interpretations of the WTO
Agreement:
The Ministerial Conference and the General Council shall have the exclusive authority to
adopt interpretations of this Agreement and of the Multilateral Trade Agreements. In the
case of an interpretation of a Multilateral Trade Agreement in Annex 1, they shall exercise
their authority on the basis of a recommendation by the Council overseeing the functioning
of that Agreement. The decision to adopt an interpretation shall be taken by a three-fourths
majority of the Members. This paragraph shall not be used in a manner that would
undermine the amendment provisions in Art. X.
36 As to the question whether panel reports adopted by the WTO Dispute Settlement Body
constitute ‘subsequent practice’ within the meaning of Art. 31 (3) (b) VCLT, the WTO Appellate
Body referred to the exclusive authority of the Ministerial Conference and General Council to adopt
interpretations of the WTO Agreement under Art. IX:2 (WTO Japan—Taxes on Alcoholic Beverages
—Report of the Appellate Body Section E).
37 Under the Articles of Agreement of the International Monetary Fund ([signed and entered into
force 27 December 1945] 2 UNTS 39), the Executive Board decides questions of interpretation
arising between the International Monetary Fund (IMF) and a member or between members (Art.
XXIX (a)). Any member can take the issue to the Board of Governors, which will decide finally (Art.
XXIX (b)).
38 The Constitutive Act of the African Union (AU) ([done 11 July 2000, entered into force 26 May
2001] 2158 UNTS 3) empowers the Assembly of the AU to take binding decisions on interpretation,
by a majority of two-thirds (Art. 26 Constitutive Act of the African Union).
7. Rules for Specific Types of Treaties

39 Object and purpose vary according to the different types of treaties. It is therefore advisable to
differentiate between several categories of international agreements.
(a) Constituent Treaties of International Organizations

40 To a considerable degree, the interpretation of treaties establishing international organizations
is governed by the principle of effectiveness. This principle plays a pivotal role in the context of
organizations fostering economic integration or international security. Sometimes, the principle of
effectiveness catalyses an application of treaty rules crossing into the province of judicial law-
making.
41 High barriers for treaty amendments as established in the UN Charter stimulate evolutive
interpretations in order to keep pace with new challenges and to allow for an effective discharge of
the functions entrusted to specific organs. The ‘constitutional’ approach to the UN Charter operates
as a vehicle for parameters borrowed from constitutional interpretation.
42 Thus, effectiveness governs the interpretation of the powers under Chapter VII UN Charter by
the UN Security Council and supports a broad interpretation of ‘threat to the peace’ in terms of Art.
39 UN Charter (Peace, Threat to). The concept of implied powers is an important emanation of
interpretation guided by effectiveness. This doctrine, drawing on United States constitutional law,
attributes to an international organization and to its organs the powers necessary to fulfil their
functions under the founding treaty in an effective manner (see International Organizations or
Institutions, Implied Powers). Classical applications of the implied powers doctrine are the ICJ’s
Advisory Opinions in the Reparation for Injuries Suffered in the Service of the United Nations
(Advisory Opinion) ([1949] ICJ Rep 174) and in the Certain Expenses of the United Nations Case.
43 Special considerations apply to the treaties establishing the European Communities and the
Consolidated Version of the Treaty on European Union. The interpretation of these treaties, albeit
guided by the perception of European Union law as a legal system sui generis, is not altogether
detached from the methodology of international law, which establishes the crucial link between any
interpretation of treaties and the consent of the Contracting Parties. The push for effet utile is a
salient feature of the interpretation of the European treaties by the Court of Justice of the European
Union (European Union, Court of Justice and General Court). In the face of this dynamic approach,
judicial bodies of some Member States, especially the German Constitutional Court in its Maastricht
judgment, have recalled the limits of treaty interpretation, insisting on the necessary predictability
of any interpretation of the European Treaties (Maastricht 210).
(b) Human Rights Treaties

44 The ECtHR regards the ECHR as a ‘living instrument’ to be interpreted ‘in the light of present-
day conditions’ (Tyrer v United Kingdom para. 31; Loizidou Case [Preliminary Objections] para.
71). The Inter-American Court of Human Rights (IACtHR) sides with an interpretation ‘most favorable
to the individual’ (Compulsory Membership in an Association Prescribed by Law for the Practice of
Journalism [Articles 13 and 29 American Convention on Human Rights] [Advisory Opinion OC-
5/85] para. 52).
45 A driving force behind all this dynamism is the recognition of human rights as values to be
proactively protected. Such an approach also prevails with the UN Human Rights Committee (‘HRC’)
under the International Covenant on Civil and Political Rights (1966) (‘ICCPR’ [adopted 19
December 1966, entered into force 23 March 1976] 999 UNTS 171; ‘ICCPR’). In its General
Comment No 31 ([29 March 2004] GAOR 59th Session Supp 40 vol 1, 175), the HRC emphasized
positive obligations of States Parties to protect human rights under Art. 2 (1) ICCPR. In a dynamic
interpretation, the ECtHR inferred positive obligations from the ECHR (X and Y v The Netherlands
para. 23). In a similar way, the IACtHR formulated standards of active protection flowing from the
ACHR (Pueblo Bello Massacre [Judgment] paras 111–12, 123–24). The ICJ based its deduction of
an obligation of States under Art. 1 Convention on the Prevention and Punishment of the Crime of
Genocide ([adopted 9 December 1948, entered into force 12 January 1951] 78 UNTS 277) actively
to prevent the crime of genocide on the ‘humanitarian and civilizing purpose of the Convention’
(Genocide Convention Case paras 161–62, 167).
(c) WTO Treaties

46 According to Art. 3 (2) WTO Understanding on Rules and Procedures Governing the Settlement
of Disputes ([adopted 15 April 1994, entered into force 1 January 1995] 1869 UNTS 401), the
relevant rules of WTO agreements shall be clarified ‘in accordance with customary rules of
interpretation of public international law’. The relationship of WTO treaties with other norms of
international law is a crucial aspect of the interpretation of WTO law. In the case law of the WTO
Dispute Settlement Body, WTO rules are ‘not to be read in clinical isolation from public international
law’ and must be interpreted in conformity with customary international law as expressed in Art. 31
(1) VCLT (WTO United States—Standards for Reformulated and Conventional Gasoline—Report of
the Appellate Body 17). The recognition of the objective of sustainable development in the
preamble of the WTO Agreement and of the General Agreement on Tariffs and Trade (1947 and
1994) (‘GATT’) links the WTO treaties with environmental agreements and supports a broad
interpretation of Art. XX (g) GATT as to the protection of living resources (US–Shrimp Case para.
131).
(d) Treaties on Investment Protection

47 The explicit purpose of investment agreements to promote favourable conditions for
investments invites a broad interpretation of stipulations favouring the protection of covered
investments (SGS Société Générale de Surveillance SA v Republic of the Philippines [Decision on
Objections to Jurisdiction of 29 January 2004] para. 116). On the other hand, investment treaties
also command compliance with the law of the host State. Some treaties offer protection only to
investments which were made in accordance with the host State’s law. Thus, respect for the
integrity of the law of the host State is an important goal of international investment law, which
guides the interpretation of relevant treaties (Fraport AG Frankfurt Airport Services Worldwide v
Republic of the Philippines [Award of 16 August 2007] para. 286; Investments, International
Protection).
8. The Borderline between Dynamic Treaty Interpretation and Law-

Making
48 Dynamic interpretation by a common understanding of the parties or by treaty bodies, based
on the principle of effectiveness and the understanding of the text as a ‘living instrument’, can
reach or even cross the limits between application and modification of the treaty. The extent to
which international courts or other treaty bodies are empowered to engage in law-making functions
depends on their respective mandate. As a rule, the intent of the parties, if clearly established by
the context and expressed in unambiguous wording, will command strict deference by any
interpreter. Occasionally, national courts challenge a broad interpretation by human rights bodies,
as an illegitimate extension of the respective treaty.
49 The limits between interpretation by consensus and modification of a treaty are governed by
the methodology of international law. Consensus in formal declarations not to establish new
obligations of the parties indicates the intention to keep within the confines of mere interpretation.
However, even in this case a text adopted by the parties may modify a treaty establishing an
international organization by broadening the organization’s functions. An example of an evolutive
‘interpretation’ is the ‘New Strategic Concept’ of the North Atlantic Treaty Organization (NATO). This
concept, adopted by NATO Member States in 1990 and actualized in 1999, amplifies NATO’s
mission beyond the wording of the North Atlantic Treaty ([signed 4 April 1949, entered into force 24
August 1949] 34 UNTS 243), whilst expressly excluding new commitments by the Member States.
C. Interpretation of Rules Created by International Organizations

50 The interpretation of ‘secondary law’ created by international organizations on the basis of the
constituent treaty, by and large, follows the methodology applying to treaties (International
Organizations or Institutions, Secondary Law). It is, however, subject to specific interpretation rules
flowing from the founding agreement. Thus, ‘primary’ treaty law determines the status of
interpretative declarations on ‘secondary’ norms as well as the relevance of travaux
préparatoires.
51 Secondary rules created by international organizations should, as a rule, be construed as

being in harmony with the constituent treaty and with ius cogens. Mandatory resolutions adopted
by the UN Security Council under Chapter VII UN Charter must be interpreted in conformity with ius
cogens as far as peremptory norms confine the UN Security Council’s powers.
D. Interpretation of Unilateral Acts

52 Special problems of interpretation are connected with unilateral acts. Of particular relevance is
the interpretation of unilateral acts for the purpose of construing international agreements. The
most common unilateral acts are offer and acceptance of international agreements. In the light of
negotiation proceedings, difficult questions arise with regard to the binding effect of certain
documents. Whilst one party assumes a written statement of the parties only to sum up the state of
negotiations, the other party may understand it as a commitment to which the parties have already
consented in terms of establishing legal rights and obligations. In such cases of contradictory
understanding, interpretation calls for the careful scrutiny of concrete circumstances and their
particular significance (Maritime Delimitation and Territorial Questions between Qatar and Bahrain
[Qatar v Bahrain] [Jurisdiction and Admissibility] para. 25).
53 The interpretation of unilateral declarations follows rules similar to treaty interpretation.

However, particular deference must be accorded both to the intention of the State concerned and
to the legitimate expectations of the addressees flowing from the terms of the declaration.
54 In the Nuclear Tests Cases, the ICJ referred to a general setting of security arrangements as the
basis for interpreting legal implications of unilateral acts. The ICJ especially emphasized the
importance of legitimate expectations in the community of States raised by the declaration of a
State:
The validity of these statements and their legal consequences must be considered within
the general framework of the security of international intercourse, and the confidence and
trust which are so essential in the relations among States. It is from the actual substance of
these statements, and from the circumstances attending their making, that the legal
implications of the unilateral act must be deduced. (Nuclear Tests [Australia v France]
269; ‘Nuclear Tests Cases’)
55 In the Nuclear Tests Cases, the ICJ called for a restrictive interpretation of statements by which
the freedom of action of States is to be limited (at 267–68). The ILC sides with this restrictive
approach in its ‘Guiding Principles Applicable to Unilateral Declarations of States Capable of
Creating Legal Obligations’ ([2006] GAOR 61st Session Supp 10, 369).
56 In general, unilateral acts should be interpreted so as to conform to existing legal obligations: ‘It
is a rule of interpretation that a text emanating from a Government must, in principle, be interpreted
as producing and as intended to produce effects in accordance with existing law and not in
violation of it’ (Right of Passage over Indian Territory Case [Portugal v India] [Preliminary
Objections] 142).
57 The rule contra proferentem, which lays the burden of avoiding ambiguities on the declaring
State, must be applied with caution. This rule allows upholding legitimate expectations of the
immediate addressees of a unilateral declaration against intentions that the declaring State did not
clearly express.
58 Unilateral declarations accepting the jurisdiction of the ICJ or of other international courts call
for a special approach to interpretation, with particular deference to the intention of the State
concerned. In the Anglo-Iranian Oil Company Case, the ICJ stated:
[T]he Court cannot base itself on a purely grammatical interpretation of the text. It must
seek the interpretation which is in harmony with a natural and reasonable way of reading
the text, having due regard to the intention of the Government of Iran at the time when it
accepted the compulsory jurisdiction of the Court (at 104).
Thesui generis character of the unilateral acceptance of the ICJ’s jurisdiction under Art. 36 (2) ICJ
Statute precludes resort to the principle of effectiveness or to the contra proferentem rule
(Fisheries Jurisdiction Case paras 46, 51–52). Deference to the reserving State’s intention is a
crucial parameter and does not generally support restrictive interpretation of reservations to
acceptance of the jurisdiction of the ICJ. Apart from the wording of the relevant statement, the
context, as well as the circumstances of its preparation and the purpose pursued, are essential
parameters of interpretation (ibid paras 44–45, 48–49).
59 The interpretation of reservations to treaties must be guided by the intention of the reserving
State concerned as well as by the terms of the relevant treaty (Treaties, Multilateral, Reservations
to). This calls for an integral approach of the State’s will to be bound and the intention to define the
scope of its obligations. The burden of clearly establishing an intention to be bound by the treaty
only if the reservation is valid lies with the reserving State.
E. Interpretation of Judicial Decisions and Arbitral Awards

60 Public international law provides rules for interpretation of judicial decisions (see Art. 60 (2) ICJ
Statute) and arbitral awards (see Case concerning a Boundary Dispute between Argentina and
Chile concerning the Delimitation of the Frontier Line between Boundary Post 62 and Mount
Fitzroy [Argentina v Chile] paras 72–77; Argentine-Chile Frontier Case [Argentina v Chile] 174
[Argentina-Chile Frontier Cases] Application for Revision and Interpretation of the Judgment of 24
February 1982 in the Continental Shelf [Tunisia/Libyan Arab Jamahiriya] para. 54; Judgments of
International Courts and Tribunals, Interpretation of). These rules flow from customary international
law as well as the general principles of law. Interpretation must primarily be guided by the ordinary
meaning of the operative terms of the judgment or arbitral award, the reasons given, and the
context such as the submissions of the parties (see Delimitation of the Continental Shelf between
the United Kingdom of Great Britain and Northern Ireland, and the French Republic [UK v France]
para. 28; Continental Shelf Arbitration [France v United Kingdom]). There is no room for any
‘dynamic interpretation’ of obligations imposed on the parties by the ruling. In the Request for
Interpretation of the Judgment of November 20th, 1950, in the Asylum Case (Colombia/Peru), the
ICJ held that ‘[i]nterpretation can in no way go beyond the limits of the Judgment, fixed in advance
by the Parties themselves in their submissions’ (at 403).
F. Interpretation of Customary International Law?

61 It is evident that customary principles and rules also call for clarification of their scope and
legal implications. Thus, in the North Sea Continental Shelf Cases (Federal Republic of
Germany/Denmark; Federal Republic of Germany/Netherlands), the ICJ dealt with the ‘interpretation’
of the prolongation principle (at 31) and the impact of ‘logical necessity’ on the method of
delimitation (at 35–36). Syllogisms operate in the isolated application of customary international law
principles as well as in the formulation of new rules based on the interplay of several customary
norms or the application of logic to a given customary rule. Still, these operations are structurally
different from establishing the meaning of an act that is related to specific authors and their intent.
G. Assessment
1. Interpretation and the Development of International Law

62 For many years, interpretation has operated as an important factor for the development of
international law. The dynamic interpretation of the UN Charter (especially Chapter VII), of human
rights treaties and agreements on economic integration has transformed traditional concepts of
State sovereignty and constitutes a salient feature of modern international law.
63 Unlike changes of customary rules, innovative interpretation of multilateral treaties (including

the UN Charter) is not conditioned by a broad consensus of the parties. Therefore, the evolutive
interpretation of treaty clauses, such as the rules on the use of force under the UN Charter, which
are considered congruent with customary international law, presents challenges to the
methodology of international law and remains to be clarified. Such dynamic interpretation has
immediate repercussions on customary rules even if quasi-universality of concurring State practice
and legal opinion in the community of States cannot be established. This phenomenon is more
closely linked to the understanding of the UN Charter as a kind of ‘constitutional document’. The
methodological challenge lies in the possibility of basing a plausible, albeit controversial,
understanding of the relevant rules under the UN Charter and under customary law on a blend of
treaty interpretation and the practice of a significant sector of the international community. Thus,
concepts like the justification of humanitarian intervention or even of hotly contested ‘pre-emptive
strikes’—as self-defence both under the UN Charter, as a matter of interpretation, and under
customary international law—are nowadays considered as methodologically sustainable, or at least
debatable, even in the face of clear rejection by most States.
2. Value-Oriented Interpretation
64 The vision of international law as an order of values, which has gained considerable ground in
legal doctrine, stands in close interaction with the interpretation of treaties and other norms. From
this perspective, the international community as a legal community rests on basic values like
respect for elementary human rights, territorial integrity of States, sovereign equality, self-
determination of peoples, or international security. The very concept of normative ‘values’
enshrined in treaties, custom, and general principles of law flows from interpretation and an integral
view of the UN Charter, human rights treaties, and ius cogens. On the other hand, value-orientation
increasingly inspires the interpretation in terms of treating the basic values of the international
community of States in a coherent order. Such interpretation perceives the basic values of the
international legal order not as standing isolated from each other, but rather as interacting and
calling for appropriate balancing.
65 This approach, for all its attraction as a means of safeguarding international law as a coherent
system of values, risks blurring the border between interpretation and law-making and calls for a
high degree of prudence. In particular, interpretation of treaties should be careful not to rashly
construe conflicts between international obligations and basic values. In the Al-Adsani Case, the
majority of the ECtHR opted for this cautious approach in the context of State immunity for human
rights violations (paras 57–66).
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Interpretation in International Law

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Interpretation

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1. Interpretation as a Cognitive and Creative Process

4 It is a matter of controversy whether national courts have a narrower ‘margin of interpretation’

2. The Vienna Convention on the Law of Treaties

10 In Art. 32 VCLT the convention attaches ancillary relevance to supplementary means of

Recourse may be had to supplementary means of interpretation, including the preparatory

(a) leaves the meaning ambiguous or obscure; or

(b) leads to a result which is manifestly absurd or unreasonable.

3. The Different Approaches to Treaty Interpretation

(a) Literal Interpretation

(b) Systematic Approach and Other Contextual Factors

(c) Object and Purpose

(d) Historic Interpretation

(e) Subsequent Practice

20 The practice of the organs of an international organization—if accepted, which may be in

(f) Regard for other International Rules

(g) Relation between the Different Approaches

4. General Presumptions and Result-Oriented Maxims

(a) Presumption in Favour of the Contracting Parties’ Freedom (in dubio

29 In virtually all cases, a restrictive interpretation can—and should, preferably—be sustained by

(b) Effectiveness (effet utile)

31 An emanation of the principle of effectiveness is the interpretation of treaties in conformity with

6. Authentic Interpretation by or on Behalf of the Contracting

7. Rules for Specific Types of Treaties

(a) Constituent Treaties of International Organizations

(b) Human Rights Treaties

(c) WTO Treaties

(d) Treaties on Investment Protection

8. The Borderline between Dynamic Treaty Interpretation and Law-

C. Interpretation of Rules Created by International Organizations

51 Secondary rules created by international organizations should, as a rule, be construed as

D. Interpretation of Unilateral Acts

53 The interpretation of unilateral declarations follows rules similar to treaty interpretation.

E. Interpretation of Judicial Decisions and Arbitral Awards

F. Interpretation of Customary International Law?

1. Interpretation and the Development of International Law

63 Unlike changes of customary rules, innovative interpretation of multilateral treaties (including

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