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T H E E VOLU T ION A RY I N T E R PR E TAT ION
OF T R E AT I E S
The Evolutionary
Interpretation of
Treaties
E I R I K BJORG E
1
1
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
Oxford University Press in the UK and in certain other countries
© Eirik Bjorge 2014
The moral rights of the author‌have been asserted
First Edition published in 2014
Impression: 1
All rights reserved. No part of this publication may be reproduced, stored in
a retrieval system, or transmitted, in any form or by any means, without the
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address above
You must not circulate this work in any other form
and you must impose this same condition on any acquirer
Crown copyright material is reproduced under Class Licence
Number C01P0000148 with the permission of OPSI
and the Queen’s Printer for Scotland
Published in the United States of America by Oxford University Press
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Data available
Library of Congress Control Number: 2014934938
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Links to third party websites are provided by Oxford in good faith and
for information only. Oxford disclaims any responsibility for the materials
contained in any third party website referenced in this work.
Foreword
A treaty. An international court or Tribunal. Two states. The search for meaning.
Submissions are made by the parties as to the ‘correct’ or ‘best’ interpretation of the
treaty. Recourse is had to the canons of interpretation in the Vienna Convention
on the Law of Treaties. Terms like ‘good faith’, ‘ordinary meaning’, ‘object and
purpose’ are repeated like incantations. So too, almost as often, terms like ‘subse-
quent agreement’, ‘subsequent practice’ and ‘evolutionary interpretation’ reverber-
ate. One sometimes wonders what has happened to the actual text of the treaty to
be interpreted, blanketed as it now is in interpretative theory.
In this careful and lawyerly study, Eirik Bjorge cuts through all this, drawing our
attention back to basics. First and above all one has to look at the text of the treaty.
The text, in its authentic language(s), is the primary expression of the common
intention of the parties. This common intention is to be determined objectively by
applying the canons of interpretation established in Articles 31–33 of the Vienna
Convention. Bjorge points out that the evolutionary interpretation of treaties is
nothing more than that: an expression of the traditional canons of treaty construc-
tion. It is a method suited for all treaties, not just one class. It is a method for all
international tribunals, not just one. But how much interpretation can the text
stand? It is this question that encapsulates the quest for meaning.
Take the Navigational and Related Rights case as an example. The text in question
was the Treaty of Limits, concluded between Costa Rica and Nicaragua in 1858.
Lengthy submissions were made by both states as to the correct interpretation of a
simple expression, ‘libre navegación . . . con objetos de comercio’ (ICJ Reports 2009,
paras 43–71). The Court read the text as ‘for the purposes of commerce’, as Costa
Rica had argued, and not ‘with objects of trade’, in Nicaragua’s contrary argument.
The freedom accordingly encompassed not only the transport of goods but also the
transport of people, including tourists. If one considers evolutionary interpretation
to involve bringing a treaty up to speed with modern times, then the Court engaged
in such an interpretation. It considered the term ‘commerce’ as having its modern
meaning, rather than the one it had during the conclusion of the Treaty of Limits.
But in truth it was not necessary to engage in such an interpretation because the
1859 traveller was in evidence (the principal use of the ‘Nicaragua route’ in the
mid-19th century was for transit of persons to California). Although evolutionary
interpretation was hardly necessary, the Court interpreted the text on the basis that
some terms had a ‘meaning or content capable of evolving’ (para 64).
Take, by contrast, Whaling in the Antarctic. The text in question was the
International Convention for the Regulation of Whaling 1946, Article VIII, which
permitted nationals of states parties to obtain a permit authorizing them to ‘kill,
take and treat whales for purposes of scientific research’ (ICJ Reports 2014, para
43). The expression ‘scientific research’ was intensely disputed. The Court referred
to the Convention as ‘an evolving instrument’ (para 45), but it did not seem to
vi Foreword
engage in an evolutionary interpretation. It accepted that the term scientific research
could include ‘lethal methods’, but it rejected the criterion (which the parties had
accepted) that lethal methods ‘must avoid an adverse effect on the relevant stocks’
(para 85). In a case where an evolutionary interpretation might have seemed called
for to bring the Convention in line with modern understandings of the preservation
of whale stocks, the Court insistently did not ‘devise any alternative’ criteria (para
86): it decided the case on the facts as put in evidence. We seem to have a Court that
is evolutionary when it is not really necessary but not evolutionary when the text
invites such an interpretation.
For his part, Bjorge has grasped the heart of the Vienna Convention. With the
object and purpose of the treaty of treaties in mind—determining the true inten-
tion of the parties—he incisively analyses an array of cases from a series of interna-
tional tribunals. Given a solid grounding in the Vienna Convention, Bjorge reveals
as clear and unitary what others with their categories have struggled to understand.
James Crawford AC, SC, FBA

Lauterpacht Centre for International Law
University of Cambridge
14 April 2014
Contents
Table of Cases ix
Table of Legislation xx
List of Abbreviations xxiii
1. Introduction 1
1.1 Research Question and Argument 1
1.2 Impermissibility of Courts Reconstructing Treaty Obligations 6
1.3 Outline of the Positions with Which this Book Takes Issue 9
1.4 Methodological Questions 14
2. Different Regimes, Different Methods of Interpretation? 23

2.1 Introduction 23
2.2 Constitutional Treaties, Human Rights Treaties,
‘Ordinary Treaties’ 31
2.3 Systemic Coherence in both Content and Method 48
2.4 Conclusion 54
3. The Means of Interpretation Admissible for the Establishment
of the Intention of the Parties 56
3.1 Introduction 56
3.2 Evolutionary Interpretation and Good Faith 63
3.3 Evolutionary Interpretation and the Intention of the Parties 76
3.4 Conclusion 139
4. The Intertemporal Law 142

4.1 Introduction 142
4.2 Normative Criticisms of the Principle of Intertemporality 150
4.3 Jus Cogens Superveniens: Peremptory Norms and Time 161
4.4 Conclusion 167
5. Evolutionary Interpretation, Or Not? Evolutionary Interpretation

and Jurisdiction Ratione Temporis 168
5.1 Introduction 168
5.2 Jurisdiction Ratione Temporis in the European Court of
Human Rights 169
5.3 The Traditional Doctrine of Jurisdiction Ratione Temporis 174
5.4 Conclusion 183
viii Contents
6. Conclusion: Evolution Intended 188
6.1 Intention of the Parties and Evolution 188
6.2 One Coherent Method of Treaty Interpretation 189
6.3 Evolving International Law 191
6.4 A Redundant Concept? 191
Bibliography 195
Index 209
Table of Cases
PE R M A N E N T C OU RT OF I N T E R N AT ION A L J US T IC E
Acquisition of Polish Nationality PCIJ (1923) Series B No 7�� 7, 9, 32, 34, 73, 135
Case of the SS ‘Wimbledon’ (1923) PCIJ Series A No 1��24, 34, 47, 49, 51, 93, 111, 189
Certain German Interests in Polish Upper Silesia (Merits) (1926) PCIJ Series A No 7�� 65
Competence of the International Labour Organisation to Regulate, Incidentally,
the Personal Work of the Employer (1926) PCIJ Series B No 13, 6��32
Convention concerning Employment of Women during the Night PCIJ (1932)
Series A/B No 50��125, 140–1, 192
Delimitation of Polish–Czechoslovak Frontier (Question of Jaworzina) (1923)
PCIJ Series B No 8��32
Delimitation of the Serbo–Albanian Frontier (Monastery of Saint-Naoum) (1924)
Series B No 9��32
Electricity Company of Sofia and Bulgaria (Belgium v Bulgaria) (1939)
PCIJ Rep Ser A/B No 77�� 32, 138, 179, 180, 184–7
Exchange of Greek and Turkish Populations (Advisory Opinion) (1925)
PCIJ Series A No 10, 6 ��24
Factory at Chorzow (Merits) (Judgment No 13) (1928) PCIJ Series A No 17 �� 16, 65
Free Zones of Upper Savoy and the District of Gex, Order of 6 December (1930)
PCIJ Series A No 24�� 65
Free Zones of Upper Savoy and the District of Gex, Order of 6 December (1932)
PCIJ Series A/B No 46��56
German Settlers in Poland (1923) PCIJ Series B, No 6, 19��32, 34
Greco–Bulgarian Communities (1930) PCIJ Series B No 17 ��33
Interpretation of the Greco–Turkish Agreement of December 1, 1926 (1928)
PCIJ Series B No 16 ��32
Interpretation of the Statute of the Memel Territory (1932) PCIJ Series A/B No 49 ��56
Interpretation of the Treaty of Lausanne, Article 3, paragraph 2 (1925)
PCIJ Ser B, No 12 �� 57, 80
Jurisdiction of the Courts of Danzig (‘Danzig Railway Officials’) (1928)
PCIJ Series B No 15 ��34, 80, 84–5, 94–6
Jurisdiction of the European Commission of the Danube (1927)
PCIJ Series B No 14 ��32
Legal Status of Eastern Greenland (Judgment) (1933) PCIJ Series A/B No 53�� 146
Lighthouses Case between France and Greece (Judgment) (1934)
PCIJ Series A/B No 62��8, 61, 70, 93–4, 190
Mavrommatis Palestine Concessions (1924)
PCIJ Rep Ser A No 2��176–8
Minority Schools in Albania (1935) PCIJ Ser A/B, No 64�� 32, 113
Nationality Decrees Issued in Tunisia and Morocco (French Zone)
(Advisory Opinion) (1923) PCIJ Series B No 4�� 24, 79, 119, 136
Phosphates in Morocco (1938) PCIJ Rep Ser A/B No 74��172, 176, 179
Polish Postal Service in Danzig (1925) PCIJ Series B No 11 ��34, 42
Rights of Minorities in Upper Silesia (Minority Schools) (1928)
PCIJ Series A No 15 ��32, 34, 36, 117
x Table of Cases
Territorial Jurisdiction of the International Commission of the River Oder (1929)
PCIJ Series No 23 ��32, 94
The Borchgrave Case (Preliminary Objections) PCIJ (1937) Series A/B No 72 ��60
I N T E R N AT ION A L C OU RT OF J US T IC E
Admissibility of Hearings of Petitioners by the Committee on South West Africa
(Advisory Opinion) [1956] ICJ Rep 23��32
Aegean Sea Continental Shelf [1978] ICJ Rep 22 ��8, 58, 77, 79, 80, 136, 143, 167
Aerial Incident of 27 July 1955 (Israel v Bulgaria) (Preliminary Objections) [1959]
ICJ Rep 127 ��68
Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo)
(Preliminary Objections) [2007] ICJ Rep 582 ��48–9
Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo)
(Merits) (Judgment) [2010] ICJ Rep 639�� 48–9, 51–3
Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo),
Compensation (Judgment) [2012] ICJ Rep 324 ��48–50, 54
Ambatielos case (Jurisdiction) (Judgment) [1952] ICJ Rep 28�� 36, 101, 115,
Anglo–Iranian Oil Co Case (Jurisdiction) (Judgment) [1952] ICJ Rep 93��71
Applicability of the Obligation to Arbitrate under Section 21 of the United Nations
Headquarters Agreement of 26 June 1947 (Advisory Opinion) [1988] ICJ Rep 57 �� 16
Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) [2007]
ICJ Rep 43 ��82, 110, 177–8
Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia Herzegovina v Serbia and Montenegro) (Preliminary
Objections) [1996] ICJ Rep 595��176–8
Application of the International Convention on the Elimination of all Forms
of Racial Discrimination (Georgia v Russian Federation) (Provisional
Measures) [2008] ICJ Rep 353 ��138
Armed Activities on the Territory of the Congo (DRC v Uganda) [2005] ICJ Rep 168 ��138
Avena and Other Mexican Nationals [2004] ICJ Rep 12 ��82
Barcelona Traction, Light and Power Co Ltd (Judgment) [1970] ICJ Rep 3 ��68
Case concerning Right of Passage over Indian Territory (Merits) (Judgment) [1960]
ICJ Rep 6�� 138–9, 145, 180, 184
Case of Certain Norwegian Loans (Judgment) [1957] ICJ Rep 9 �� 36, 61, 93, 112, 134
Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter)
(Advisory Opinion) [1962] ICJ Rep 151 �� 32, 70, 132
Certain Property (Liechtenstein v Germany) (Preliminary Objections) (Judgment)
[2005] ICJ Rep 25��172, 180, 184
Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France)
(Judgment) [2008] ICJ Rep 177��112, 115
Competence of the General Assembly for the Admission of a State to the UN
(Advisory Opinion) [1950] ICJ Rep 4 �� 110
Conditions of Admission of a State to Membership in the United Nations
(Article 4 of the Charter) (Advisory Opinion) [1948] ICJ Rep 57��65–6
Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime
Consultative Organization (Advisory Opinion) [1960] ICJ Rep 150��36, 112, 115
Continental Shelf (Libya/Malta) [1995] ICJ Rep 13��82
Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua)
Judgment [2009] ICJ Rep 213��1–3, 5, 9–10, 21, 32, 41, 45–6, 51,
58–9, 61, 74, 76–7, 79–80, 82, 93, 107, 113,
120, 126, 136, 139, 141, 190, 192–3
Table of Cases xi
Effect of Awards of Compensation made by the UN Administrative Tribunal
(Advisory Opinion) [1954] ICJ Rep 47�� 32, 131
Elettronica Sicula SpA (ELSI) (United States v Italy) [1989] ICJ Rep 15��44
Fisheries Jurisdiction (Federal Republic of Germany v Iceland) (Jurisdiction)
(Judgment) [1973] ICJ Rep 18�� 65
Fisheries Jurisdiction (Spain v Canada) Jurisdiction of the Court (Judgment) [1998]
ICJ Rep 432 �� 101
Frontier Dispute (Burkina Faso/Mali) [1986] ICJ Rep 554 ��82
Gabčíkovo–Nagymaros Project (Hungary/Slovakia) (Judgment) [1997]
ICJ Rep 7�� 58, 79–80, 82, 112, 115, 119
Interpretation of Peace Treaties (Second Phase) (Advisory Opinion) [1950]
ICJ Rep 221 �� 7, 70
Interpretation of the Agreement of 25 March 1951 between the WHO and
Egypt [1980] ICJ Rep 73�� 64, 154
Judgment No 2867 of the Administrative Tribunal of the International Labour
Organization upon a Complaint Filed against the International Fund for
Agricultural Development (Advisory Opinion) [2012] ICJ Rep 10��33
Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) [2012]
ICJ Rep 99 ��46
Jurisdictional Immunities of the State (Germany v Italy) (Counter-Claim) (Order) [2010]
ICJ Rep 310 �� 179
Kasikili/Sedudu Island (Botswana/Namibia) (Judgment) [1999]
ICJ Rep 1045�� 78, 82, 89, 93, 115, 127, 153, 157–8
LaGrand (Germany v United States of America) (Judgment) [2001]
ICJ Rep 466�� 36, 50, 53, 82, 112, 116–17
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria:
Equatorial Guinea intervening) (Judgment) [2002] ICJ Rep 303 �� 4, 13–14, 58, 127, 143
Land and Maritime Boundary between Cameroon and Nigeria (Preliminary Objections)
(Judgment) [1998] ICJ Rep 275 �� 65
Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua
intervening) [1992] ICJ Rep 351 ��68
Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276
(1970) [1971] ICJ Rep 35��8, 19, 32, 37, 58, 61, 63, 75, 77,
79–80, 129–30, 139, 143
Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory (Advisory Opinion) [2004] ICJ Rep 136�� 82, 112, 138,
Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Request by
WHO) (Advisory Opinion) [1996] ICJ Rep 66��37, 189
Legality of the Use of Force (Serbia and Montenegro v Belgium) (Preliminary
Objections) (Judgment) [2004] ICJ Rep 279�� 110–11
Maritime Delimitation and Territorial Questions between Qatar and Bahrain [1995]
ICJ Rep 6�� 66, 110
Military and Paramilitary Activities in and against Nicaragua [1986] ICJ Rep 14�� 36, 115
Minquiers and Ecrehos Case (France/United Kingdom) (Judgment) [1953] ICJ Rep 47�� 146
Nuclear Tests (Australia v France) (New Zealand v France) ICJ Rep 1974 253�� 65, 66
North Sea Continental Shelf (Federal Republic of Germany/Netherlands; Federal
Republic of Germany/Denmark) [1969] ICJ Rep 3��12
Oil Platforms (Islamic Republic of Iran v United States of America) (Preliminary
Objection) (Judgment) [1996] ICJ Rep 803 ��36, 82, 112, 116
Pulau Ligitan/Sipadan [2002] ICJ Rep 625�� 82, 110
Questions relating to the Obligation to Prosecute or Extradite (Belgium v
Senegal) (Judgment) [2012] ICJ Rep 422��36, 112–13, 116
xii Table of Cases
Reparation for Injuries Suffered in the Service of the United Nations (Advisory
Opinion) [1949] ICJ Rep 174��32, 37, 131–2
Reservations to the Convention on Genocide (Advisory Opinion) [1951]
ICJ Rep 15 �� 34, 36–7, 40, 61, 84, 93, 112, 115, 134, 189
Right of Passage (Portugal/India) [1960] ICJ Rep 6 ��138, 143, 145, 183–4
Right of Passage over Indian Territory (Preliminary Objections) [1957] ICJ Rep 125 ��25
Rights of Nationals of the United States of America in Morocco (France v United States
of America) [1952] ICJ Rep 176�� 7, 65, 70, 123, 143
South West Africa—Voting Procedure, Advisory Opinion [1955] ICJ Rep 67�� 32, 75, 81
South West Africa, Second Phase (Judgment) [1966] ICJ Rep 6�� 19
South-West Africa Cases (Ethiopia and Liberia v South Africa) (Preliminary
Objections) [1962] ICJ Rep 319 �� 32, 36, 112
Sovereignty over Certain Frontier Land [1959] ICJ Rep 209�� 85, 113
Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge
(Malaysia/Singapore) [2008] ICJ Rep 12��4, 143, 154
Status of South-West Africa [1950] ICJ Rep 132��32
Temple of Preah Vihear (Cambodia v Thailand) (Preliminary Objections)
(Judgment) [1961] ICJ Rep 17�� 143, 145, 191
Territorial Dispute (Libya/Chad) (Judgment) [1994] ICJ Rep 6��3, 8, 36, 69, 82,
91, 110–12, 190
United States Diplomatic and Consular Staff in Tehran (United States of
America v Iran) [1980] ICJ Rep 3�� 24, 36, 49, 52, 115
Western Sahara (Advisory Opinion) [1975] ICJ Rep 12 ��119–20, 127–8, 152–3
Whaling in the Antarctic (Australia v Japan: New Zealand Intervening)
(Judgment) 31 March 2014��68, 80–2, 120
T R I BU N A L S OF A D HO C J U R ISDIC T ION
Abyei Arbitation (Government of Sudan/Sudan People’s Liberation Movement/
Army) (2009) 144 ILR 348�� 112
Affaire Chevreau (France v Royaume-Uni) (1931) 2 RIAA 1113; (1933) 27 AJIL 153��93
Affaire de l’île de Timor (Pays-Bas c Portugal) (1914) 11 RIAA 481�� 93, 99
Affaire de l’indemnité russe (Russie/Turquie) (1912) 11 RIAA 421�� 71, 80
Affaire de la Compagnie agricole du détroit de Puget (1869) 2 Recueil des arbitrages
internationaux 513�� 4, 143
Affaire de la Dette publique ottomane (Bulgarie, Irak, Palestine, Transjordanie,
Grèce, Italie et Turquie) (1925) 1 RIAA 529 ��93
Affaire des boutres de Mascate (France c Grande-Bretagne) (1905) 11 RIAA 83��25, 118
Affaire relative à l’interprétation du traité de commerce conclu entre l’Italie et la
Suisse le 13 juillet 1904 (Italie/Suisse) (1911) 11 RIAA 257��71
Affaire relative à l’or de la Banque nationale d’Albanie (1953) 12 RIAA 12 ��112, 117
Affaire relative à la concession des phares de l’Empire ottoman (Grèce c France)
(1956) 12 RIAA 155��93
Air Services Agreement of 27 March 1946 (United States v France)
(1978) 54 ILR 303�� 30
Alsing Trading Co v The Greek State (1954) 23 ILR 633 �� 65
Argentina/Chile Frontier Case (Palena) (1966) 16 RIAA 109; (1966)
38 ILR 10�� 2, 60–1, 93, 96
Award in the Arbitration regarding the Iron Rhine (‘Ijzeren Rijn’) (Belgium v
Netherlands) (2005) 27 RIAA 35��2, 5, 8–9, 13, 36, 42, 47, 52, 56, 58,
83, 91, 112, 118–19, 159, 190
Award of the Alaska Boundary Tribunal (1903) 15 RIAA 490�� 4, 143
Table of Cases xiii
Award of the Tribunal of Arbitration between the United States of America and
the Kingdom of Norway under the Special Agreement of June 30, 1921 (1923)
17 AJIL 362��46
Baer Case (1959) 14 RIAA 402 ��72–3
Banks of Grisbadarna (Sweden v Norway) (1909) 11 RIAA 155�� 147–8, 158
British Claims in the Spanish Zone of Morocco (1925) 2 RIAA 722; (1923–24) 2 Annual
Digest and Reports of Public International Law Cases 19 ��10–11, 44, 140
Cape Horn Pigeon (United States v Russia) (1902) 9 RIAA 63 ��145, 148
Carolines, 22 October 1885, reprinted in MC Calvo, Le droit international: théorique
et pratique (6th edn, Pedone, 1888), 420��149–50
Case Concerning a Boundary Dispute between Argentina and Chile Concerning the
Delimitation of the Frontier Line between Boundary Post 62 and Mount Fitzroy
(1994) 22 RIAA 3 ��7, 70, 127
Case Concerning the Auditing of Accounts between the Kingdom of the Netherlands
and the French Republic Pursuant to the Additional Protocol of 25 September 1991
to the Convention on the Protection of the Rhine against Pollution by Chlorides
of 3 December 1976 (Netherlands/France) (2004) 25 RIAA 267; (2004)
144 ILR 259�� 2, 5, 67, 69, 110–11, 122, 190
Case Concerning the Delimitation of Maritime Areas between Canada and the
French Republic (1992) 31 ILM 1149��46
Case Concerning the Delimitation of Maritime Boundary between Guinea-Bissau
and Senegal (1989) 20 RIAA 119�� 4, 7, 58, 143, 165
Cayuga Indians (Great Britain) v United States (1926) 6 RIAA 173��69
CH White (United States v Russia) (1902) 9 RIAA 71��145, 149
Decision regarding delimitation of the border between Eritrea and Ethiopia (2002)
25 RIAA 83; (2002) 130 ILR 1��2, 4, 6, 60–1, 70, 93, 121–2, 127, 143
Différend concernant l’accord Tardieu-Jaspard (Belgium/France) (1930) 3 RIAA 1701��25
Dispute between Argentina and Chile concerning the Beagle Channel (1977)
21 RIAA 53�� 8, 9, 52, 101, 190
Dispute concerning Filleting within the Gulf of St Lawrence (‘La Bretagne’)
(Canada/France) (1986) 82 ILR 591 �� 35, 46, 58, 83, 121, 125
Diverted Cargoes Case (Greece v United Kingdom) (1955) 12 RIAA 53�� 70, 94, 99
Enterprize in A de Lapradelle and N Politis, Recueil des arbitrages internationaux
I (Pedone, 1905), 703�� 145
Eritrea v Yemen (Phase One: Territorial Sovereignty and Scope of the Dispute) (1998)
114 ILR 1�� 4, 143
FH Neer and Pauline Neer v United Mexican States (1926) 3 ILR 213; (1926)
4 RIAA 60; (1927) 21 AJIL 555��43–5
Guiana Boundary (Brazil/Great Britain) (1904) 11 RIAA 11�� 157
Hermosa and Créole in A de Lapradelle and N Politis, Recueil des arbitrages internationaux
I (Pedone, 1905), 703�� 145
Hopkins (1926) 3 ILR 229��44
Indus Waters Kishenganga Arbitration (Pakistan v India) (Partial Award) (2013)
154 ILR 1�� 82, 112
Interpretation of Article 78(7) of the Peace Treaty with Italy 1947 (Franco–Ethiopian
Railway Co claim) (1956) 24 ILR 602 �� 65
Island of Clipperton (Mexico v France) (1931) 2 RIAA 1105�� 156
Island of Palmas (Netherlands v United States of America) (1928)
2 RIAA 829 �� 4, 47, 144–7, 149–55,
158–61, 163, 167
Italy–United States Air Transport (Arbitration) (1965) 45 ILR 393 �� 57, 93, 112
James Hamilton Lewis (United States v Russia) (1902) 9 RIAA 66�� 145, 148–9
Kate & Anna (United States v Russia) (1902) 9 RIAA 76��145, 149
xiv Table of Cases
Kuwait v American Independent Oil Co (AMINOIL) (1982) 66 ILR 518�� 4, 165
Lac Lanoux Arbitration (1957) 24 ILR 101 �� 42–6
Lawrence in A de Lapradelle and N Politis, Recueil des arbitrages internationaux
I (Pedone, 1905), 740�� 145
Lederer v German State in (1928) III Recueil des décisions des tribunaux arbitraux
mixtes 762 ��94
Lighthouses Arbitration (Claim No 26) (1956) 23 ILR 342�� 65
Mixed Claims Commission: Sambaggio case (Italy v Venezuela) (1903) 10 RIAA 499 �� 145
North Atlantic Fisheries (Great Britain v United States) (1910) 11 RIAA 167 ��65, 124–6
Ottoman Debt Arbitration in (1925–26) Annual Digest of Public International Law Cases
Case No 270 ��94
Pelletier in Moore, History and Digest of International Arbitrations to which the
United States has been a Party II (Government Printing Office, 1898), 1750�� 145
Pertosula Claim (1951) 18 ILR 414��71
Petroleum Development (Trucial Coast) Ltd and the Sheikh of Abu Dhabi (1952)
1 ICLQ 247 �� 99–100, 124–6
Polyxene Plessa v the Turkish Government in (1929) VIII Recueil des décisions
des tribunaux arbitraux mixtes 224��93
Portendick (1843), in A de Lapradelle and N Politis, Recueil des arbitrages internationaux
I (Pedone, 1905), 530�� 156
Re Italian Special Capital Levy Duties (1949) 18 ILR 406�� 65
Roberts (1926) 3 ILR 227 ��44
Sarropoulos in (1927–28) Annual Digest of Public International Law Cases Case No 291��93
Sentence arbitrale relative aux requêtes de la Grande-Bretagne et du Portugal
(Baie de Delagoa ou Lorenzo Marques) (1875) 28 RIAA 157��156–7
SS Lisman: disposal of pecuniary claims arising out of the recent war (1914–1918)
(United States v United Kingdom) (1937) 3 RIAA 1767 �� 145
Tax regime governing pensions paid to retired UNESCO officials residing in France
(France v UNESCO) (2003) 25 RIAA 231�� 61, 93
The Channel Tunnel Group Ltd and France-Manche SA v United Kingdom and France
(‘Eurotunnel’) 132 (2007) ILR 1��104
The Indo–Pakistan Western Boundary (Rann of Kutch) between India and Pakistan
(1968) 50 ILR 2; (1968) 17 RIAA 1�� 4, 71, 73–4, 143
The Oriental Navigation Company (United States v United Mexican States) (1928)
4 RIAA 341 �� 145
The Pious Fund Case (United States v Mexico) (1902) 9 RIAA 1 �� 145
Veloz-Mariana in H La Fontaine, Pasicrisie internationale: histoire documentaire
des arbitrages internationaux (Stämpfli, 1902), 26 �� 156
Volusia in A de Lapradelle and N Politis, Recueil des arbitrages internationaux I
(Pedone, 1905), 741 �� 145
Young Loan Arbitration (1980) 59 ILR 494 �� 2, 5, 58, 83
I N V E S T M E N T DISPU T E T R I BU N A L S
ADF Group v United States of America ICSID Case No ARB(AF)/00/1 (Award)
9 January 2003�� 45
Aguas del Tunari SA v Bolivia (Decision on Jurisdiction 21 October 2005) ��43, 93, 118
Amco Asia Corporation and others v Republic of Indonesia (Amco II), ICSID
Case No ARB/81/1, Decision on the Applications by Indonesia and Amco
Respectively for Annulment and Partial Annulment, 17 December 1992 ��117–18
Azpetrol International Holdings BV, Azpetrol Group BV, Azpetrol Oil services Group
BV v the Republic of Azerbaijan, ICSID Case No ARB/06/15, 8 September 2009��104
Azurix Corpn v Argentine Republic ICSID Case No ARB/01/12 (Final Award) 14 July�� 45
Table of Cases xv
Cargill Inc v Mexico (2009) 146 ILR 642 ��44
CMS Gas Transmission Co v Argentine Republic (Award) (2005) 44 ILM 1205�� 43, 45
Continental Casualty Co v Argentina (Decision on Jurisdiction 22 February 2006) ��43
Czech Republic v European Media Ventures [2007] EWHC 2851 (Comm)��43
Daimler Financial Services AG v Argentine Republic, ICSID Case No ARB/05/1,
22 August 2012��56–7
Ecuador v Occidental (No 2) [2007] 1 Lloyd’s Rep 352 ��43
Glamis Gold v United States, 8 June 2009��44
HICEE BV v The Slovak Republic (Permanent Court of Arbitration) Case No 2009–11,
23 May 2011 �� 113
Hussein Nuaman Soufraki v United Arab Emirates, ICSID Case No ARB/02/7, Decision
of the ad hoc Committee on the Application for Annulment of Mr Soufraki,
5 June 2007�� 117
Industria Nacional de Alimentos SA and Indalsa Perú (formerly Lucchetti SA and
Lucchetti Perú SA) v Peru (Annulment) Case No ARB/03/4�� 3, 15
Klöckner Industrie-Anlagen GmbH and others v United Republic of Cameroon and Société
Camerounaise des Engrais (Klöckner I), ICSID Case No ARB/81/2, Decision of the
ad hoc Committee, 3 May 1985 �� 117
Lauder v Czech Republic (Award 3 September 2001) [2001] 9 ICSID Rep 66��43
LG & E Energy Corpn and Others v Argentine Republic ICSID Case No ARB/02/1
(Decision on Liability) 3 October 2006 �� 43, 45
Maritime International Nominees Establishment v Republic of Guinea, ICSID Case No
ARB/84/4, Decision on the Application by Guinea for Partial Annulment of the Arbitral
Award dated 6 January 1988, 22 December 1989�� 117
Mondev v United States of America (Award 11 October 2002) (2002) 125 ILR 98; (2002)
6 ICSID Rep 192��43–5
MTD v Chile (Award 25 May 2004) (2005) 44 ILM 91��43
Noble Ventures v Romania (Award 12 October 2005)��43
Pope and Talbot v Canada (2001) 122 ILR 293�� 45
RosInvestCo UK Ltd v Russian Federation SCC Case No Arb V079/2005, Award on
Jurisdiction ��131, 139
Salini Costruttori SpA & Italstrade SpA v Hashemite Kingdom of Jordan, ICSID Case No
ARB/02/13, Award 31 January 2006�� 21
Saluka Investments BV (The Netherlands) v The Czech Republic (Partial Award)
17 March 2006��43
SGS Société Générale de Surveillance SA v Republic of the Philippines (2004) 8 ICSID
Rep 515��42–3, 45
Siemens v Argentina (Decision on Jurisdiction 3 August 2004) (2005) 44 ILM��43
TECMED v Mexico (2003) 10 ICSID Rep 130�� 45
Waste Management v Mexico (30 April 2004) ICSID Case No ARB(AF)/00/3�� 45
I N T E R-A M E R IC A N C OU RT A N D C OM M IS SION OF
H U M A N R IGH TS
Aloeboetoe et al, judgment 10 September 1993, Series C, No 15.I/A ��4, 165–6
Bámaca Velásquez v Guatemala, Series C No 70, judgment 2 November 2000�� 11
Case of the ‘Street Children’ (Villagrán Morales et al), Series C No 63, judgment
19 November 1999�� 11
Case of the Gómez Paquiyauri Brothers, Series C No 110, judgment 8 July 8 2004�� 11
Effect of Reservations Opinion (1982) 67 ILR 559��30
Juridical Condition and Rights of the Undocumented Migrants, Series A No 18
Advisory Opinion OC–18/03, 17 September 2003�� 11
The Mayagna (Sumo) Awas Tingni Community v Nicaragua (2008) 136 ILR 73�� 11
xvi Table of Cases
The Right to Information on Consular Assistance in the Framework of the Guarantees
of the Due Process of Law, Series A No 16 Advisory Opinion OC–16/97,
14 November 1997�� 11
W TO BODI E S
China— Measures Affecting Trading Rights and Distribution Services for Certain
Publications and Audiovisual Entertainment Products, WT/DS363/AB/R,
21 December 2009��61, 83, 93, 126, 141, 192
EC and its Member States—Tariff Treatment of Certain Information Technology Products,
WT/DS375, 376 and 377/R, 16 August 2010 �� 83, 192
EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R;
WT/ DS48/AB/R ��42
EC—Computer Equipement, Report of the Appeallate Body WT/DS62/ AB/R;
WT/DS67/AB/R; WT/DS68/AB/R �� 6, 60, 83, 93
US—Gambling, Report of the Appellate Body WT/DS363/AB/R��6, 61, 83, 93
US—Import Prohibition of Certain Shrimp and Shrimp Products, WB/DS58/AB/R,
12 October 1998 �� 83, 126
EU ROPE A N C OU RT A N D C OM M IS SION OF H U M A N R IGH TS

A, B and C v Ireland App No 25579/05 judgment [GC] 16 December 2010��79
Airey v United Kingdom App No 6289/73, judgment 9 October 1979 �� 8, 12, 52,
129, 133, 139
Al-Adsani v United Kingdom App No 35763/97, judgment [GC] 21 November 2001��29
Al-Skeini v United Kingdom App No 55721/07��137
Austria v Italy (Pfunder’s Case) App No 788/60 11 January 1961 (1962) 4 Yearbook 116
(EcomHR)�� 172, 178–9
Bankovic v Belgium (2001) 123 ILR 94 ��29, 134–8
Blečič v Croatia App No 59532/00, judgment [GC] of 8 March 2006�� 172
Bolat v Russia App No 14139/03, judgment 5 October 2006 �� 53
Dudgeon v United Kingdom 22 October 1981, Series A No 45��136
Finucane v United Kingdom App No 29178/95; ECHR 2003-VIII�� 185
Frandeş v Romania App No 35802/05, judgment 17 May 2011 �� 186
Golder v United Kingdom (1975) 57 ILR 200��30, 85, 113
Demir and Baykara v Turkey App No 34503/97, judgment [GC] 12 November 2008�� 52, 85
Güleç v Turkey (1998) 28 EHRR 121 �� 185
Hirsi Jamaa v Italy App No 27765/09, judgment [GC] of 23 February 2012�� 172
Janowiec and Others v Russia App Nos 55508/07 and 29520/09, judgment [GC] of
21 October 2013 ��137, 186
Jovanovic v Croatia App No 59109/00; ECHR 2002-III �� 169
Kaya v Turkey (1998) 28 EHRR 1�� 185
Kholodov and Kholodova v Russia App No 30651/05, 14 September 2006 �� 170
Kikots and Kikota v Latvia App No 54715/00, 6 June 2002�� 170
Litovchenko v Russia App No 69580/01, 18 April 2002�� 170
Loizidou v Turkey (Preliminary Objections) (1995) 103 ILR 622 ��65, 134–6
Lupsa v Romania App No 10337/04, judgment 8 June 2006��54
Lyubov Efimenko v Ukraine App No 75726/01 25 November 2010��137, 186
Mamatkulov and Askarov v Turkey (2005) 134 ILR 230��30–1
Mangouras v Spain App No 12050/04, judgment [GC] 28 September 2010��78–9
Matthews v United Kingdom App No 24833/94 ECHR 1999 I��136
McCann v United Kingdom (1996) 21 EHRR 97��184–5
Table of Cases xvii
Moldova v Romania App Nos 41138/98 and 64320/01 13 March 2001�� 169, 174, 184
Nada v Switzerland App No 10593/08, judgment [GC] 12 September 2012��8
PM v Bulgaria App No 49669/07, judgment 24 January 2012��137, 186
Šilih v Slovenia App No 71463/01, judgment [GC] of 9 April 2009 �� 137–8, 168–74,
181–7, 192
Stanimirović v Serbia App No 26088/06 18 October 2011 ��137, 186
Tuna v Turkey App No 22339/03, judgment 19 January 2010��137, 186
Tyrer v United Kingdom (1978) 58 ILR 339�� 11–12, 32, 79, 129, 133, 139, 172
V v United Kingdom App No 24888/94 ECHR 1999 IX��136
Varnava and Others v Turkey App Nos 16064/90, 16065/90, 16066/90, 16068/90, 16069/90,
16070/90, 16071/90, and 16073/90, judgment 18 September 2009�� 185
Veeber v Estonia (No 1) App No 37571/97, 7 November 2002�� 170
Voroshilov v Russia App No 21501/02, 8 December 2005�� 170
X v The Netherlands 1102/61 of 18 December 1961 �� 171
X, Y, and Z v United Kingdom 22 April 1997 Rep 1997 II��136
Y v The Netherlands 1210/61 of 14 December 1962 �� 171
Yatsenko v Ukraine App No 75345/01, judgment 16 February 2012��137, 186
A F R IC A N C OM M IS SION ON H U M A N A N D PE OPL E S’ R IGH TS

Centre for Minority Rights Development (Kenya) and Minority Rights Group
International on Behalf of Endorois Welfare Council v Kenya, Communication
276/2003, 4 February 2010�� 11
World Organization against Torture and International Association of Democratic Lawyers,
International Commission of Jurists, Interafrican Union for Human Rights v Rwanda,
Nos 27/89, 46/91, 49/91, 99/93�� 53
U N H U M A N R IGH TS C OM M I T T E E
Hagan v Australia No 26/2002, Communication 20 March 2003, UN Doc CERD/
C/62/D/26/2002�� 11
Judge v Canada No 829/1998, Communication 5 August 2002, UN Doc CCPR/
C/78/D/829/1998�� 11
Kenneth Good v Republic of Botswana, No 313/05�� 53
Maroufidou v Sweden No 58/1979�� 53
I N T E R N AT ION A L C R I M I N A L T R I BU N A L FOR T H E FOR M E R

Y UG OSL AV I A
Prosecutor v Tadic (1995) 105 ILR 419 (Jurisdiction) ��28–9
C OU RT OF J US T IC E OF T H E EU ROPE A N U N ION
C–26/62 Van Gend and Loos v Nederlanse Administatie der Belastingen [1963] ECR 1��38–9
C–6/64 Flaminio Costa v ENEL [1964] ECR 585��38
C–22/70 Commission of the European Communities v Council of the European
Communities [1971] ECR 263��38
C–283/81 CILFIT v Ministry of Health [1982] ECR 3415��39
C–152/84 Marshall v Southampton and South-West Hampshire Area Health Authority
[1986] ECR 723��39
C–59/85 Netherlands v Reed [1986] ECR 1283��39
xviii Table of Cases
C–91/92 Faccini Dori v Recreb [1994] ECR I–3325��39
C–192/94 El Corte Inglés v Blázquez Rivero [1996] ECR I–1281��39
C–416/96 El-Yassini v Secretary of State [1999] ECR I–01209��39
C–386/08 Brita GmbH v Hauptzollamt Hamburg Hafen, judgment of 25 February 2010��39
Jany v Staatssecretaris van Justitie [2001] ECR I–8615��39
Metalsa [1993] ECR I–3751��39
Opinion 1/91 [1991] ECR I–6079��38–9
WOR L D B A N K A DM I N IS T R AT I V E T R I BU N A L
Cissé v International Bank for Reconstruction and Development (2001) 133 ILR 117�� 112
I N T E R N AT ION A L T R I BU N A L FOR T H E L AW OF T H E SE A
The Hoshinmaru (Japan v Russia Federation) (2007) 143 ILR 1�� 112
The Volga (Russian Federation v Australia) (2002) 126 ILR 433�� 112
SU PR E M E C OU RT OF T H E U N I T E D S TATS OF A M E R IC A
The Antelope 10 Wheat 66 JB Scott, Cases on International Law (Boston Book Co, 1902) ��46
F R E NC H C OU RTS
Cour de cassation (1re chambre civile) 20 October 1982�� 105
Cour de cassation, Civ, 30 January 1996, no 93–20330 �� 101
Cour de cassation, Com, 20 October 1998, no 96–10259 �� 101
Cour de cassation, Com, 14 October 2008, no 07–18955 �� 101
U K C OU RTS A N D T H E PR I V Y C OU NC I L
Al-Skeini and Others v Secretary of State for Defence [2007] UKHL 26; [2008]
1 AC 153 ��136
Arbuthnott v Fagan [1995] CLC 1396�� 103
Bank of Credit and Commerce International Sa (In Liquidation) v Ali (No 1)
[2001]UKHL 8; [2002] 1 AC 251 �� 102
Birmingham City Council v Oakley [2000] UKHL 59; [2000] 3 WLR 1936��108
Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38; [2009] 1 AC 1101��102–3
Co-operative Wholesale Society Ltd v National Westminster Bank plc [1995] 1 EGLR 97�� 103
Edwards v Attorney-General of Canada [1930] AC 124 �� 106–8
Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27��108
Gan Insurance Co Ltd v Tai Ping Insurance Co [2001] EWCA Civ 1047; [2001]
2 All ER (Comm) 299�� 103
Glynn v Margetson & Co [1893] AC 351 �� 103
Goodes v East Sussex County Council [2000] UKHL 34; [2000] 1 WLR 1356��108
Grant v Southwestern and County Properties Ltd [1975] Ch 185��108
Herron v Rathmines and Rathgar Improvement Commissioners [1892] AC 498 �� 107
Homburg Houtimport BV v Agrosin Private Ltd: The Starsin [2004] 1 AC 715�� 103
In re McKerr [2004] UKHL 12; [2004] 1 WLR 807 �� 181–3
Investors Compensation Scheme Ltd v West Bromwich Building Society [1998]
1 WLR 896�� 102–3
Jordan v Lord Chancellor [2007] UKHL 14; [2007] 2 AC 226 �� 181
Table of Cases xix
L Schuler AG v Wickman Machine Tools Sales Ltd [1974] AC 235 �� 104
McCarten Turkington Breen (A Firm) v Times Newspapers Ltd [2001] 2 AC 277�� 108
McCaughey and Another [2011] UKSC 20; [2012] 1 AC ��169, 180–3, 186
Nairn v University of St Andrews [1909] 1 AC 1�� 106
Pink Floyd Music Ltd v EMI Records Ltd [2010] EWCA Civ 1429, [2011]
1 WLR 770�� 102–3
Prenn v Simmonds [1971] 1 WLR 1381 �� 104
R v Bristol City Council, ex p Everett [1999] EWCA Civ 869, [1999] 1 WLR 1170�� 108
R v Coroner for North Humberside and Scunthorpe, ex p Jamieson [1995] QB 1; [1994]
3 WLR 82 �� 182
R v Ireland [1998] AC 147 �� 108
R v R (Rape: Marital Exemption) [1992] 1 AC 599 �� 108
R v Secretary of State for Health, ex p Quintavalle (on behalf of Pro-Life Alliance) [2003]
2 AC 687�� 108–9
R v SK [2011] 2 Cr App R 34�� 108
R (Hurst) v London Northern District Coroner [2007] UKHL 13; [2007] 2 AC 189 �� 181
Rainy Sky SA and others v Kookmin Bank [2011] UKSC 50; [2011] 1 WLR 2900 �� 103–4
Royal College of Nursing of the United Kingdom v Department for Health and Social
Security [1981] AC 800�� 108
Society of Lloyd’s v Robinson [1999] 1 All ER (Comm) 545�� 103
Yemshaw (Appellant) v London Borough of Hounslow (Respondent) [2011] UKSC 3;
[2011] 1 WLR 433 �� 108–9
G E R M A N C OU RTS
BVerfGE 2, 280 �� 105
BVerfGE 3, 407 �� 105
DU TC H C OU RTS
The Netherlands (PTT) and the Post Office (London) v Nedlloyd (1977) 74 ILR 212�� 106
N E W Z E A L A N D C OU RTS
New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641�� 106
Table of Legislation
I N T E R N AT ION A L /BI L AT E R A L Art 2 �� 56

Art 5 ��30, 31
General Agreement on Trade in Art 11�� 56
Services, 15 April 1994, 1869 Art 12 �� 56
UNTS 183; (1994) 33 Art 13 �� 56
ILM 1167�� 126 Art 14�� 56
Marrakesh Agreement Establishing the Art 15�� 56
World Trade Organization, 15 April 1994, Art 17�� 56
1867 UNTS 187; (1994) 33 Art 18�� 56
ILM 1153�� 126 Art 20 �� 56
Montreal Protocol on Substances that Art 23 �� 56
Deplete the Ozone Layer, Art 24 �� 56
16 September 1987, 1522 Art 26 �� 66, 115
UNTS 2��19 Art 31��3, 5, 10, 13, 20, 25,
Vienna Convention for the Protection 30, 31, 38, 58, 61, 82,
of the Ozone Layer, 22 March 92, 98, 135, 188
1985, 1513 UNTS 324 �� 19 Art 32 �� 3, 5, 10, 13, 20, 30,
Convention against Torture and Other 31, 58, 76, 82, 92, 98,
Cruel, Inhuman or Degrading 113, 122, 135, 188
Treament or Punishment, Art 33 �� 3, 5, 10, 13, 20, 30,
10 December 1984, 1465 31, 58, 76, 82, 92,
UNTS 85��116 98, 135, 188
Art 7 ��116 Art 46 �� 56
African Charter on Human and Art 48 �� 56
Peoples’ Rights, 17 June 1981, Art 49 �� 56
1520 UNTS 217�� 52, 53 Art 50 �� 56
Treaty Concerning the Construction and Art 51�� 56
Operation of the Gabcíkovo–Nagymaros Art 62 �� 27
System of Locks, 16 September 1977, 1978 Art 65�� 56
UNTS 236�� 119 Art 69 �� 56
Art 15�� 19 International Covenant on Civil and
Art 19�� 19 Policial Rights, 16 December
Art 20 �� 19 1966, 999 UNTS 171 �� 11, 138
Statute of the River Uruguay, 26 February Convention on the Settlement of
1975, 1295 UNTS 340�� 49 Investment Disputes between States
Agreement between Canada and France and Nationals of Other States,
on their Mutual Fishing Relations, 18 March 1965, 575 UNTS 159 ��117
27 March 1972, CTS 1979 Art 52�� 117
No 37�� 125 International Convention on the
American Convention on Human Elimination of All Forms of
Rights, 22 November 1969, Racial Discrimination,
OAS Treaty Series 36��6, 11, 49, 53 21 December 1965, 660
Art 22(6)�� 53 UNTS 195�� 11, 138
Vienna Convention on the Law of Art 2 �� 138
Treaties 23 May 1969, 1155 Art 5 �� 138
UNTS 331; (1969) 8 ILM �� 679
Table of Legislation xxi
Vienna Convention on Consular Treaty of Paris, 10 December
Relations, 22 April 1963, 596 1898, 187 CTS 100;
UNTS 261��50 11 Bevans 615�� 145
(European) Convention for the Anglo–German Treaty, 1 July 1890,
Protection of Human Rights 173 CTS 271�� 157–8
and Fundamental Freedoms, Art III �� 157–8
4 November 1950, 213 Declaration of the General Act of
UNTS 222�� 8–9, 11–12, 29–31, the Brussels Conference
52, 62, 85, 129, 132–4 2 July 1890, 173
Art 1 �� 29, 136, 138 CTS 188 �� 25, 118, 166
Art 1 Prot 7�� 53 Convention on the Protection of
Art 2 �� 169, 182 Submarine Cables 14 March 1884,
Art 5 �� 78 TS 380 �� 106
Art 46 �� 135 Treaty of Limits, 15 April 1858, 118 CTS
Convention on the Prevention and 439�� 1, 21
Punishment of the Crime of Treaty of Waitangi, 6 February 1840,
Genocide, 9 December 1948, 89 CTS 873 �� 106
78 UNTS 277��34, 115, 176–7 Treaty between the Kingdom of the
Art IX �� 177 Netherlands and Belgium relative
International Convention for the to the Separation of their Respective
Regulation of Whaling, Territories, 19 April 1839, 88 CTS
2 December 1946, 161 427�� 159
UNTS 72�� 19, 81, 120 Art XII�� 159
Charter of the United Nations, Treaty of London 20 October 1818,
26 June 1945, 892 TS 112; 12 Bevans 57�� 124
UNTS 119 �� 6, 129, 130–2, Saramaka Peace Treaty, 19 September
146–7, 190 1762, JJ Hartsinck, Beschryving
Statute of the International Court van Guianan (Tielenburg, 1770),
of Justice, 26 June 1945, 892 802–9 ��165–6
UNTS 119 �� 14, 85, 116, 175–6 Norway–Sweden Boundary Treaty,
Art 3 �� 21 26 October 1661, 5 CTS 495�� 147–8
Art 36 �� 175, 179 Danish–Swedish Peace Treaty of
Art 38 �� 14, 85 Roskilde, 1658 26 February
Art 41�� 116 (OS) or 8 March (NS) 1658,
Art 59 �� 117 5 CTS 1 �� 147–8
International Agreement for the
Regulation of Whaling, 8 June I NS T RU M E N TS OF
1937, 190 LNTS 79�� 81
R AT I F IC AT ION
Convention for the Regulation of
Whaling, 24 September 1931, Instrument of ratification by the United
155 LNTS 349 �� 81 Kingdom of Great Britain and
Covenant of the League of Nations, Northern Ireland of the Convention
28 June 1919, 225 CTS 195�� 129–30 for the Protection of Human Rights
Art 22 �� 130 and Fundamental Freedoms,
Convention of St Germain-en-Laye, deposited with the Secretary
10 September 1919, 226 CTS General of the Council of
186�� 150, 155 Europe on 8 March 1951�� 171, 178
Treaty between the Principal Allied Instrument of ratification by
and Associated Powers and Slovenia of the Convention
Poland, 28 June 1919, 225 for the Protection of Human
CTS 412 �� 7, 73 Rights and Fundamental
Treaty of Versailles, 28 June 1919, 225 Freedoms, deposited with
CTS 189 �� 34 the Secretary General of
xxii Table of Legislation
the Council of Europe on I TA LY
28 June 1994�� 170
Italian Civil Code �� 102
Art 1247�� 102
N AT ION A L
U N I T E D K I NGD OM
France
British North America Act 1867�� 106–7
Code Civil �� 100
s 24�� 106
Art 1156�� 100–1
Human Fertilisation and
Art 1157 �� 101
Embryology Act 1990 �� 108–9
s 1 �� 108
GER M AN Y Human Rights Act 1998�� 181
German Civil Code �� 101–2

Art 133�� 101–2
List of Abbreviations
AB Appellate Body (of the World Trade Organization)
AC Appeals Cases
ADS Arès Défence et Sécurité
AFDI Annuaire français de droit international
AJIL American Journal of International Law
All ER All England Law Reports
Ann de l’Inst Annuaire de l’Institut de droit international
Arb Int Arbitration International
Arch de phil de droit Archives de philosopie du droit
ARIEL Austrian Review of International and European Law
ARSIWA Articles on the Responsibility of States for Internationally
Wrongful Acts
ASIL American Society of International Law
ASIL Bull ASIL Bulletin
AYIL Australian Yearbook of International Law
Bevans Treaties and Other International Agreements of the United States of
America 1776–1949
Brooklyn JIL Brooklyn Journal of International Law
BVerfGE Entscheidungen des Bundesverfassungsgerichts (Decisions of the
German Federal Constitutional Court)
BYIL British Yearbook of International Law
CETS Council of Europe Treaty Series
Cr App R Criminal Appeals Reports
CTS Consolidated Treaty Series (Oxford University Press, 1969)
CLP Current Legal Problems
Curso Curso de Derecho Internacional Organizado por el Comité Jurídico
Interamericano
Denning LJ Denning Law Journal
DDP Digesto delle discipline pubblicistiche
ECHR European Convention for the Protection of Human Rights and
Fundamental Freedoms
ECR European Court Reports
ECtHR European Court of Human Rights
EEA European Economic Area
EGLR Estates Gazette Law Reports
EHRLR European Human Rights Law Review
EJIL European Journal of International Law
EWCA England and Wales Court of Appeal
FILJ Fordham International Law Journal
FYIL Finnish Yearbook of International Law
GATS General Agreement on Trade in Services
GC Grand Chamber (of the European Court of Human Rights)
GST Transactions of the Grotius Society
xxiv List of Abbreviations
GYIL German Yearbook of International Law
Hague Recueil Recueil des cours de l’Academie de droit international
Hastings LJ Hastings Law Journal
HRA Human Rights Act 1998
HRLJ Human Rights Law Journal
IACTHR Inter-American Court of Human Rights
ICCPR International Covenant on Civil and Political Rights
ICERD International Convention on the Elimination of All Forms of
Racial Discrimination
ICJ Rep Reports of Judgments, Advisory Opinions and Orders of the
International Court of Justice
ICLQ International and Comparative Law Quarterly
ICLR International Community Law Review
ICSID Convention on the Settlement of Investment Disputes between
States and Nationals of Other States
ILC International Law Commission
ILC Ybk Yearbook of the International Law Commission
ILM International Legal Materials
ILR International Law Reports (continuation of the Annual Digest)
JIDS Journal of International Dispute Settlement
JSPTL Journal of the Society of Public Teachers of Law
LC Lord Chancellor
LJIL Leiden Journal of International Law
Lloyd’s Rep Lloyd’s List Law Reports
LNTS League of Nations Treaty Series
LQR Law Quarterly Review
Max Planck Jahrbuch Jahrbuch der Max-Planck-Gesellschaft zur Förderung der
Wissenschaften
Michigan LR Michigan Law Review
MLR Modern Law Review
MR Master of the Rolls
NAFTA North American Free Trade Agreement
NATO North Atlantic Treaty Organization
NJIL Nordic Journal of International Law
NYIL Netherlands Yearbook of International Law
NZLR New Zealand Law Reports
PCA Permanent Court of Arbitration
PCIJ Publications of the Permanent Court of International Justice
RBDI Revue belge de droit international
RdP Revue du droit public
RGDIP Revue générale du droit international
RIAA United Nations, Report of International Arbitral Awards
RTDC Revue trimestrielle de droit civil
S Der Staat
SLR Statute Law Review
Stat US Statutes at Large (US Department of State)
TS Treaty Series (US Department of State)
U Cinc LR University of Cincinatti Law Review
U Ill LR University of Illinois Law Review
List of Abbreviations xxv
UKHL United Kingdom House of Lords
UKSC United Kingdom Supreme Court
UN Charter Charter of the United Nations
UNIDROIT International Institute for the Unification of Private Law
UNTS United Nations Treaty Series
Va JIL Virginia Journal of International Law
Vand JTL Vanderbilt Journal of Transnational Law
VCLT Vienna Convention on the Law of Treaties
Wheat Henry Wheaton, Reports of Cases Argued and Adjudged in the
Supreme Court of the United States 1816–1827
WHO World Health Organization
WLR Weekly Law Reports
WTO World Trade Organization
Yale JIL Yale Journal of International Law
Yale LJ Yale Law Journal
ZaöRV Zeitschrift für ausländisches öffentliches Recht und Völkerrecht
ZöR Zeitschrift für öffentliches Recht
1
Introduction
1.1 Research Question and Argument
What is the place of the evolutionary interpretation of treaties within the rules of
treaty interpretation codified in the Vienna Convention on the Law of Treaties
(VCLT)?1 That is the question to which this book seeks to provide an answer. The
point of departure in this regard is the working definition of ‘evolutionary inter-
pretation’ proffered by the International Court of Justice in Navigational Rights.2
The question there was whether the phrase ‘for the purposes of commerce’ in a
Nicaraguan–Costa Rican treaty of limits of 18583 covered tourism, ie the carriage
of passengers for hire. The Court held that the phrase must be interpreted so as to
cover all modern forms of commerce, including tourism. Where the parties have
used generic terms in a treaty, the parties necessarily having been aware that the
meaning of the terms was likely to evolve over time, and where the treaty has been
entered into for a very long period, the Court said, the parties must be presumed, as
a general rule, to have intended those terms to have an evolving meaning.4 Thus the
words ‘evolutionary interpretation’, the Court explained, refer to:
situations in which the parties’ intent upon conclusion of the treaty was, or may be pre-
sumed to have been, to give the terms used—or some of them—a meaning or content
1
Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331; (1969) 8 ILM
679. Article 31, entitled ‘General rule of interpretation’ provides: ‘1. 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. 2. The context for the purpose of the interpreta-
tion 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; (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. 3. There shall be taken into account, together with the context: (a) any subsequent agreement
between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the
parties regarding its interpretation; (c) any relevant rules of international law applicable in the rela-
tions between the parties. 4. A special meaning shall be given to a term if it is established that the
parties so intended.’ Space precludes the citation of the full text of Arts 32–33.
2
Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) Judgment ICJ
Rep 2009 p 213. See also: J Crawford, Brownlie’s Principles of Public International Law (8th
edn, Oxford University Press, 2012), 379–80; R Gardiner, Treaty Interpretation (paperback edn,
Oxford University Press, 2011), xviii–xx; M Dawidowicz, ‘The Effect of the Passage of Time on the
Interpretation of Treaties: Some Reflections on Costa Rica v Nicaragua’ (2011) 24 LJIL 201.
3
Treaty of Limits, 15 April 1858, 118 CTS 439 (in the Spanish original: ‘con objetos de comercio’).
4
Dispute regarding Navigational and Related Rights (n 2), 343 at [66].
2 Introduction
capable of evolving, not one fixed once and for all, so as to make allowance for, among
other things, developments in international law.5
As will be seen from the Court’s judicious choice of words, the concept of intent—
surprisingly, it might be thought—has a role to play in the evolutionary interpreta-
tion of treaties. Indeed, treaties are, as the International Law Commission (ILC)
has explained, ‘embodiments of the common will of their parties’.6 It follows logi-
cally, therefore, that ‘interpretation must seek to identify the intention of the par-
ties’.7 International courts and tribunals have, in keeping with this approach, made
clear just how important the concept of the intention of the parties is in treaty
interpretation.8
The thesis of this book is that the evolutionary interpretation of treaties can be
explained by a proper understanding of the intention of the parties, the intention
of the parties being the most important thread running through the law of trea-
ties. As such, the evolutionary interpretation of treaties is not a separate method of
interpretation; it is rather the result of a proper application of the usual means of
interpretation, as means by which to establish the intention of the parties.9 It is in
this regard important to make clear at the outset what is meant by the phrase ‘the
intention of the parties’. As will become clear in Chapter 3, the term is used here in
the objectivized sense relied on by the ILC. Thus the concept of the intention of the
parties ‘refers to the intention of the parties as determined through the application
of the various means of interpretation’;10 it ‘is thus not a separately identifiable origi-
nal will, and the travaux préparatoires are not the primary basis for determining the
presumed intention of the parties’.11 The ‘intention of the parties’ is a construct to
be derived from the articulation of the ‘means of interpretation admissible’12 in the
process of interpretation. This objectivized, or objective,13 nature of ‘the intention of
5
6
ILC Draft Conclusions on Subsequent Agreements and Subsequent Practice in Relation to the
Interpretation of Treaties 2013, ILC Report 2013 UN Doc A/68/10, 23.
7
Interpretation of Treaties 2013 (n 6), 18.
8
See Argentina/Chile Frontier Case (Palena) (1966) 16 RIAA 109, 174; (1966) 38 ILR 10, 89;
Dispute concerning Filleting within the Gulf of St. Lawrence (‘La Bretagne’) (Canada/France) (1986)
82 ILR 591, 659 at [67]; Young Loan Arbitration (1980) 59 ILR 494, 530 at [19]; Decision regarding
delimitation of the border between Eritrea and Ethiopia (2002) 25 RIAA 83, 110; (2002) 130 ILR 1,
34 at [3.4]; Case Concerning the Auditing of Accounts between the Kingdom of the Netherlands and the
French Republic Pursuant to the Additional Protocol of 25 September 1991 to the Convention on the
Protection of the Rhine against Pollution by Chlorides of 3 December 1976 (Netherlands/France) (2004)
25 RIAA 267; (2004) 144 ILR 259, 293 at [62]; Award in the Arbitration regarding the Iron Rhine
(‘Ijzeren Rijn’) (Belgium v Netherlands) (2005) 27 RIAA 35, 65 at [53]. Ch 3 below.
9
G Nolte, ‘Report 1 for the ILC Study Group on Treaties over Time’ in G Nolte (ed), Treaties
and Subsequent Practice (Oxford University Press, 2013), 169, 188.
10
Draft Report of the International Law Commission on the Work of Its Sixty-Fifth Session A/
CN.4/L.819/Add.1, 17–18.
11
Draft Report of the International Law Commission on the Work of Its Sixty-Fifth Session
(n 10), 18.
12
1966 ILC Ybk II 218–19.
13
RE Fife, ‘Les techniques interprétatives non juridictionnelles de la norme internationale’
(2011) 115 RGDIP 367, 372; M Fitzmaurice, ‘Interpretation of Human Rights Treaties’ in D
Shelton (ed), Handbook in International Human Rights Law (Oxford University Press, 2014), 745.
Research Question and Argument 3
the parties’ is clear from the fact that the ILC set out by its own admission to codify, in
the general rule of interpretation, ‘the means of interpretation admissible for ascertain-
ing the intention of the parties’.14 Another way of putting the matter is to see the means
of interpretation listed in Articles 31–33 as ‘indicators of the intention of the Treaty
Parties [which] may be admissible in defined circumstances for defined purposes’.15
This objective or objectivized nature of the concept of ‘the intentions of the par-
ties’ is clear also from what the International Court said in Navigational Rights,
where the Court stated that the aim of treaty interpretation is to establish ‘the
intentions of the parties as reflected by the text of the treaty and the other relevant
factors in terms of interpretation’.16
It is difficult to answer the question ‘what is the place of evolutionary interpreta-
tion within the rules of interpretation as codified in Articles 31–33?’ without also
looking into subjects other than treaty interpretation strictly defined, subjects with
which evolutionary interpretation shares an extensive frontier. ‘To define a territory
is’, after all, ‘to define its frontiers’.17 On this background, the research question
posed above leads to two further questions, connected with it but larger in scope.
The first one of these further research questions is whether there are numerous
methods of interpretation in the law of treaties or in fact only one. Though it is
impossible fully to provide an answer to this question within the confines of this
study,18 it is necessary in order to answer the main research question also to provide
an analysis of this problematic. This is closely connected with the issue of what
the ILC has called ‘the unity of the interpretation process’,19 the idea being that
some of these tools of interpretation are by definition more pertinent for particular
types of treaty than others. It is necessary, therefore, to enter into one sub-set of
the (now largely exhausted)20 debate about the fragmentation of international law,
14
1966 ILC Ybk II 218–19.
15
Dissenting Opinion, Judge Sir Franklin Berman, Industria Nacional de Alimentos SA and
Indalsa Perú (formerly Lucchetti SA and Lucchetti Perú SA) v Peru (Annulment) Case No ARB/03/4
at [8]‌.
16
Dispute regarding Navigational and Related Rights (n 2), 213, 237 at [48] (‘conformément aux
intentions de ses auteurs telles qu’elles sont révélées par le texte du traité et les autres éléments perti-
nents en matière d’interprétation’). Also Gardiner, Treaty Interpretation (n 2), xvii–xviii.
17
Territorial Dispute (Libya/Chad) (Judgment) [1994] ICJ Rep 21, 26 (inverted commas
removed).
18
See M Waibel, ‘Uniformity versus Specialisation: A Uniform Regime of Treaty Interpretation?’
in C Tams, A Tzanakopoulos, and A Zimmermann (eds), Research Handbook on the Law of Treaties
(Edgar Elgar, 2014); J Crawford, International Law as an Open System: Selected Essays (Cameron
May, 2002), 28–37.
19
Interpretation of Treaties 2013 (n 6), 19.
20
See M Koskenniemi, ‘Fragmentation of International Law: Difficulties Arising from the
Diversification and Expansion of International Law’ Report of the Study Group of the International
Law Commission, finalized by Martti Koskenniemi A/CN.4/L.682 at [159]–[171]. Also: P Webb,
International Judicial Integration and Fragmentation (Oxford University Press, 2013); J Crawford,
‘Chance, Order, Change: The Course of International Law’ (2013) 365 Hague Recueil 1, 205–
29; M Andenas and E Bjorge (eds), A Farewell to Fragmentation: Reassertion and Convergence in
International Law (Cambridge University Press, 2015); MA Young (ed), Regime Interaction in
International Law: Facing Fragmentation (Cambridge University Press, 2012).
4 Introduction
more specifically whether different types of treaty ought to be interpreted accord-
ing to different methods.
The second further research question bears upon the complexity thrown up in
treaty interpretation by the passage of time. If treaties are embodiments of the com-
mon intention of their parties, they are also ‘time-bound promises or propositions
that generally reflect a perspective at the time of being made’.21 Notwithstanding
General de Gaulle’s quip that ‘treaties are like roses and young girls; they last while
they last’,22 the fact that the time-bound promises to which treaties give expression
are meant in most cases to endure in many cases will give rise to the problem of
the passage of time. This could be summed up as whether there is in general inter-
national law a background rule that demands that, in the interpretation of rules,
account should be taken of ‘the evolution of law’.23 This bears on the question of
intertemporality (that is, the principles which determine whether a provision is to
be interpreted as at the time of the conclusion or of the application of the conven-
tion in which the provision is contained)24 and jus cogens superveniens (that is, the
appearance of new jus cogens rules through the evolution of peremptory rules of
international law),25 and will in the context of this book necessitate an analysis of
the impact of changes in international law, both ordinary and peremptory rules, on
treaty interpretation.
The analysis begins, in Chapter 2, with the general question of whether there
exist in the law of treaties specific rules of interpretation for different types of treaty,
and then moves on to the more specific question of what is the evolutionary inter-
pretation of treaties. Before it is possible to answer the main question, however,
there are other aspects whose relation to evolutionary interpretation need to be
analysed. Thus the interplay between evolutionary interpretation and treaty inter-
pretation on the basis of good faith and the intention of the parties is analysed in
Chapter 3. This will situate the main question of evolutionary interpretation in that
21
Crawford, Chance, Order, Change (n 20), 110.
22
Time, 12 July 1963. Also: Crawford, Brownlie’s Principles of Public International Law (n 2),
377.
23
Island of Palmas (Netherlands v United States of America) (1928) 2 RIAA 829, 845.
24
See eg Affaire de la Compagnie agricole du détroit de Puget (1869) 2 Recueil des arbitrages inter-
nationaux 513–17; Award of the Alaska Boundary Tribunal (1903) 15 RIAA 490, 491–3; The Indo–
Pakistan Western Boundary (Rann of Kutch) between India and Pakistan (1968) 50 ILR 2; (1968) 17
RIAA 1, 481–5; Eritrea v Yemen (Phase One: Territorial Sovereignty and Scope of the Dispute) (1998)
114 ILR 1, 46, 115; Decision regarding delimitation of the border between Eritrea and Ethiopia (2002)
25 RIAA 83, 110; (2002) 130 ILR 1, 34 at [3.4]; Land and Maritime Boundary between Cameroon
and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening) (Judgment) [2002] ICJ Rep 303,
404–7; Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/
Singapore) [2008] ICJ Rep 12, 50–1.
25
Case Concerning the Delimitation of Maritime Boundary between Guinea-Bissau and Senegal
(1989) 20 RIAA 119; Kuwait v American Independent Oil Co (AMINOIL) (1982) 66 ILR 518,
588–9; Aloeboetoe et al, judgment 10 September 1993, Series C, No 15.I/A at [56]–[57]. Also: H
Lammasch, Die Lehre von der Schiedsgerichtsbarkeit (Kohlhammer, 1913), 179; A Orakhelashvili,
Peremptory Norms in International Law (Oxford University Press, 2006), 154; A Lagerwall, ‘Article
64: Emergence of a New Peremptory Norm of General International Law (“jus cogens”)’ in O
Corten and P Klein (eds), The Vienna Convention on the Law of Treaties: A Commentary (Oxford
University Press, 2011), 1457; J Crawford, State Responsibility: The General Part (Cambridge
University Press, 2013), 315–18.
Research Question and Argument 5
which, on the approach taken in this book, is its right normative environment. It
should be added that the judgments by international courts and tribunals on which
the analysis in Chapters 2–3 is based does not make any claims to being completely
exhaustive. Nonetheless, the hope is that the selection of judgments is representative,
which it is believed is the case.
The time element, both the intertemporal law and jus cogens superveniens, is the
focus of Chapter 4. An example of what has been seen as evolutionary interpreta-
tion but which ought, it is argued here, not to be understood in this way is analysed
in Chapter 5. The example is taken from the jurisprudence of the European Court
of Human Rights and relates to the issue of jurisdiction ratione temporis (that is,
jurisdiction by reference to time). This particular jurisprudence is analysed in order
to bring out that at times it may be unhelpful, in fact quite confusing, to analyse
a judicial development as evolutionary interpretation. It is not the main object of
this study to prove the veracity of Lowe’s proposition that ‘treaty interpretation is
an area in which the returns on abstract theorizing are low, and diminishing’.26
Nonetheless, Chapter 5 goes some way in showing that the interest in interpretive
technique may certainly be taken too far, to the extent that one obscures, in fact
confuses, the material questions in issue. Chapter 6 concludes the analysis.
The main thesis of this book can be summarized in the following way: there is
nothing special about the evolutionary interpretation of treaties as compared with
other types of interpretation. Like all other types of interpretation it must be, and is
in fact, a function of the intention of the parties as determined objectively through
the application of the means of interpretation recognized by Articles 31–33.27
Although it is argued here that it has broad support in Articles 31–33, and the
way international courts and tribunals practice treaty interpretation, the proposi-
tion that evolutionary interpretation follows from the intention of the parties does
have its detractors.28 Crawford has observed that the issue of evolutionary interpre-
tation ‘is essentially one of the correct application of VCLT Article 31’.29 As will
become clear, it is argued in this book that, on the correct understanding of the law
of treaties, this is entirely pertinent.
It will be argued here that evolutionary interpretation must be understood by
departing from the insights, first, that evolutionary interpretation builds upon the
intention of the parties,30 and, secondly, that all the elements referred to in Article
31 provide, by objective means, the basis for establishing the common intention of
the parties.31
26
AV Lowe, International Law (Oxford University Press, 2007), 74.
27
See ILC Draft Conclusions on Subsequent Agreements and Subsequent Practice in Relation to
the Interpretation of Treaties 2013, ILC Report 2013 (n 6), 27 at [9]‌.
28
See Ch 3 below. 29
Crawford, State Responsibility: The General Part (n 25), 247.
30
See Young Loan Arbitration (1980) 59 ILR 494, 531 at [18]–[19]; Dispute concerning Filleting
within the Gulf of St Lawrence (‘La Bretagne’) (Canada/France) (1986) 82 ILR 591, 624, 659–60;
Award in the Arbitration regarding the Iron Rhine (‘Ijzeren Rijn’) (Belgium v Netherlands) (2005) 27
RIAA 35, 65, 73; Dispute regarding Navigational and Related Rights (n 2), 237 at [48].
31
See Case Concerning the Auditing of Accounts between the Kingdom of the Netherlands and the French
Republic Pursuant to the Additional Protocol of 25 September 1991 to the Convention on the Protection
of the Rhine against Pollution by Chlorides of 3 December 1976 (Netherlands/France) (Rhine Chlorides
6 Introduction
This main thesis builds on a set of propositions. There is in the law of treaties
one method of interpretation; it varies not as a function of which type of Tribunal
is interpreting the treaty, nor of the content of different types of treaty. It is a mis-
understanding, therefore, to say that the method of treaty interpretation relied on,
for example, by the Inter-American or the European Court of Human Rights is
different in nature from that of the International Court of Justice, the tribunals
composed under the aegis of the Permanent Court of Arbitration, or other tradi-
tional interpreters of general international law. This concerns the aspect of the main
thesis that addresses the interpreter; the other aspect concerns that which is being
interpreted. In this regard, too, it is argued that the method of construction relied
upon—whether the instrument to be interpreted is a boundary treaty, a human
rights treaty, a trade treaty, or the UN Charter—is the same. It is, moreover, not just
that the starting coordinates are the same, and that, as could be argued, different
regimes then take on particular hues according to their subject matter; the method
is the same all the way.
Turning to the background rules of the intertemporal law and jus cogens super-
veniens is in line with the primacy in treaty interpretation of the intention of the
parties. This is, as will be seen in Chapter 3.3, because treaty interpretation, while
it is ‘a single combined operation’,32 could be described as a process of progressive
encirclement, where the interpreter goes about establishing the intention of the
parties in the treaty text, in the disputed terms, in the whole of the treaty, in general
international law, and in the general principles of law. In many cases it is by this
concentric encirclement that the judge is able to establish the presumed intention of
the parties, in conformity with the fundamental demands of the fullness of inter-
national law and justice.33 As the ILC has stated, ‘the general rules of international
law’ are among ‘the primary criteria for interpreting a treaty’.34 It is in line with the
general approach taken in this book, therefore, to turn also to the intertemporal law
and jus cogens superveniens.
1.2 Impermissibility of Courts Reconstructing

Treaty Obligations
Treaty interpretation, as this book argues with respect to evolutionary interpreta-

tion, is subject to important limits set by the rules of interpretation. The operation
Arbitration) (2004) 25 RIAA 267; (2004) 144 ILR 259, 293 at [62]; Decision regarding delimitation of
the border between Eritrea and Ethiopia (2002) 25 RIAA 83, 110; (2002) 130 ILR 1, 34 at [3.4]; EC—
Computer Equipment, Report of the Appellate Body WT/DS62/AB/R; WT/DS67/AB/R; WT/DS68/
AB/R at [84]; US—Gambling, Report of the Appellate Body WT/DS363/AB/R at [84].
32
Interpretation of Treaties 2013 (n 6), 11; ILC Ybk 1966/II, 219–20.
33
M Huber (1952) 45 Ann de l'Inst 200–1; Gardiner, Treaty Interpretation (n 2), 141–2.
34
ILC Ybk 1964/II, 203–4 at [13], 204–5 at [15]. Also: ILC Draft Conclusions on Subsequent
Agreements and Subsequent Practice in Relation to the Interpretation of Treaties 2013 (n 6), 27 at [9]‌.
Courts Reconstructing Treaty Obligations 7
of interpreting a treaty is ‘designed to determine the precise meaning of a rule, but

it cannot change its meaning’.35 One important question is how much evolutionary
interpretation can be permitted before the interpretation extends beyond the bounds
of the intention of the parties.
This question is equally pressing with respect to all types of interpretation, no less
so for what has been called restrictive types of interpretation than it is for evolutionary
ones. It is in other words not only interpretations deserving of etiquettes such as ‘lib-
eral’ or ‘droits-de-l’hommiste’ which may overstep the mark and end up contravening
the intention of the treaty parties; this is true also of ‘conservative’ ones or those based
upon ‘raisons d’État’.
Though this has been largely overlooked in the literature,36 international jurispru-
dence has not been blind to this point. In fact, the first time the Permanent Court
of International Justice touched upon this type of issue it did so not in order to allow
for a large freedom for the states parties to act as they saw fit under the treaty; it was
rather in order to secure an interpretation that was favourable to internationalist
objects of minority protection. In this way, the Permanent Court in Acquisition of
Polish Nationality declined to follow the interpretation suggested by Poland as to who
was Polish for the purposes of Article 4(1) of the Treaty between the Principal Allied
and Associated Powers and Poland.37 The Permanent Court stated that seeing as the
treaty clause left little to be desired in the nature of clarity, it saw itself bound to apply
the clause as it stood, without considering whether other provisions might with advan-
tage have been added to or substituted for it. The Court concluded: ‘To impose an
additional condition for the acquisition of Polish nationality, a condition not provided
for in the Treaty of June 28th, 1919, would be equivalent not to interpreting the Treaty,
but to reconstructing it’.38
The reconstruction in question was rejected because it would have led to a solution
which would have been contrary to the very object of the treaty, to what the parties
had intended. The text expressed that object and that intention very clearly; not to
follow the clear text would therefore have amounted to reconstructing Article 4(1) of
the treaty.39 In other words, as the International Court would put it in Interpretation of
Peace Treaties, ‘it is the duty of the Court to interpret the Treaties, not to revise them’.40
To contravene, in this way, the intention of the treaty parties is, in other words, a dan-
ger that in no way is exclusive to evolutionary interpretation.
35
Case Concerning a Boundary Dispute between Argentina and Chile Concerning the Delimitation
of the Frontier Line between Boundary Post 62 and Mount Fitzroy (1994) 22 RIAA 3, 25 at [75].
36
See, however, R Kolb, Interprétation et création du droit international. Esquisse d’une herméneu-
tique juridique moderne pour le droit international public (Bruylant, 2006), 375–6.
37
Treaty between the Principal Allied and Associated Powers and Poland, 28 June 1919, 225 CTS 412.
38
Acquisition of Polish Nationality PCIJ (1923) Series B No 7, 7, 20.
39
Kolb, Interprétation et création du droit international (n 36), 376.
40
Interpretation of Peace Treaties (Second Phase) (Advisory Opinion) [1950] ICJ Rep 221, 229;
Rights of Nationals of the United States of America in Morocco (France v United States of America)
[1952] ICJ Rep 1952 176, 196. Also: Case Concerning the Delimitation of the Maritime Boundary
between Guinea-Bissau and Senegal (Guinea-Bissau v Senegal) (1989) 10 RIAA 119, 151 at [85];
Case Concerning a Boundary Dispute between Argentina and Chile Concerning the Delimitation of the
Frontier Line between Boundary Post 62 and Mount Fitzroy (1994) 22 RIAA 3, 25 at [75].
8 Introduction
As adumbrated above,41 what is central in the method of treaty interpretation
is that a convention is interpreted so as to be effective in terms of the intention of
the parties. As the ILC’s first Special Rapporteur on the law of treaties, Brierly, put
it: the object is ‘to give effect to the intention of the parties as fully and fairly as
possible’.42 What one ought to understand by the words ‘intention of the parties’
will be set out in more detail below.43 At any rate this full and fair giving of effect,
plainly linked to the so-called principle of effectiveness, is taken as seriously by the
International Court, and arbitral tribunals, as for example the European Court of
Human Rights. Among many writers it has nonetheless become de rigueur to hold
that the methods applied by different types of Tribunal are widely at variance with
each other. It has been averred that the European Court of Human Rights, in inter-
preting the European Convention on Human Rights (ECHR),44 ‘departs from the
canons of interpretation’ to such an extent that it ‘must have been an unacceptable
(if not shocking) violation of the sacred principles of international law for classical
international lawyers’.45
Here it will be argued that evolutionary interpretation is entirely in line with
the approach taken to treaty interpretation in the classical law of treaties. Consider
the example of effectiveness in treaty interpretation (‘effet utile’)46 which, as the
Tribunal in Iron Rhine explained,47 can lead to an evolutionary interpretation.48 The
International Court brought out the importance of the principle of effectiveness in
Territorial Dispute, where it relied in the interpretation of a boundary treaty on ‘one of
the fundamental principles of interpretation of treaties, consistently upheld by inter-
national jurisprudence, namely that of effectiveness’.49 The same was underlined in
Airey v United Kingdom, where the European Court held that the Convention ‘is
intended to guarantee not rights that are theoretical or illusory but rights that are
practical and effective’.50 In Nada v Switzerland a unanimous Grand Chamber of the
European Court underlined that the provisions of the Convention must be ‘inter-
preted and applied in a manner that renders its guarantees practical and effective’.51
41
See Ch 1.1.
42
JL Brierly, The Law of Nations: An Introduction to the International Law of Peace (Oxford
University Press, 1928), 168. 43
See Ch 3.1.
44
Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November
1950, 213 UNTS 222.
45
M Fitzmaurice, ‘The Practical Working of the Law of Treaties’ in MD Evans, International Law
(3rd edn, Oxford University Press, 2010), 188; M Fitzmaurice, ‘Dynamic (Evolutive) Interpretation
of Treaties and the European Court of Human Rights’ in A Orakhelashvili and S Williams (eds),
40 Years of the Vienna Convention on Treaties (British Institute of International and Comparative
Law, 2010), 92.
46
Dispute between Argentina and Chile concerning the Beagle Channel (1977) 21 RIAA 53, 231.
47
Award in the Arbitration regarding the Iron Rhine (‘Ijzeren Rijn’) (Belgium v Netherlands) (2005)
27 RIAA 35, 64 at [49]. 48
See Ch 3.
49
Territorial Dispute (Libya/Chad) (Judgment) ICJ Rep 21, 23. Also: Lighthouses Case between
France and Greece (Judgment) (1934) PCIJ Series A/B No 62, 27; Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970) [1971] ICJ Rep 16, 35 at [66]; Aegean Sea Continental Shelf [1978] ICJ Rep
3, 22 at [52].
50
Airey v United Kingdom App No 6289/73, judgment 9 October 1979 at [24].
51
Nada v Switzerland App No 10593/08, judgment [GC] 12 September 2012 at [182] and [195].
The Positions with Which this Book Takes Issue 9
The Tribunal in Iron Rhine said of the principles relevant to the process of inter-
pretation that: ‘of particular importance is the principle of effectiveness ut res magis
valeat quam pereat’.52 The importance in general international law of this principle
was also underscored in Beagle Channel. One may even be forgiven for thinking
that the Tribunal in this boundary dispute put the matter rather strongly when it
stated that it could only ignore the rule of effet utile ‘with the result that the Treaty,
instead of being “interpreted”, is amended and adapted in a manner that contra-
dicts its letter and spirit’.53 There is, in other words, more than just a casual affin-
ity between what the Beagle Channel Tribunal stated in this regard and what the
Permanent Court held in Acquisition of Polish Nationality.54
The principle of effectiveness is no more than one facet of a larger picture. In
his famous dissenting opinion in Belgian Police, Judge Fitzmaurice stated that it
was not the case ‘that a Convention such as the [European Convention on Human
Rights] should be interpreted in a narrowly restrictive way’. Instead, he continued,
the Convention should:
be given a reasonably liberal construction that would also take into consideration mani-
fest changes or developments in the climate of opinion which have occurred since the
Convention was concluded.55
Fitzmaurice had, in fact, made the point, as early as in 1951, that ‘there may well
be a special case for the use of what might be called creative or dynamic methods
of interpretation’.56
1.3 Outline of the Positions with Which this Book Takes Issue
The claim that there is one method only, and that it is applied across the board, leads
on to the next element of the main thesis of this book: the evolutionary interpreta-
tion of treaties. It is argued here that evolutionary interpretation is nothing if not
an expression of the traditional canons of treaty construction. Furthermore, it is
argued that there are times when it is necessary, in order to respect the parties’ com-
mon intention at the time when the treaty was concluded, to take account of the
meaning acquired by the terms in question upon each occasion on which the treaty
is to be applied.57 In some cases, not to make an evolutionary interpretation would
be that which would run counter to the intentions of the parties, and by extension
go against the grain of the classical canons of interpretation.
52
27 RIAA 35, 64.
53
Dispute between Argentina and Chile concerning the Beagle Channel (1977) 21 RIAA 53, 231.
54
Acquisition of Polish Nationality (1923) PCIJ Series B No 7, 7, 20.
55
Separate Opinion of Judge Sir Gerald Fitzmaurice, National Union of Belgian Police (1980) 57
ILR 262, 295.
56
G Fitzmaurice, ‘The Law and Procedure of the International Court of Justice: Treaty
Interpretation and Certain other Treaty Points’ (1951) 28 BYIL 1, 8.
57
See Dispute regarding Navigational and Related Rights (n 2), 242.
10 Introduction
Many leading authors have argued that evolutionary interpretation is best
understood as instances of international courts and tribunals departing (that is,
deviating) from the intention of the parties at the time of conclusion of a treaty.58
This seems at times to be based on an assumption that correct application of Article
31 of the VCLT does not lead to the intention of the parties.59
Another position with which this book takes issue is the view that evolutionary
interpretation is in principle more suited for some types of treaty than it is for oth-
ers. Simma has cast this view in the following terms: the interpretation adopted
by the International Court in Navigational Rights, where the Court made an evo-
lutionary interpretation of the treaty term ‘commerce’, was an indication of ‘the
willingness of the Court to test the application of progressive traits originally devel-
oped in specialized human rights jurisprudence to other branches of international
law’.60 The former Judge of the International Court, in other words, viewed treaty
interpretation in a boundary case as a situation for which evolutionary interpreta-
tion was not naturally suited, whereas it was naturally suited to the interpretation of
human rights treaties. Simma’s point is forcefully made. It is, however, also wrong.
Here it will be argued that evolutionary interpretation is a natural part of the clas-
sical canons of construction, and thus also of the rules codified in Articles 31–33
of the Vienna Convention. Evolutionary interpretation has also been applied as a
matter of course in international jurisprudence in fields far removed from that of
human rights, arguably even before the human rights bodies came into existence.
One example which goes some way in illustrating this is the 1925 Spanish Zone
of Morocco Claims, in respect of British rights, dating back to 1783, to a ‘maison
convenable’ to be used as British consulate in the Spanish Zone of Morocco.61 The
long timespan between 1783 and 1925 gave rise to the question of whether the con-
cept of an appropriate house for consular purposes had evolved. ‘Ces droits’, sole
arbitrator Huber held, ‘ne visent que l’usufruit d’une résidence “convenable”; sans
doute, cette dernière expression doit être interprétée au point de vue des exigences
de nos jours’.62 The right to the usufruct of a consular residence in 1925 must be
appropriate according to the conditions of the present day and not to the conditions
prevailing at an earlier time. Given that the Tribunal made allowance for develop-
ments in international law which had occurred since the treaty was concluded,63
Spanish Zone of Morocco Claims is an example of the evolutionary interpretation
of treaties, in a case far removed both in time and content from modern human
58
See eg Crawford, State Responsibility: The General Part (n 25), 246.
59
R Bernhardt, ‘Evolutive Treaty Interpretation—Especially of the European Convention on
Human Rights’ (1999) 42 GYIL 11, 14.
60
B Simma, ‘Mainstreaming Human Rights: The Contribution of the International Court
of Justice’ (2012) 3 JIDS 1, 20; B Simma, ‘Human Rights before the International Court of
Justice: Community Interest Coming to Life?’ in CJ Tams and J Sloan (eds), The Development of
International Law by the International Court of Justice (Oxford University Press, 2013), 323.
61
British Claims in the Spanish Zone of Morocco (1925) 2 RIAA 722; (1923–24) 2 Annual Digest
and Reports of Public International Law Cases 19.
62
British Claims in the Spanish Zone of Morocco (1925) 2 RIAA 722, 725.
63
rights law. McNair said about the evolutionary approach adopted in Spanish Zone
of Morocco Claims that it gave the terms of the treaty ‘a proper and common-sense
interpretation’.64
It is true that the European Court of Human Rights takes the same approach,
and it has done so using almost the same language as was used in Spanish Zone
of Morocco Claims. The European Court held in Tyrer v United Kingdom that the
ECHR ‘est un instrument vivant à interpréter . . . à la lumière des conditions de
vie actuelles’—‘a living instrument’ to be ‘interpreted in the light of present-day
conditions’.65
The Inter-American Court of Human Rights, too, has taken this approach. As
the Inter-American Court has held in a number of cases: ‘human rights treaties are
live instruments whose interpretation must adapt to the evolution of the times and,
specifically, to current living conditions’.66 The same is the case with the African
Commission on Human and Peoples’ Rights, which in Endorois adopted a living
instrument approach in interpreting the term ‘peoples’ to extend also to indigenous
groups.67
Other human rights treaty bodies have followed suit. In Judge v Canada the UN
Human Rights Committee said of the International Covenant on Civil and Political
Rights (ICCPR)68 that it ‘should be interpreted as a living instrument and the rights
protected under it should be applied in context and in the light of present-day
conditions’.69 The same is the case with the UN Committee on the Elimination
of Racial Discrimination, which held in Hagan v Australia that the International
Convention on the Elimination of All Forms of Racial Discrimination (ICERD),70
‘as a living instrument, must be interpreted and applied taking into [account] the
circumstances of contemporary society’.71
The human rights bodies have followed the approach taken in general inter-
national law. Waldock pointed out that ‘the problem of interpretation caused by
an evolution in the meaning generally attached to a concept embodied in a treaty
provision is, of course, neither new nor confined to human rights’. He went on, in a
64
AD McNair, The Law of Treaties (2nd edn, Oxford University Press, 1961), 468.
65
Tyrer v United-Kingdom (1978) 58 ILR 339, 353.
66
The Mayagna (Sumo) Awas Tingni Community v Nicaragua (2008) 136 ILR 73, 192 at [146]–
[148] [146]; Bámaca Velásquez v Guatemala, Series C No 70, judgment 2 November 2000 at [158];
Case of the Gómez Paquiyauri Brothers, Series C No 110, judgment 8 July 8 2004 at [165]; Case
of the ‘Street Children’ (Villagrán Morales et al), Series C No 63, judgment 19 November 1999 at
[193]; The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due
Process of Law, Series A No 16 Advisory Opinion OC–16/97, 14 November 1997 at [114]; Juridical
Condition and Rights of the Undocumented Migrants, Series A No 18 Advisory Opinion OC–18/03,
17 September 2003 at [120].
67
Centre for Minority Rights Development (Kenya) and Minority Rights Group International on
Behalf of Endorois Welfare Council v Kenya, Communication 276/2003, 4 February 2010.
68
International Covenant on Civil and Policial Rights, 16 December 1966, 999 UNTS 171.
69
Judge v Canada No 829/1998, Communication 5 August 2002, UN Doc CCPR/
C/78/D/829/1998 at [10.3].
70
International Convention on the Elimination of All Forms of Racial Discrimination, 21
December 1965, 660 UNTS 195.
71
Hagan v Australia No 26/2002, Communication 20 March 2003, UN Doc CERD/
C/62/D/26/2002 at [7.3].
12 Introduction
discussion of Airey and Tyrer, to describe the method of the European Court as one
according to which ‘the meaning and content of the provisions of the Convention
will be understood by the Commission and the Court of Human Rights as intended
to evolve in response to changes in legal or social concepts’; ‘this approach to the
construction of the Convention is in harmony with the general principles govern-
ing the interpretation of treaties’, he concluded.72
It is only fitting, therefore, that it took someone with a background in general
international law to coin the phrase ‘living instrument’. For it was Sørensen, noth-
ing if not a classical international lawyer,73 who seems to have been the first to use
the phrase when he stated in 1975—three years before the European Court was to
adopt the coinage—that: ‘The European Convention on Human Rights is a living
instrument’; ‘its provisions are capable of being interpreted in such a way as to keep
pace with social pace’.74 It later became clear, in the jurisprudence of the European
Court, that the Convention was then seen as being a living instrument to be inter-
preted in the light of present-day conditions.75 On this background, it is possible to
argue for a different reading than the one propounded by Simma.
Bernhardt, a former President of the European Court of Human Rights, has
gone further than Simma in arguing that evolutionary interpretation is particular
to human rights treaties. Thus Bernhardt has argued that although the provisions
on treaty interpretation contained in the VCLT on their face seem to make no
distinction between different types of treaty, this ought not to detract from the
fact that the object and purpose of human rights treaties set them apart from other
types of treaty. Human rights treaties must therefore, he maintains, be interpreted
differently from other types of treaty in international law. The impression that the
principles of treaty interpretation apply similarly to all types of treaty, he says, ‘is
either misleading or else correct only on a highly abstract level’; when it comes to
human rights treaties, he concludes, the traditional rules of treaty interpretation
‘need some adjustment’.76 Velu and Egrec have taken the same view on the interpre-
tation of the ECHR. The ECHR, they argue, is a sui generis instrument. They have
held that the classical canons of interpretation ‘doivent s’infléchir au contact des
72
H Waldock, ‘The Evolution of Human Rights Concepts and the Application of the European
Convention on Human Rights’ in Mélanges offerts à Paul Reuter—Le droit international: unité et
diversité (Pedone, 1981), 536, 547.
73
See Dissenting Opinion of Judge ad hoc Sørensen, North Sea Continental Shelf (Federal
Republic of Germany/Netherlands; Federal Republic of Germany/Denmark) [1969] ICJ Rep 3, 242;
M Sørensen, Les sources du droit international: Étude sur la jurisprudence de la Cour permanente de
justice internationale (Einar Munksgaard, 1946); M Sørensen (ed), Manual of Public International
Law (Macmillan, 1968).
74
M Sørensen, ‘Do the Rights Set forth in the European Convention on Human Rights in
1950 have the Same Significance in 1975? Report presented by Max Sørensen to the Fourth
International Colloquy about the European Convention on Human Rights, Rome 5–8 November
1975’: reprinted in Max Sørensen: A Bibliography (Aarhus University Press, 1988), 23, 54–5.
75
E Bates, The Evolution of the European Convention on Human Rights: From Its Inception to the
Creation of a Permanent Court of Human Rights (Oxford University Press, 2010), 328–33.
76
R Bernhardt, ‘Thoughts on the Interpretation of Human-Rights Treaties’ in F Matscher and
H Petzold (eds), Protecting Human Rights: The European Dimension. Studies in Honour of Gérard J
Wiarda (Carl Heymanns Verlag, 1988), 65, 70–1.
méthodes plus adaptées à cet aspect spécifique de la Convention, méthodes qui évo-
quent, à certains égards, celles dont usent les cours constitutionnelles nationales’.77
Letsas has taken a strong position in this regard. He argues that different kinds of
project will call for different methods of interpretation; it is thus necessary to adopt
a particular interpretive approach to international human rights treaties. This, in
Letsas’s view, is partly because a ‘first misconception is to think that Articles 31–33
VCLT set out single rules of interpretation for all treaties’; ‘there are no general
methods of treaty interpretation’.78 Weiler draws similar conclusions, with respect
to the classical canons of interpretation on the one hand and EU law on the other. He
has stated about the interpretation adopted by the European Court of Justice that
it is teleological and purposive, ‘drawn from the book of constitutional interpreta-
tion’ and not from the law of treaties.79 Indeed, he has called for a re-examination
of treaty interpretation; in his view a stronger emphasis must be put on the fact that
different types of international Tribunal apply different hermeneutics to different
types of treaty regime.80 He thus sees treaty interpretation as a wide-ranging set
of practices. In fact the thread that runs through his work in this field is that the
general rule of interpretation in ‘Article 31 is both descriptively and prescriptively
an “unreal” signpost of contemporary treaty interpretation’.81 As will become clear
in Chapters 2–3, this book takes another view of these issues.
With regard to the temporal aspect, it will be argued that the prominent place of
evolutionary interpretation in the law of treaties is further reinforced by the rules
of intertemporal law. It will in this regard be necessary to analyse and to take issue
with the view, prevalent in the decisions of international tribunals, that evolution-
ary interpretation goes against the grain of the intertemporal law. This view, I shall
argue, is often based upon a misconstruction of the principle of intertemporality,
which takes into account only the first limb of the rule.82 An attendant view is that
it is only as an exception to this (limited and ultimately erroneous) understanding
77
J Velu and R Ergec, La Convention européenne des droits de l’ homme (Bruylant, 1990),
51. Also: MA Eissen, ‘La Cour européenne des droits de l’homme’ (1986) 102 RdP 1539,
1586–7; G Cohen-Jonathan and JP Jacqué, ‘Activité de la Commission européenne des droits
de l’homme’ (1982) 28 AFDI 513, 527; WJ Ganshof van der Meersch, ‘Quelques aperçus
de la méthode d’interprétation de la Convention de Rome du 4 novembre 1950 par la Cour
européenne des droits de l’homme’ in Mélanges offerts à Robert Legros (Éditions de l’Université
de Bruxelles, 1985), 209–10; WJ Ganshof van der Meersch, ‘Le caractère “autonome” des
termes et “la marge d’appreciation” des gouvernements dans l’interprétation de la Convention
européenne des droits de l’homme’ in F Matscher and H Petzold (eds), Protecting Human
Rights: The European Dimension. Studies in Honour of Gérard J Wiarda (Carl Heymanns Verlag,
1988), 202.
78
G Letsas, ‘Strasbourg’s Interpretive Ethic: Lessons for the International Lawyer’ (2010) 21
EJIL 509, 512, 538–41. Also C Brölmann, ‘Specialized Rules of Treaty Interpretation: International
Organizations’ in D Hollis (ed), Oxford Guide to Treaties (Oxford University Press, 2012), 507–12.
79
JHH Weiler, ‘The Transformation of Europe’ (1991) 100 Yale LJ 2403, 2416.
80
JHH Weiler, ‘The Interpretation of Treaties—A Re-Examination’ (2010) 21 EJIL 507.
81
JHH Weiler, ‘Prolegomena to a Meso-Theory of Treaty Interpretation at the Turn of the
Century’, IILJ International Legal Theory Colloquim: Interpretation and Judgment in International
Law (NYU Law School, 14 February 2008), 14.
82
27 RIAA 35, 72–3; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v
Nigeria: Equatorial Guinea intervening) (Judgment) [2002] ICJ Rep 303, 405.
14 Introduction
of the principle of intertemporality that evolutionary interpretation becomes pos-
sible.83 This view is built upon a misunderstanding of what the rule of intertemporal
law is.
The second limb, I shall argue, is quite as important as the first. The corollary
in the second limb of the rule, the one focusing on the evolution of the law, goes
entirely with the grain of evolutionary interpretation, and it will be argued that the
two are in fact cut from the same cloth.
1.4 Methodological Questions
1.4.1 Treaties as a source of law

It is appropriate to say a few words about the nature of the treaty as a source of law in
international law, and what this might mean for the topic of the present study. Article
38(1) of the Statute of the International Court of Justice identifies ‘international con-
ventions, whether general or particular, establishing rules expressly recognized by
the contesting states’ as one of the formally recognized sources of international law.84
A treaty, according to Fitzmaurice, is strictly speaking not a source of law as much as
a source of obligation under law. On this understanding, treaties are a material rather
than a formal source of law. Treaties are no more a source of law than an ordinary
contract which simply creates rights and obligations, according to Fitzmaurice.
Conventional instruments thus do not create law; they create obligations. The
only ‘law’ that enters into treaties, Fitzmaurice concluded, is derived not from
the treaty which creates them, but from the rule of customary international law
summed up by the words pacta sunt servanda.85
This view is echoed in the modern literature, where it is argued that the inci-
dence of particular conventional obligations is a matter distinct from the sources
of general international law, which is made by more diffuse processes. On this
view treaties as such are a source of obligation and not a source of rules of general
application.86
83
See eg Separate Opinion of Judge El-Khasawneh in Land and Maritime Boundary between
Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening) (Judgment) [2002] ICJ
Rep 303, 503.
84
Statute of the International Court of Justice, 26 June 1945, 892 UNTS 119. Also: M Sørensen,
Les sources du droit international: Étude sur la jurisprudence de la Cour permanente de justice interna-
tionale (Einar Munksgaard, 1946), 28–30; S Besson, ‘Theorizing the Sources of International Law’
in S Besson and J Tasioulas (eds), The Philosophy of International Law (Oxford University Press,
2010), 163–85.
85
G Fitzmaurice, ‘Some Problems Regarding the Formal Sources of International Law’ in
Symbolae Verzijl: Présentées au Professeur JHW Verzijl à l’occasion de son LXX-ième anniversaire
(Martinus Nijhoff, 1958), 157–60. Also Sørensen, Les sources du droit international (n 84), 58. Cf
A Pellet, ‘Article 38’ in A Zimmermann, K Oellers-Frahm, C Tomuschat, and CJ Tams, The Statute
of the International Court of Justice: A Commentary (2nd edn, Oxford University Press, 2012), 761.
86
Crawford, Brownlie’s Principles of Public International Law (n 2), 21; A Clapham, Brierly’s
Law of Nations: An Introduction to the Role of International Law in International Relations (7th edn,
Oxford University Press, 2012), 55–7; M Shaw, International Law (6th edn, Cambridge University
Press, 2008), 94.
Methodological Questions 15
For the purposes of the present study, however, this distinction has little impor-
tance, except for the importance accorded to this debate in relation to the distinc-
tion between contractual treaties and law-making treaties and the proposition that
different methods of treaty interpretation apply to these allegedly different types
of treaty. This I shall return to in Chapter 2 which concerns the question whether
there exist in the law of treaties different types of method of treaty interpretation
for different types of treaty, and what this means for the topic of evolutionarily
interpreted treaty terms.
1.4.2 ‘Interpretation’ as opposed to ‘application’ of treaties

Adjudication plays a very minor role in settling international disputes when the
meaning of a treaty term is at issue. The role played in deciding the meaning of
a statutory term in domestic systems is largely displaced in international law by
the role of the parties to the treaty. This has the effect upon the rules of interpre-
tation that it reinforces the consensual nature of treaties, and according to some
authors also that the distinction between ‘interpretation’ and ‘application’ of trea-
ties becomes paramount within the law of treaties. On this understanding, ‘appli-
cation’ opens up a wider scope for case-to-case variation than does ‘interpretation’
narrowly understood.87 Sir Franklin Berman set this distinction out in his dis-
senting opinion in Industria Nacional de Alimentos SA and Indalsa Perú v Peru
(Annulment), where he held that: ‘Whereas treaty interpretation can often be a
detached exercise, it is virtually inevitable that treaty application will entail to some
extent an assessment of the facts of the particular case and their correlation with the
legal rights and obligations in play’.88
McNair thus observed that ‘the words “interpret”, “interpretation” are often
used loosely as if they included “apply”, “application”. Strictly speaking, when the
meaning of the treaty is clear, it is “applied”, not “interpreted” ’. This way of con-
ceptualizing the issue has been convincingly criticized by Gardiner, as it ‘sets on its
head the natural sequence that is inherent in the process of reading a treaty: first
ascribing meaning to its terms and then applying the outcome to a particular situa-
tion’.89 McNair went on by saying that: ‘Interpretation is a secondary process which
only comes into play when it is impossible to make sense of the plain terms of the
treaty, or when they are susceptible of different meanings’.90 This statement seems
to owe something to Vattel’s famous dictum about ‘clear meaning’, according to
which ‘il n’est pas permis d’interpréter ce qui n’a pas besoin d’interprétation’,91 and
87
F Berman, ‘International Treaties and British Statutes’ (2005) 26 SLR 1, 10. Also: Fife, ‘Les
techniques interprétatives’ (n 13); A Gourgourinis, ‘The Distinction between Interpretation and
Application of Norms in International Adjudication’ (2011) 2 JIDS 31.
88
Dissenting Opinion, Judge Sir Franklin Berman, Industria Nacional de Alimentos SA and
Indalsa Perú (formerly Lucchetti SA and Lucchetti Perú SA) v Peru (Annulment) Case No ARB/03/4
at [15].
89
Gardiner, Treaty Interpretation (n 2), 27–8.
90
McNair, The Law of Treaties (n 64), 365.
91
E de Vattel, Le droit des gens II (1758) ch XVII at [263].
16 Introduction
is susceptible to the same criticism that was levelled at the ‘clear meaning’ rule, that
is, as Lauterpacht put it, the statement ‘assumes as a fact what has still to be proved
and that it proceeds not from the starting point of the inquiry but from what is
normally the result of it’.92
A better definition than McNair’s is perhaps that given by Judge Ehrlich at
the jurisdictional stage in Factory at Chorzow, who said that ‘interpretation’ and
‘application’:
refer to processes, of which one, interpretation, is that of determining the meaning of a
rule, while the other, application, is, in one sense, that of determining the consequences
which the rule attaches to the occurrence of a given fact; in another sense, application is
the action of bringing about the consequences which, according to a rule, should follow
a fact. Disputes concerning interpretation or application are, therefore, disputes as to the
meaning of a rule or as to whether the consequences which the rule attaches to a fact,
should follow in a given case.93
Nonetheless, as Judge Shahabuddeen pointed out in Applicability of the Obligation
to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26
June 1947, the distinction will often be a highly academic one, given that on the
one hand ‘it is not possible to apply a treaty save with reference to some factual field’
and, on the other, ‘it is not possible to apply a treaty except on the basis of some
interpretation of it’.94
Of interest for the present purposes is the way in which interpretation and appli-
cation are seen as discrete exercises in relation to the meaning of treaty terms and
the passage of time. The principle of intertemporality refers to the principles which
determine whether a provision is to be interpreted as at the time of the conclusion
or of the application of the convention in which the provision is contained.95 It is
in relation to the question of intertemporality that the debate on ‘interpretation’
and ‘application’ has had the greatest purchase within the law of treaties.96 The
first draft of the provision which would become Article 31(3)(c), the projected
draft Article 56, was meant, before it was discarded by the ILC, to translate the
intertemporal law in terms of ‘interpretation’ and ‘application’. Thus the article
provided:
(1) A treaty is to be interpreted in the light of the law in force at the time
when the treaty was drawn up.
(2) Subject to paragraph 1, the application of a treaty shall be governed by the
rules of international law in force at the time when the treaty is applied.97
92
H Lauterpacht, The Development of International Law by the International Court (Stevens &
Sons, 1958), 52.
93
Dissenting Opinion of Judge Ehrlich, Factory at Chorzow, Jurisdiction (1927) PCIJ Series
A No 9, 39.
94
Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters
Agreement of 26 June 1947 (Advisory Opinion) [1988] ICJ Rep 57, 59. Also: Gardiner, Treaty
Interpretation (n 2), 28; MK Yasseen, ‘L’interprétation des traités d’après la convention de Vienne
sur le droit des traités’ (1976) 151 Hague Recueil 1, 10.
95
See Ch 4. 96 Gardiner, Treaty Interpretation (n 2), 256–8.
97
ILC Ybk 1964/II, 8–9 (emphasis added). See Ch 4 for the intertemporal law.
Methodological Questions 17
The interpretation of the treaty must, on this model, take consideration only of
those rules and facts obtaining at the time when the treaty was concluded; the
application, however, must, at any given time, take account of the rules and facts
obtaining at the time when the treaty is being interpreted.98
This model is mirrored by Milanovic, who sees interpretation as meaning the
activity of establishing the linguistic or semantic meaning of a text, whereas appli-
cation is the activity of translating that text into workable legal rules to be applied
in a given case. In his view, when a court engages in evolutionary interpretation, the
interpretation of the term at issue stays the same; it is only the application that has
been altered. Whilst Milanovic admits that the distinction between interpretation
and application may be hard to draw, he sees it as indispensable, as it is the only way
of assuring the fixation of the core of a legal norm, and thus the only way of assuring
a level of legal certainty and predictability, all the while allowing for non-legislative
change in the law.99
In fact, the consequences of adopting this approach was carefully weighed
by the ILC and in the end discarded.100 The ILC considered that to formulate,
on the basis of the distinction between ‘interpretation’ and ‘application’, a rule
covering the temporal element would present difficulties. Instead, the ILC went
back to the basics of the law of treaties: ‘the relevance of rules of international
law for the interpretation of treaties in any given case was dependent on the
intentions of the parties’; ‘correct application of the temporal element would
normally be indicated by interpretation of the term in good faith’.101 For the
purposes of analysis of what is the evolutionary interpretation of treaties, this
book follows the approach taken by the ILC; it does not rely upon the distinc-
tion between ‘interpretation’ and ‘application’. Rather than searching for the
wellspring of evolutionary interpretation in the interstices of the distinction
between ‘interpretation’ and ‘application’, this book follows Simma in seeing
the means of interpretation enumerated in Article 31 as making up the sedes
materiae of the phenomenon.102 As will become clear, this means searching for
the objectivized intention of the parties.
1.4.3 The theoretical approach taken in this book

Secondly, a word should be said about the theoretical approach taken in this study.
Increasingly, studies of the sources of law in international law, of treaty interpreta-
tion, and of legal evolution take theoretical approaches which go far in questioning,
98
ILC Ybk 1964/II, 8–10.
99
M Milanovic, ‘The ICJ and Evolutionary Interpretation’ (EJIL: Talk!, 14 July 2009) <http://
www.ejiltalk.org/the-icj-and-evolutionary-treaty-interpretation/>. Also B Simma, ‘Miscellanous
Thoughts on Subsequent Agreements and Practice’ in G Nolte (ed), Treaties and Subsequent Practice
(Oxford University Press, 2013), 48–9.
100
ILC Ybk 1966/II, 222.
101
ILC Ybk 1966/II, 222 at [16]. Also: Hersch Lauterpacht, International Law—Collected
Papers IV (Cambridge University Press, 1978), 437–8; Berman, ‘International Treaties and British
Statutes’ (n 87), 10; Gardiner, Treaty Interpretation (n 2), 256–9.
102
Simma, ‘Miscellanous Thoughts on Subsequent Agreements and Practice’ (n 99), 48.
18 Introduction
if not undermining, the possibility of believing in international law as law.103 This
type of analysis may certainly have an important role to play, as it may enrich our
understanding of international law, and the relation between international law and
international politics.104 Sometimes it seems the danger may arise, however, that
this type of analysis goes too far in undermining the legal nature of international
law.105 As will become clear in the following, this study does not apply this type of
analysis.
Evolution and evolutionary changes have made up the basis for many theories of
(linguistic) interpretation.106 Perhaps the fascinating element with respect to ‘evo-
lution’ in relation to law is that it represents change which builds upon that which
already exists, rather than change which makes a clean break with the past. As
Robin Cooke, later ennobled as Lord Cooke of Thorndon, once put it in relation to
the developments of the common law designed to meet the changing circumstances
of modern conditions, ‘developments of this kind are evolutionary’; ‘they do not
represent a break with the past’.107
This view has been taken also more generally with respect to developments of
international law, whether they are based upon treaty interpretation or not. Weiler,
for example, sees this type of development as accretion, and thus brings out how
legal change indeed builds upon already existing elements.108 One gets the impres-
sion that this is one of the reasons why Luhmann in his works on law in society
turned to ‘legal evolution’ in developing a theory of legal change.109 Related to
Luhmann’s view is that of Bourdieu, who in his sociological works on law was
interested in that which he termed ‘the force of law’.110 Bourdieu saw law in terms
of social fields. Such fields are settings in which agents, with their social positions,
are located:
It is not by chance that the attitudes concerning exegesis and jurisprudence, concerning
the sanctity of doctrine on the one hand and its necessary adjustment to concrete realities
on the other, seem to correspond rather closely to the positions that their holders occupy
within the field. On one side of the debate today, we find the adherents of private law, and
103
J d’Aspremont, Formalism and the Sources of International Law: A Theory of Ascertainment
of Legal Rules (Oxford University Press, 2011); I Venzke, How Interpretation Makes International
Law: On Semantic Change and Normative Twists (Oxford University Press, 2012); C Focarelli,
International Law as a Social Construct: The Struggle for Global Justice (Oxford University Press,
2012).
104
See eg S Marks, The Riddle of All Constitutions: International Law, Democracy, and the Critique
of Ideology (Oxford University Press, 2000); S Marks (ed), International Law on the Left (Cambridge
University Press, 2008); A Lang, World Trade after Neoliberalism: Reimagining the Global Economic
Order (Oxford University Press, 2011).
105
Crawford, Brownlie’s Principles of Public International Law (n 2), 18.
106
See Venzke, How Interpretation Makes International Law (n 103), 38–46.
107
RB Cooke, ‘The Rights of Citizens’ in RS Milne (ed), Bureaucracy in New Zealand (Oxford
University Press, 1957), 99.
108
JHH Weiler, ‘The Geology of International Law—Governance, Democracy and Legitimacy’
(2005) 64 ZaöRV 547, 549.
109
N Luhmann, Das Recht der Gesellschaft (Suhrkamp, 1993), 239–69.
110
P Bourdieu, ‘The Force of Law: Toward a Sociology of the Juridical Field’ (1987) 38 Hastings
LJ 814.
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working the material in the smithy. The Tasmanian proved one of the
fastest screw steamers built up to that time, having easily attained
over 14¹⁄₂ knots at Stokes Bay. Her consumption of coal, about three
pounds per indicated horse-power, was for that day extremely
moderate. The engines were constructed with three cylinders, had a
built crank-shaft, valves at the side, variable expansion, steam
reversing gear, a built propeller, and other fittings which are still
reckoned in that comprehensive term, ‘all modern improvements.’
The engines worked most successfully until the general adoption of
the compound engine made so many admirable contrivances
obsolete.”[75] Shortly after building the Tasmanian, Messrs. A. and J.
Inglis began to build for the British India Company with excellent
results to all concerned, and since then they have constructed many
vessels for this famous company.
[75] Engineering, July 30, 1897.
In July 1858, owing to the failure of the European and Australian

Mail Company, the Royal Mail Steam Packet Company agreed with
the Lords Commissioners of the Admiralty to continue the Australian
mail service, and entered into a mail contract for eight months for a
subsidy at the rate of £185,000 per annum, giving a monthly sailing,
with Government guarantee of £6000 a month under certain
circumstances if there were loss in the working.
The line of mail packets between Panama, New Zealand, and
Sydney was maintained in connection with the R.M.S.P. service to
the West Indies and Panama with the mails, and was regarded as a
useful alternative to the line from Point de Galle to King George’s
Sound and other Australian ports. The Panama, New Zealand, and
Australian Royal Mail Company was granted a yearly subsidy of
£9000 for the main line, excluding the intercolonial services, the
amount to be increased to £110,000 if the New Zealand Government
should afterwards stipulate for a higher rate of speed. The Ruahine,
the second vessel laid down, but the first completed for this line, was
constructed by Messrs. Dudgeon, and was a brig-rigged steamer of
1500 tons, and was 265 feet long, 34 feet beam, and 25 feet 7
inches deep, and had engines of 354 nominal horse-power, driving
Dudgeon’s double screws. She had accommodation for 100 cabin
passengers, 40 second cabin, and 65 in the steerage. She left
London on her maiden voyage in April 1865, and made the voyage
to her final Australian port in 63 days, of which she was only 55 days
actually at sea, the other days being accounted for by calls en route.
She was expected to make the passage between Panama and
Wellington in 25 days.
The Pacific Steam Navigation Company, which celebrated the
seventieth anniversary of its foundation in February 1910, owes its
inception to the enterprise of William Wheelwright, an American, who
was born at Newburyport, Massachusetts, in 1794, and died in
London while visiting England in September 1873. He began his
business life as a printer’s apprentice, but soon went to sea, and by
the time he was nineteen years old he was in command of a ship. He
was captain of the Rising Empire when she was wrecked in 1823 off
the Plate, and then shipped as supercargo on a vessel bound from
Buenos Ayres to Valparaiso. The following year he was appointed
United States Consul at Guayaquil and five years later removed to
Valparaiso. With the view of extending American commerce and
supplying better communication than then existed on the coast, he
established in 1829 a line of passenger vessels between Valparaiso
and Cobija, and in 1835 decided to place steamers on the west
coast. It took him three years to obtain the necessary concessions
from the South American countries concerned. American capitalists
fought shy of his proposals, so in 1838 he came to England, where
he was well received. His plan included the adoption of the route
across the Isthmus of Panama, though many years passed before
this portion of it was realised. The necessary capital, £250,000, was
raised in 5000 shares of £50 each, and a Royal Charter was granted
on February 17, 1840. The two wooden paddle-steamers, Chili and
Peru, were built for the line by Messrs. Curling, Young and Co. of
London in 1839; they were sister vessels and were each about 198
feet long by about 50 feet over the paddle-boxes and were brig-
rigged, of about 700 tons gross, and had side-lever engines of about
150 horse-power by Miller and Ravenhill. In 1840 they passed
through the Straits of Magellan, Mr. Wheelwright being on board one
of them, and received a series of national welcomes along the west
coast. Coaling difficulties were serious, and at one time the boats
were laid up for three months. At last, in order to secure a sufficient
supply, Mr. Wheelwright began to operate mines in Chili. These
vessels were not, as has often been stated, the first steamers to
enter the Pacific, for in 1825 a small steamer, the Telica, belonging
to a Spaniard, tried to trade on the coast, but was a financial failure
and the owner blew up his vessel and himself with gunpowder at
Guayaquil.
The Pacific Steam Navigation Company came near to being a
failure, but held on, and in 1852, having secured a further postal
contract, the company added four larger vessels of about 1000 tons
each to its fleet, all of them being employed on the purely local
service.
In 1852 there was a bimonthly service from Valparaiso to Panama,
where the line had a connection across the isthmus with the Atlantic
navigation. In 1855 the Panama Railway was opened, and the
company’s activity was greatly increased. In the following year also
the company adopted the compound type of engines, which was
only just brought out, being, it is stated, the first steam-ship
proprietary to do so for ocean traffic, and influenced probably by the
immense saving thereby made in fuel consumption.
Contracts were made in 1848 by the United States Government
with George Law, an American financier and shipowner, and his
associates, to carry the American mails from New York to Aspinwall
on the Isthmus of Panama, and with C. H. Aspinwall to convey the
mails on the Pacific side from Panama to San Francisco and ports
beyond. This was the inauguration of the Pacific Mail Line, and its
first steamer, the California, sailed from New York in October of that
year for San Francisco. The gold rush was at its height and the
demand for the steam-ships was so great that she was quickly
followed by the Pacific and Oregon, the latter built in 1845. All three
were wooden paddle-steamers about 200 feet long and of nearly
1060 tonnage, and made good passages round Cape Horn.
With the arrival of the three steamers on the west coast, the
transisthmian route was adopted for passengers and light
merchandise, and the Ohio and Georgia, which Law had built,
carried, in 1849, the first passengers by steam-ship to the isthmus
from New York.[76]
[76] Marvin’s “American Merchant Marine.”
When the Pacific Mail Company established a competing line

between New York and Chagres, Law placed an opposition line of
four steamers on the Pacific. In 1851 the rivalry was ended by his
purchasing their steamers on the Atlantic side, and selling to them
his new line from Panama to San Francisco.
Twenty-nine fine steamers, of a total of 38,000 tons, were built in
ten years for the two branches of the Californian trade, and the
Pacific Mail Company, representing an amalgamation of the Law and
Aspinwall interests, assumed the position, which it has retained ever
since, of the leading American steam-ship company in the Pacific.
The company is asserted to have carried 175,000 passengers to the
“golden west” in that decade and to have brought back gold to the
value of forty million pounds sterling.
“The Administration, which was so liberal in helping the Collins
Line to beat the British, contracted with the Pacific Mail Steamship
Company, formed in 1847, for a service from Panama to Astoria, and
from New York, Charleston, and New Orleans to Havana, from which
port the company already had a connecting line to Chagres (Colon),
thus completing the connection between the coasts.... The speed
from Panama to San Francisco was more than ten miles an hour.
Thus the United States had line traffic of first-class character
connecting its remote coasts before it had an American line to
Europe. At Panama it connected with the Pacific Steam Navigation
Company, giving service to Peru and Chili, so that before the middle
of the century the Pacific had at least 5000 miles continuous steam
line traffic.”[77]
[77] “The Ocean Carrier,” by J. Russell Smith.
The Royal Mail Steam Packet Company in the seventy years of its
existence has played an eventful part in the history of the mercantile
marine. Its earliest steamers were wooden paddle-boats, and were
among the best, but in spite of their excellence they experienced an
extraordinary run of misfortunes, and losses by fire and wreck
marred the records of the company for several years after its
incorporation in 1839. Its charter has been revised and extended
from time to time, one clause being that the whole of the share
capital must be British owned, and the management British. In its
long career it has served almost every port in the West Indies with
the mails, and has had no less than fifty-three contracts. At one
stage its management was subjected to some strong criticism, but
under its present management the company has prospered by leaps
and bounds, affording an excellent illustration of the value of well-
directed energy and enterprise.
The history of the Royal Mail Steam Packet Company is the record
of the development of the steamship connection between this
country and the West Indian Colonies. In 1840 the original contract
was entered into with the Admiralty Commissioners for executing the
office of Lord High Admiral for the commencement of the mail
service to the West India Colonies, the Spanish Main, New York,
Halifax, Mexico, Cuba, &c.
The conditions under which the mail contract was to be carried out
were somewhat onerous. One was that the company should receive
on board every vessel a naval officer or other person and his servant
to take charge of the mails, and that every such person should be
recognised and considered by the company as the agent of the
Commissioners in charge of the mails. He was empowered to
require a strict observance of the contract and “to determine every
question whenever arising relative to proceeding to sea, or putting
into harbour, or to the necessity of stopping to assist any vessel in
distress, or to save human life.” A suitable first-class cabin was to be
furnished at the company’s expense, and appropriated to the
officer’s use; he was to be victualled by the company as a first-cabin
passenger without charge, and should he require a servant, such
servant, “and also any person appointed to take charge of the mails
on board,” should also be carried at the company’s cost. From which
it would appear that some very comfortable places were at the
disposal of the Admiralty. The Admiralty representative was also to
be allowed a properly manned four-oared boat to take him ashore
whenever he felt inclined to go. Various penalties were applicable for
breaches of the contract, the fines ranging from £100 for doing
something of which the official did not approve to £500 for a delay of
twelve hours, and a further £500 for every twelve hours “which shall
elapse until such vessel shall proceed direct on her voyage in the
performance of this contract,” so far as the Barbadoes mails were
concerned, and of £200 for mails for other places. Another
stipulation was that naval officers were to be charged only two-thirds
of the ordinary fares as passengers. The company’s subsidy was to
be £240,000 per annum.
The company’s first steamer, the Forth, was launched at Leith in
1841, and on January 1, 1842, the West Indian mail service was
established by the sailing of the steamer Thames from Falmouth. On
completion of her voyage she proceeded to Southampton, which has
been the terminal port of the company ever since. The company
organised transit by mules and canoes across the Isthmus of
Panama in 1846, opening up the route via Colon and Panama to the
Pacific ports.
In the same year the Admiralty, in order to make a through mail
communication between England and the West Coast of South
America, contracted with the Pacific Steam Navigation Company for
the carrying of mails from Panama in connection with the R.M.S.P.
service to Colon, and the next year the latter company made through
arrangements with the Pacific Steam Navigation Company and the
Panama Railroad Company for traffic from Southampton (via
Panama) to the South Pacific Ports.
Enough has been written to indicate in some detail the progress
made in steam-ship construction. Wood was the material chiefly
used until near the middle of the nineteenth century. Iron then began
to take its place and the screw-propeller to supersede the paddle-
wheel. Some iron screw steamers have already been mentioned, but
this was inevitable, as no hard and fast line can be drawn across the
history of invention and commercial enterprise, to separate iron from
wood and screw from paddle. The screw propeller had actually been
tried by Stevens in 1802, and iron boats for inland waters were built
as early as 1787.
But the general adoption of iron for building steam-ships and of the
screw for the propulsion of ocean-going ships marks a new era in the
history of steam-ship building.
CHAPTER VIII
EXPERIMENTAL IRON SHIPBUILDING
he suitability of iron for shipbuilding purposes had

been admitted long before the construction of
wooden vessels reached its limit as a profitable
undertaking. The first experiments with iron were on
a small scale, but they demonstrated the theory of
displacement, so that observant marine builders had
it borne in upon them that flotation depended rather
upon the displacement of the floating body than upon the specific
gravity of the material for which the floating body was constructed.
But the general public was unconvinced, and making deductions
from a limited knowledge of the subject, cried: “Put a piece of iron on
the water and see if it will float.” With the increase in the size of
wooden steamers and sailing vessels there came the demand for
stronger, heavier, and thicker timbers for all parts. This meant so
much more unremunerative weight of hull to be carried and so much
less space available in proportion to the size of the vessel; so that in
time the limit of carrying cargo at a profit and of staunchness of
construction was bound to be reached.
In wooden steam-ships the limit of length was about 275 feet over
all; the Great Eastern, built in 1858, proved that there was apparently
no limit to the length of the iron ship.[78]
[78] Mr. John Ward’s Presidential Address to the Institution of
Engineers and Shipbuilders in Scotland, 1907.
This length has been exceeded by a few American wooden sailing

vessels. The largest square-rigged vessel ever built in America, the
shipentine Shenandoah, was of wood; her dimensions being 299·7
feet, beam 49·1 feet, and depth 19·9 feet; 3407 tons gross and 3154
net. She was built at Bath (Maine) in 1890 for Messrs. A. Sewall and
Co., and was acquired a couple of years ago by the United States
Government for a hulk at San Francisco, but has since been
recommissioned. Though not a clipper in the strict sense of the word,
she was a fast sailer and is sometimes called the last of the Yankee
wooden clippers.
As wooden hulls were made larger they displayed a tendency,
especially when they were built to carry propelling engines, to sag or
hog, that is to say, to droop amidships or at the ends. This difficulty
was ingeniously overcome in America, where wooden steamers
were built longer and lighter and shallower than in Great Britain to
suit the vast rivers of that country, by Stevens, who introduced his
hogging frame, to which fuller reference has been made in Chapter
II. But in the steamers of Great Britain, which were entirely for deep
sea, this arrangement was impossible, and the solution of the
difficulty had to be found in the use of a material other than wood.
The only substitute was iron. The change from wood to iron meant
a saving in weight of hull of about thirty to forty per cent., while it is
asserted that in a few cases there has been an even greater
difference. The saving also meant that the difference in weight could
be added to the weight of the cargo, without increasing the
displacement; while another advantage was that the beams and ribs
and stringers were of smaller dimensions, and the space thus
gained, added to that obtained by the substitution of thin iron plates
for wooden planking several inches thick, also very considerably
increased the space available for the stowage of cargo. Practically
every part of a ship was of wood until 1810, in which year the
scarcity of oak resulting from the extensive felling of trees in the
English forests compelled the use of iron for the knees or
connections between the deck-houses and the ribs, and for the
breast-hooks and pillars of ships.
An experimental iron barge was made in 1787 by J. Wilkinson the
ironmaster.
As early as 1809 it was proposed by Richard Trevithick and Robert
Dickenson that ships should be built of iron, but the proposal was
received with derision. The Vulcan, built in 1818 at Faskine near
Glasgow, is, so far as is known, the first iron vessel constructed for
commercial purposes, and so well was she built that as recently as
1875 she was engaged in transporting coal on the Forth and Clyde
Canal, and looked little the worse for wear. Her builder was one
Thomas Wilson.
The first iron steamer, however, was the Aaron Manby, built in
1821 at the Horseley Iron Works near Birmingham, to the order of
Captain Napier, afterwards Admiral Sir Charles Napier, and Mr.
Manby. She was put together at Rotherhithe, and in May 1822 at
Parliament Stairs took on board a distinguished party of naval
officers and engineers, whom she conveyed for a trip of several
hours up and down the river between Blackfriars and Battersea. A
contemporary newspaper described her as “the most complete
specimen of workmanship in the iron way that has ever been
witnessed.” This little vessel was 106 feet long and 17 feet broad,
and carried a 30-horse-power engine. Her wheels were of the type
known as Oldham’s revolving bars. Her only sea voyage was to
France under the command of Captain Napier. Upon arrival she was
employed on the Seine or Loire. Another iron vessel intended for
navigation on the Seine was shortly afterwards made in this country,
and the parts sent to France to be put together.
Little appears to have been attempted in this country for some
years in the way of iron shipbuilding, although in Ireland three or four
small iron sailers or steamers were constructed for inland navigation
purposes. But in 1828 John Laird of Birkenhead had his attention
directed to iron shipbuilding, and completed his first iron vessel there
the following year. Other builders followed where he showed the
way, and in less than three years there were shipbuilders on the
Thames, Clyde, and east coast of Scotland who were launching iron
vessels, the great majority of which were sailing ships. The famous
yards on the Cheshire side of the Mersey remained for some time
the headquarters of the new industry. The first iron vessels for the
United States—not the first iron-plated vessels, and this is a
distinction which should be noted—were launched there, and so
immediate was the recognition of the advantages of iron ships over
wooden ones that by 1835 there had been built at Laird’s the first
iron vessels for use on the rivers Euphrates, Indus, Nile, Vistula, and
Don. They were small compared with the wooden vessels afloat.
The Garry Owen, built in 1834 by MacGregor, Laird and Co. of
iron, was only 125 feet in length, 21 feet 6 inches beam, with two
engines totalling 90 horse-power. There were no Lloyd’s rules as to
scantlings for iron steamers in those days, and builders put in as
much material as they thought necessary for the strength of the
vessel, which usually meant a liberal allowance. The Garry Owen
was not much to look at, but she was very strongly built, a
circumstance which had a great deal to do with the development of
iron steam-ship building. She nearly came to grief on her first
voyage, for she was overtaken by a violent storm, which drove her
and several other vessels ashore. These others were of wood. Some
of them were soon pounded to pieces by the heavy seas, and those
that escaped total loss were badly damaged; but the Garry Owen,
though bumped and dented somewhat, was able to get afloat again
little the worse and return under her own steam.
If a steamer strongly built of iron could survive a storm and
stranding which ended the careers of several wooden ships of larger
dimensions, it was admitted that there was no valid reason why other
iron vessels should not prove equally safe, especially if they were
larger. It was considered that iron steamers might find useful
employment in short voyages, and several were built.
One of the chief of these vessels was the Rainbow, launched in
1837 for the London and coastal trade. She was 185 feet long by 25
feet beam, and of 600 tons, with engines of 180 horse-power.
The use of iron in construction was not the only factor in the
tremendous change which was coming in shipbuilding. A new form
of propulsion was necessary, and it was found in the screw propeller.
Before considering this, however, the development in the
construction of paddle-wheels and of the engines designed for
paddle-boats may be noticed.
The ordinary paddle-wheel had the floats fixed upon the radial
arms, but it was soon found that an improvement could be made by
causing the floats to assume a position vertical, or nearly so, at the
moment of contact with the surface of the water, and to retain that
position until the float had left the water. To effect this the floats are
not bolted to the arms but pivoted, and are retained in the required
position by means of levers operated by an eccentric pin. By this
means a much greater propulsive force was exerted. The old style of
paddle-wheel with fixed floats is now very seldom employed. These
wheels are now only to be found in vessels in which the expense of
construction has to be cut down to a minimum, or in a certain type of
steamer plying in shallow rivers, where the wheel is rather large, and
the dip of the float slight; but here again economy of construction
may count for more with the proprietor of the boat than the increased
speed he could obtain with the more expensive feathering wheels.
Many of the modern wheeled vessels have floats of steel, but in the
great majority of cases wood is employed, elm being largely used for
this purpose. The floats are usually about four times as long as they
are broad. Various forms are used, some being left square at the
corners, others are rounded, others again have the outer edge
elliptical in shape, and the experiment has also been tried with a fair
measure of success of inclining the floats to the axis of the wheel,
instead of having them parallel to it. The advantages claimed for this
last method are that the stream of water formed by the rotatory
motion of the paddles is driven slightly away from the sides of the
vessel, instead of in a direction parallel with her length. Wheels of
this type, however, lose much of their effectiveness when the
engines are reversed. Radial wheels are sometimes made with the
floats adjusted so that they enter the water almost perpendicularly,
but they are much more oblique under this arrangement when
leaving the water.
A difficulty which paddle-vessels have to contend with is that of
securing a proper immersion of the floats. For a vessel in smooth
water the immersion of the top edge is usually calculated at about
one-eighth of the breadth of the float; but for a vessel intended for
general sea service, an immersion of not less than half the breadth
of the float is allowed, that is to say, the float at its moment of
deepest immersion has a height of water above it equal to half its
diameter. If the float goes much deeper the efficiency of the wheel
becomes impaired. This is a point which has to be taken into
consideration in designing paddle-boats, so that the maximum power
shall be available when the vessel is fully laden, and shall not be
much lessened when the vessel is running light. The earliest
steamers suffered greatly in this respect as their designers had not
discovered the right size of wheels or floats to suit the hulls. A
loaded vessel consequently went very slowly owing to the great
depth to which her floats were immersed. To overcome this difficulty
an ingenious system of what can best be called reefing was
invented. Affixed to the axle of the wheel was a rod with an
arrangement of cogs at the end, and these fitted into a series of
teeth in rods affixed to the floats, so that it was a simple matter to
expand or contract the effective diameter of the wheel by altering the
position of the floats as required. The same result has sometimes
been obtained by a system of levers, but the toothed wheel business
was the older. It was tried on a few of the earlier boats on the Clyde,
not always, however, with success.
A peculiarity of some of the larger paddle-wheels in use in
America is that they are not only of much greater size than those in
use in Great Britain in proportion to the size of the boat, but they
have a proportionately less immersion and the wheel is constructed
in a very different fashion. The floats, instead of being of one piece,
as here, are constructed of three narrow fixed strips, two of which
are on the same radius but have a space between them equal to the
breadth of the third strip, which is placed a few inches behind the
vacant space. It is contended that this method disturbs the water
less than the broad float and increases the propelling efficiency.
Probably the most notable instance is the great wheel of the
Sprague.
Referring now to the construction of the engines of the earliest
boats, Symington’s Charlotte Dundas used a horizontal direct-acting
engine, and the general arrangement of her machinery would be
considered creditable even at the present day.[79] The engine of the
Savannah was of the inclined direct-acting type. The type of engine
which Newcomen invented has been retained for many years, but
the oscillating or walking beam which is such a conspicuous feature
of nearly all the American river craft has been placed by engineers in
this country below the crank axle instead of above. The type of
engine with the beam below the crank axle is known as the side
lever. It is a type peculiarly suitable to paddle-wheels, and this being
the only method of propulsion adopted on this side of the Atlantic for
many years, there was little change for a considerable period in the
shape of the engines, which therefore attained to a high stage of
perfection until the limit of their profitable employment was reached.
When larger engines became necessary, in consequence of the
rapidly increasing size of vessels, the great weight of the side-lever
engines proved a serious drawback.
[79] Sennet and Oram’s “The Marine Steam-Engine,” 1898.
Engineers were not long in devising a more compact form of

machinery, and direct-acting engines were introduced, these
involving the abandonment of the use of the heavy side levers. As
the side-lever engines were made larger it became customary to use
two beams, one on each side, and a rod from one end of each of
these connected with a cross-piece at the top of the piston-rod. The
other ends of the double beam were united by a cross-piece which
carried from its centre the rod or lever which worked the crank of the
paddle-shaft. Where it became necessary to use two engines in one
vessel, they were so arranged that while one rod and crank were at
their period of least activity, the other pair were exerting their
greatest effort. The system of condensation of steam, which it would
take too much space to describe in detail, is also a matter of great
importance in determining the power of the engine, but the principle
upon which the condensation is effected is well known, and the
various methods of condensation can easily be ascertained from the
numerous handbooks on engineering.
Maudslay’s Oscillating Engine.
Another early form of marine engine was that in which the side
levers were arranged as levers of the third order, the fulcrum being
at one end and the steam cylinder placed between it and the
connecting-rod. The peculiar motion thereby given to the machinery
caused this type to be known as the grasshopper engine, from a
fancied resemblance to the long legs of a grasshopper. The direct-
acting engines were much more compact, more powerful, and lighter
than the old side levers. The necessity of providing a connecting-rod
of sufficient length was met by Messrs. Maudslay by the provision of
two cylinders. The cross-head was not unlike the letter T, the foot of
which passed down between the cylinders, and the lower end of this
was fitted with a journal from which the connecting-rod extended to
the crank in the axle. A still further improvement was made when the
oscillating engines were invented, which form an even more compact
and simple type. Messrs. Maudslay fitted a pair of oscillating engines
in 1828 into the paddle-steamer Endeavour, and subsequently into
several ships. This form of engine was improved upon by Mr. John
Penn, the famous engineer at Blackwall, and the perfection which he
gave it has not been surpassed.
The great feature of this method is that the trunnions are hollow,
and the steam is admitted to and exhausted from the cylinders
through them. The connecting-rod is dispensed with and the upper
end of the piston-rod acts directly on the crank pin. This type of
engine is the most economical for space and weight that has yet
been provided for paddle-wheel engines, the majority of which of late
years have been made on this system.
Its adaptability for certain classes of work has given the paddle-
wheel a long lease of life. Paddles are peculiarly suitable for certain
conditions, such as smooth waters and shallow rivers, where speed
and light draught combined with considerable carrying power are
essential. The Indian rivers, for instance, early demanded suitable
steamers, and the paddle-steamers Lord W. Bentinck, Thames,
Megna, and Jumna were built of iron in 1832 for the East India
Company for the navigation of the Ganges. They were designed and
constructed by Maudslay, Sons, and Field, and fitted with oscillating
cylinder engines of 30 nominal horse-power. They were flat-
bottomed and were shipped to India in pieces. They were 120 feet in
length, 22 feet beam, and had a draught of 2 feet. Their tonnage was
275, builders’ measurement.
The steamers sent to India, however, from over sea were not the
only ones in that country.
As far back as 1820 there was launched at Bombay the first
steamer built in India; she was intended for service on the River
Indus. Her engines were designed by a Parsee. She must have been
a familiar object to many hundreds of Anglo-Indians during her long
career. She was only broken up as recently as 1880, and her end
came not through weakness but through her supersession by more
modern and commodious boats.
There is a custom peculiar to Bombay, and stated to be of Parsee
origin,[80] of driving a silver spike into the stern of a vessel at its
launch. This is said to be analogous to the placing of coins under the
foundation-stone. The ceremony was observed at the launching of a
paddle-steamer at Bombay in 1875, when a nail some seven inches
in length and three-quarters of an inch in diameter was used, but
whether such a ceremony took place at the launch in 1820 is not
recorded. If it is a Parsee ceremony, however, it is quite likely to
have been observed, for the East clings faithfully to its traditions.
[80] Notes and Queries.
A paddle-wheel steamer built in 1859 for service on the Indus had

a draught of only 20 inches. The hull was a frameless cellular raft,
but the walls of the deck cabin were worked into the depth of the
vessel, which was thus made a girder 200 feet in length, and by this
contrivance the engine and boilers, weighing 150 tons, were
supported. A couple of plate girders having a run of 115 feet were
included in her middle length. These were 15 feet deep and formed
the sides of the cabins, and they also projected under the deck for a
distance of 35 feet. The hull of the vessel was practically a long, flat,
shallow box; the stern was rounded and the keel was turned up
about 2 feet to allow of the water rising easily. The bow was rather
fine and designed on the wave-line principle. The engines were of
688 horse-power and the boilers had a pressure of 25 lb. The
paddle-wheels were 14¹⁄₄ feet in diameter. Her load displacement
was 331 tons and her draught when laden was only 24 inches.
The Ly-ee-moon, launched in 1860 by the Thames Iron and
Shipbuilding Company, resembled in some respects the steam-yacht
of the Queen. She was built for Messrs. Dent and Co. for service
between Hong-Kong and Shanghai, and was 270 feet in length and
27 feet 3 inches beam with a draught of 12 feet 6 inches. She was of
1003 tons register and 1394 tons displacement; her oscillating
engines had cylinders of 70 inches diameter, with a stroke of 5¹⁄₂
feet. She was the first merchant vessel fitted with Lindsay’s
apparatus for scaling the boilers with superheated steam. The
paddles were 22 feet diameter. She had two masts, the foremast
carrying lower yard, topsail yard and topgallant yard, and the trysails
reached to the topmast head and gave her a good spread of canvas.
She also carried several guns, and the sponsons were so fitted that
the guns could be worked on them in case of need. Her speed was
from 18 to 19 miles an hour. She afterwards passed into the
possession of the Japanese; the story goes that when she was
making her first run with Japanese only on board, the Japanese
engineers, being unable to stop the engines, put the helm hard over
and sat down to wait with true Oriental patience until the steam gave
out and she stopped of her own accord. The Ly-ee-moon afterwards
passed into Australian ownership and she ran for a long time in the
excursion and coastal trade, and was finally wrecked in March 1886,
when seventy persons lost their lives.
The paddle-steamer Leinster was one of four constructed of iron
for the mail service between Holyhead and Kingstown in 1860 by
Samuda Bros. She had nine water-tight bulkheads. A vessel
intended for this service, on which exceedingly rough weather is at
times encountered, through which the vessels are driven at full
speed in order to ensure the punctual delivery of the mails, has to be
built very strongly to stand the strain of the rough seas. For this
purpose the paddle-boxes were formed of iron plates internally,
continued from the sides and bulwarks of the vessel together with a
strong girder extending from each bow. Two of the four, the Ulster
and Munster, were withdrawn from the service in 1896-7 and turned
into barquentines, their places being taken by larger vessels of the
same names. The present bearers of the names are twin-screws and
have triple-expansion engines. The engines of the former boats had
each two oscillating cylinders, 98 inches in diameter and having a
stroke of 78 inches, situated immediately below the paddle-shaft.
They had each eight multitubular boilers bearing steam at 20 lb.
pressure, arranged in pairs, four before and four abaft the engines,
and with their ends backed to the sides of the vessel so as to allow
of the stoking of the furnaces from a middle gangway. The paddle-
wheels, 32 feet diameter, had fourteen floats 12 feet in length by 5
feet in width. The indicated horse-power was 4751, and the average
speed in all weathers was 15¹⁄₂ knots.
Model of the Engines of the “Leinster.”
Messrs. Scott, Russell and Co. launched at Millwall in September

1854, for a Sydney company, the steamer Pacific, which was
expected to prove one of the fastest vessels afloat. She was 270 feet
in length over all, breadth 82 feet, depth 34 feet, and tonnage 1200.
She had oscillating engines of 450 horse-power nominal and over
1000 effective, four independent boilers, and her feathering paddle-
wheels were of exceptional strength. She was estimated to steam
sixteen miles an hour.
The “Pacific.”
There was launched in the beginning of 1861 by Messrs. Pearse

and Co. of Stockton-on-Tees, for the conveyance of troops on the
lower Indus, a vessel which fulfilled the rather unusual requirements
of a Government Commission appointed to discover the best means
of navigating the Indian rivers which, though broad, are often shallow
in places, and abounding in sandbanks. This vessel was 377 feet
over all, beam 46 feet, breadth over paddle-boxes 74 feet, depth 5
feet, with a displacement at 2 feet draught of 730 tons. Her tonnage
was 3991 under the old system of measurement. Her engines, by
Messrs. James Watt and Co., were of 220 nominal horse-power, with
horizontal cylinders of 55 inches diameter and 6 feet stroke. The
paddle-wheels were 26 feet in diameter. The hull was of steel
strengthened longitudinally by four arched girders, two of which
carried the paddle-wheels, and the other two extended nearly the full
length of the ship. Other girders strengthened her athwartships. She
had no rudders in the ordinary sense, but was steered at each end
by blades, which were raised from or lowered into the water at the
required angle. The vessel had two tiers of cabins, and could
accommodate 800 troops and their officers.
The paddle-steamer Athole, built by Messrs. Barclay, Curle and
Co., Ltd., in the year 1866, was the first steamer to be fitted with the
saloon above the upper deck. The credit for this improvement rests
entirely with the late Mr. John Ferguson, who was then manager of
the shipbuilding yard. So impressed were Lloyd’s that they desired
Mr. Ferguson to patent his improvement, but this he refused to do as
he considered it ought to be given to the shipbuilding world free of
royalty.
Messrs. A. and J. Inglis were the builders in 1882 of the steel
paddle-steamer Ho-nam, which has the distinction of being one of
the few, and probably the first, English-built vessels constructed on
the American plan. She was rigged as a two-master carrying fore
and aft sails only. Her paddles were placed very far aft, and she was
fitted with a walking beam-engine. She was constructed for the
Chinese coastal trade and was of 2364 tons gross register, and was
so successful that others of the same type followed.
These necessarily brief notices of some of the more remarkable
paddle-boats of modern times, together with references in other
chapters to paddle-steamers of still more recent years, are sufficient
to show that the earlier form of propulsion has never been entirely
superseded by the screw.
Possibly the earliest definite attempt to apply the screw for
propelling purposes was made by David Bushnell in his abortive
submarine exploit, an account of which appears in Chapter XII.
hereafter;[81] but the propeller seems to have been very primitive.
The screw propeller was also proposed in 1752 by the
mathematician Daniel Bernoulli. A patent was granted in 1794 to
William Lyttleton for a screw propeller which was caused to revolve
by an endless rope passing round a wheel at the end of the axle. It
was a distinct attempt to solve the problem and nearly succeeded,
but it failed because there was too much of it. Had he been
contented to use one pair of blades he would have obtained better
results than by using two pairs of wide blades and two odd blades,
arranged with three blades on either side of the axle so that his

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The Evolutionary Interpretation of

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I N T E R N AT ION A L /BI L AT E R A L Art 2 ���������������������������������������������������� 56

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In July 1858, owing to the failure of the European and Australian

When the Pacific Mail Company established a competing line

he suitability of iron for shipbuilding purposes had

This length has been exceeded by a few American wooden sailing

Engineers were not long in devising a more compact form of

A paddle-wheel steamer built in 1859 for service on the Indus had

Messrs. Scott, Russell and Co. launched at Millwall in September

There was launched in the beginning of 1861 by Messrs. Pearse

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