The Holistic Interpretation of Treaties at the International Court of Justice

2018 ◽  
Vol 87 (3) ◽  
pp. 249-343 ◽  
Author(s):  
Liliana E. Popa
Keyword(s):  
Case Law ◽  
Vienna Convention ◽  
Main Argument ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Extended Analysis ◽  
Holistic Interpretation ◽  
Treaty Interpretation ◽  
Interpretative Approach

This article revises the topic of treaty interpretation at the International Court of Justice and focuses on what judges at this Court do in terms of treaty interpretation. The main argument developed in the article, based on an extended analysis of case-law at the ICJ, prior to and after the adoption of the 1969 Vienna Convention on the Law of Treaties, is that the ICJ’s approaches to interpretation after the VCLT was adopted are consistent with the canons of treaty interpretation which this Court has greatly developed and applied with consistency since its inception. The case-law analysis reveals a preference of the PCIJ/ICJ for holistic interpretation, and thus for the use of more rules and methods of interpretation than initially declared by the Court as sufficient to solve the issue of interpretation before it, in an interpretative approach which could be termed ‘overbuilding’.

scholarly journals The Search for Meaning: continuing Problems with the Interpretation of Treaties

2002 ◽  
Vol 33 (2) ◽  
pp. 209 ◽  
Author(s):  
Peter McRae
Keyword(s):  
Conclusive Evidence ◽  
Vienna Convention ◽  
Search For Meaning ◽  
International Court Of Justice ◽  
Orthodox Interpretation ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
Treaty Interpretation ◽  
The Law

This paper argues that old controversies regarding the objects and methods of treaty interpretation have not been resolved by the coming into force of articles 31 and 32 of the Vienna Convention on the Law of Treaties 1969. The articles, it is argued, have not so much resolved previous debates between "schools" of interpretation, as obscured them under an apparently clear regime, while interpreters continue to adopt their own preferences. The paper describes the three main schools – textualist, intentions of the parties, and teleological – and concludes none offers a satisfactory scheme by itself. It then examines the development of the Convention articles, and concludes they represented a compromise in which the drafters failed to resolve the key issue of the underlying purpose or object of interpretation. It then shows that an orthodox interpretation of the articles has developed, which assumes they embody the textualist position. The paper then discusses how this orthodoxy has been accepted by the majority of the International Court of Justice in the 1990s, but with significant dissent drawing on insights from especially an intentions of the parties approach. The paper then draws on insights from modern approaches to the interpretation of commercial contracts, to suggest that the best resolution of the "text versus intentions" dichotomy lies in accepting that establishing the actual intentions of parties is the purpose of interpretation, and that therefore an apparently clear text will be strong but not conclusive evidence of such intentions. The paper examines how this refinement would have helped to resolve difficult interpretations before the ICJ, and concludes that such an approach is both desirable and consistent with articles 31 and 32.

Rethinking the Meaning of Ordinary Meaning in Light of the ICJ’s Jurisprudence

2021 ◽  
Vol 20 (2) ◽  
pp. 267-288
Author(s):  
Katayoun Hosseinnejad
Keyword(s):  
Vienna Convention ◽  
International Court Of Justice ◽  
Ordinary Meaning ◽  
Objective Standard ◽  
Court Of Justice ◽  
International Court ◽  
Starting Point ◽  
The Law ◽  
Legal Meaning

Abstract Article 31 of the Vienna Convention on the Law of Treaties calls for consideration of the ordinary meaning as the starting point in the process of interpretation. Although the linguistic concept of ordinary meaning is founded on the idea that the meaning of a sentence is directly imposed by the norms of language so that interpreters are provided with an objective standard which is external to their subjectivity, this article demonstrates that the interpretive jurisprudence of the International Court of Justice has departed from the imperatives of the ordinary meaning doctrine. Rather, the Court, mindful of the problem that no mere sequence of words can represent actual legal meaning, has moved towards construction of ordinary meaning.

scholarly journals States’ Mouthpieces or Independent Practitioners? The Role of Counsel before the ICJ from the Perspective of the Legal Value of their Oral Pleadings

2021 ◽  
Vol 20 (1) ◽  
pp. 54-76
Author(s):  
Marco Longobardo
Keyword(s):  
International Law ◽  
State Responsibility ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
State Practice ◽  
The Icj ◽  
Treaty Interpretation

Abstract This article explores the role of counsel before the International Court of Justice, taking into account their tasks under the Statute of the Court and the legal value of their pleadings in international law. Pleadings of counsel constitute State practice for the formation of customary international law and treaty interpretation, and they are attributable to the litigating State under the law on State responsibility. Accordingly, in principle, counsel present the views of the litigating State, which in practice approves in advance the pleadings. This consideration is relevant in discussing the role of counsel assisting States in politically sensitive cases, where there is no necessary correspondence between the views of the States and those of their counsel. Especially when less powerful States are parties to the relevant disputes, the availability of competent counsel in politically sensitive cases should not be discouraged since it advances the legitimacy of the international judicial function.

The 2004 Judicial Activity of the International Court of Justice

2005 ◽  
Vol 99 (2) ◽  
pp. 450-459 ◽  
Author(s):  
John R. Crook
Keyword(s):  
The United States ◽  
State Court ◽  
Vienna Convention ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Court Proceedings ◽  
Crown Prince ◽  
Palestinian Territory

During 2004 the International Court of Justice decided three important matters. In March the Court found that the United States had violated the Vienna Convention on Consular Relations with respect to a number of Mexican nationals sentenced to death in U.S. state court proceedings. In a much-noted advisory opinion, the Court concluded in July that Israel's construction of a security wall or fence in occupied Palestinian territory violated international law. And in December it found that it did not have jurisdiction over Serbia and Montenegro's claims against eight NATO countries regarding NATO's 1999 bombing campaign aimed at halting the conflict in Kosovo. In other developments, the Court heard and had under deliberation Germany's preliminary objections to Liechtenstein's suit regarding certain property of Crown Prince Adam. Finally, Judge Gilbert Guillaume, a member of the Court since 1987 and its former president, announced that he would resign in February 2005.

The LOSC as a Package Deal and Its Implications for Determination of Customary International Law

2020 ◽  
Vol 35 (4) ◽  
pp. 704-739
Author(s):  
Xuexia Liao
Keyword(s):  
International Law ◽  
Case Law ◽  
Law Of The Sea ◽  
Not Given ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
United Nations Convention

Abstract This article revisits the package deal nature of the United Nations Convention on the Law of the Sea (LOSC) and its implications for determining customary international law. A survey of the case law illustrates that the International Court of Justice (ICJ) has not given particular weight to the fact that the LOSC was negotiated and accepted as a package deal. Nevertheless, the ICJ’s declaration that Article 121, paragraph 3 of the LOSC is a customary rule tends to be based on a ‘package deal approach’, which focuses on the textual and logical links between the paragraphs that manifest an ‘indivisible régime’. By exploring the difficulties of determining the customary status of Article 76(2)–(7) concerning the continental shelf beyond 200 nautical miles, which may arise in the pending Nicaragua v. Colombia II case, this article calls for a cautious attitude towards determination of customary rules from the LOSC.

The Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America) – Preliminary Objection

1997 ◽  
Vol 10 (3) ◽  
pp. 541-551
Author(s):  
Roger S. Clark
Keyword(s):  
United States Of America ◽  
Case Law ◽  
Third Party ◽  
Advisory Opinion ◽  
Islamic Republic ◽  
International Court Of Justice ◽  
Oil Platforms ◽  
Court Of Justice ◽  
International Court ◽  
Islamic Republic Of Iran

The case-law of the International Court of Justice (Court) is replete with arguments about whether the Court has jurisdiction to entertain the particular dispute (or request for advisory opinion) with which the Court is faced. These arguments are framed at one level as matters of interpretation of the relevant instruments. But they typically play out as well a multiplicity of variations on the overlapping themes of sovereignty (the extent to which states have been prepared to concede decision-making to third-party settlement mechanisms) and justiciability (the extent to which they will accept that an issue may be governed by ‘law’ and thus be susceptible to resolution by judicial actors).

Does Size Matter? The ICRW and the Inclusion of Small Cetaceans

2014 ◽  
Vol 3 (2) ◽  
pp. 241-263 ◽  
Author(s):  
Sean Stephenson ◽  
Arne Mooers ◽  
Amir Attaran
Keyword(s):  
International Court Of Justice ◽  
International Convention ◽  
International Whaling Commission ◽  
Court Of Justice ◽  
International Court ◽  
Commercial Whaling ◽  
Treaty Interpretation ◽  
Size Matter ◽  
Scientific Arguments

AbstractThe competency debate over small cetacean regulation at the International Whaling Commission (IWC) is legal in nature, yet has been in a political stalemate for years. In this article we argue that the IWC has the competence to regulate small cetaceans and that the commercial whaling of ‘small cetaceans’ is a violation of the moratorium on commercial whaling. We present hybrid legal and scientific arguments and counter-arguments for the treaty interpretation of the International Convention for the Regulation of Whaling and, given recent precedent, advocate that the International Court of Justice be called upon to resolve this matter.

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