Hostname: page-component-8448b6f56d-sxzjt Total loading time: 0 Render date: 2024-04-20T09:14:37.362Z Has data issue: false hasContentIssue false
  • English
  • Français

I. INTERNATIONAL COURT OF JUSTICE, CASE CONCERNING THE DISPUTE REGARDING NAVIGATIONAL AND RELATED RIGHTS (COSTA RICA V NICARAGUA) JUDGMENT OF 13 JULY 20091

Published online by Cambridge University Press:  27 January 2011

Eirik Bjorge
Eirik Bjorge
Affiliation:
DPhil Candidate (PRS), Corpus Christi College, Oxford and Research Fellow, University of Oslo.
Get access Rights & Permissions [Opens in a new window]

Extract

The technique of ‘evolutive interpretation’ is well known in public international law.2 It is particularly associated with treaty regimes like that of the European Convention on Human Rights (ECHR).3 The currency of this technique of interpretation has, however, been less evident in general public international law. It is not insignificant therefore that the International Court of Justice (ICJ), in a case about navigational and related rights has now made unambiguously clear that, where the parties have used generic terms in a treaty, aware that the meaning of the terms was likely to evolve over time, and where the treaty is one of continuing duration, the parties as a general rule must be presumed to have intended those terms to have an ‘evolving meaning’.4

Type
Current Developments: International Courts and Tribunals
Information
International & Comparative Law Quarterly , Volume 60 , Issue 1 , January 2011 , pp. 271 - 279
Copyright
Copyright © 2011 British Institute of International and Comparative Law

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

2 See Tzevelekos, VP, ‘The Use of Article 31(3)(c) of the VCLT in the Case Law of the ECtHR: An Effective Anti-Fragmentation Tool for the Reinforcement of Human Rights Teleology? Between Evolution and Systemic Integration’ (2010) 31 Michigan JIL 621Google Scholar; B Simma and T Kill, ‘Harmonizing Investment Protection and International Human Rights: First Steps towards a Methodology’ in C Binder et al (eds) International Investment Law for the 21st Century (OUP, Oxford, 2009) 685–694; Fitzmaurice, M, ‘Dynamic (Evolutive) Interpretation of Treaties I’ HYIL 2008 101–153Google Scholar; French, D ‘Treaty Interpretation and the Incorporation of Extraneous Legal Rules’ (2006) 55 ICLQ 281, 297–300Google Scholar; R Jennings and A Watts, Oppenheim's International Law, Volume I (9th edn, Longman, 1992) 1282; de Aréchaga, J ‘International Law in the Past Third of a Century’ 159 Recueil des Cours (1978–I) 48–50Google Scholar.

3 See Caflish, L and Trindade, A Cançado, ‘Les conventions américaine et européenne des droits de l'homme et le droit international général’ (2004) 108 RGDI 11Google Scholar; Bernhardt, R ‘Evolutive Treaty Interpretation, Especially of the European Convention on Human Rights’ (1999) GYIL 11–26Google Scholar.

4 Decision, para 66.

5 Decision, para 44.

6 Decision, para 45.

7 The Court here adverted to Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, [2007] ICJ Rep 109–10, para 160 and Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment [1994] ICJ Rep 21–22, para 41.

8 Decision, para 48. This was criticized by Judge Skotnikov, who cited the ‘Wimbledon’ dictum from SS ‘Wimbledon’, Judgments, 1923, PCIJ, Series A, No 1, 24–5, in his Separate Opinion, para 3–6: ‘[t]he Court should have examined the intentions of the Parties at the time of the conclusion of the Treaty, taking full account of the well-established principle that limitations on the sovereignty of a State are not to be presumed’, Separate Opinion of Judge Skotnikov, para 4.

9 Decision, para 48.

10 ibid. See the criticism of the traditional principle that limitations on the sovereignty of a State are not to be presumed in Crema, L, ‘Disappearance and New Sightings of Restrictive Interpretation(s)’ (2010) 21 EJIL 681CrossRefGoogle Scholar.

11 Decision, para 52.

12 ibid para 54.

13 ibid para 55.

14 ibid para 56.

15 ibid para 58.

16 ibid para 59.

17 ibid para 60.

18 [1952] ICJ Rep 176.

19 ICJ Reports 1999 (II), p 1062, para 25. Judge Higgins in her Declaration significantly distinguished the case from Aegean Sea Continental Shelf (Greece v Turkey) ICJ Reports 1978, p 3 by saying that: ‘The term “the main channel” is not a “generic term” (cf. [Aegean Sea] para 77)—that is to say, a known legal term whose content the parties expected would change through time.’ Declaration per Higgins, para 2.

20 Decision, para 63.

21 ibid para 64.

22 ibid para 65.

23 [1978] ICJ Rep 3. Other examples which could have been mentioned are Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) notwithstanding Security Council Resolution 276 [1971] ICJ Rep 31 (where the Court found that the guarantees in art 22 must be read against the background that the mandate was a ‘sacred trust for civilization’, the effect of which was that it was to be assumed that the parties to the Covenant accepted that the content of art 22 was evolutionary, not static) and Gabčíkovo–Nagymaros Project (Hungary/Slovakia), [1997] ICJ Rep 7 (see below under D).

24 Decision, para 65.

25 See above under A.

26 Decision, para 66. Judge Skotnikov in his Separate Opinion, para 6, took issue with the Court's evolutionary approach, and particularly its ‘mechanical application’ of the holding in Aegean Sea. He did, however, not disagree with the result, which he reached by way of recourse to the subsequent practice of the Parties rather than evolutive interpretation, Separate Opinion of Judge Skotnikov, paras 8–10.

27 Decision, para 70.

28 ibid.

29 ibid.

30 Another apposite example, from the Permanent Court of Arbitration, is Arbitration Regarding the Iron Rhine Railway (Belgium v The Netherlands) (2005), para 80.

31 Gabčíkovo–Nagymaros, para 112.

32 ibid.

33 ibid.

34 Gabčíkovo–Nagymaros, para 112.

35 French (n 2) 296.

36 Decision, para 66 (emphases added).

37 Higgins, R ‘Time and the Law: International Perspectives on an Old Problem’ (1997) 46 ICLQ 501CrossRefGoogle Scholar, 519.

38 ibid.

39 ibid.

40 Fitzmaurice, M ‘Richard K Gardiner. Treaty Interpretation’ (2009) 20 EJIL 919CrossRefGoogle Scholar, 955. Another recent example of the same perspective is Letsas, G, ‘Strasbourg's Interpretive Ethic: Lessons for the International Lawyer’ (2010) 21 EJIL 509CrossRefGoogle Scholar.

41 See Nordeide, R, ‘Demir & Baykara v Turkey’ (2009) 103 AJIL 567Google Scholar, 573 for a recent analysis of the approach of the European Court of Human Rights and a tour d'horizon of the vast literature on the ‘fragmentation of international law’.