Basic rules of interpretation
1. The rule of ordinary meaning and context
Basic rules of interpretation are as follows. The terms contained in the norm should be understood in their ordinary meaning and in context.
Special meaning can be given to the term only if it is established that such was the intention of the parties. The ICJ noted in the Competence of the General Assembly for the Admission of a State to the United Nations case51 that ‘the first duty of a tribunal which is called upon to interpret and apply the provisions of a treaty is to endeavour to give effect to them in their natural and ordinary meaning in the context in which they occur.” On the basis of this provision, for example, the European Court of Human Rights held in the Lithgow case that the use of the phrase “subject to the conditions provided for by the general principles of international law” contained in Article 1 of Protocol I of the European Convention in the context of compensation for interference with property rights, could not be interpreted as extending the general principles of international law in this field to establish standards of compensation for the nationalization of property of nationals (as distinct from aliens).
2. The rule of lex specialis
The rule of a special norm (lex specialis) is a general principle of law. Interpretation should be based on the priority of the application of special rules over general rules. We are talking about the priority of the application, not a general priority or a higher legal force which would allow a special norm to cancel the general one. Special norms clarify, specify and complement the general norms, and sometimes make exceptions.
Recognizing the priority of the application of special rules, it is impossible to interpret them broadly.
Such rules are applied strictly in accordance with their purpose to those cases to which they are expressly provided for. To determine the special nature of a rule, it is sometimes necessary to go beyond a single act and to also analyze related acts, i.e. to resort to a systematic interpretation. The VCLT contains the following provision (Art. 5): “The present Convention applies to any treaty which is the constituent instrument of an international organization and to any treaty adopted within an international organization without prejudice to any relevant rules of the organization.” The Vienna Convention, 1986 also contains a similar provision.
3. The interpretation of multilingual texts
The interpretation of multilingual texts has its own particularities to be addressed. The difficulties of interpretation of laws in one language and in a single legal system are well known. These difficulties are multiplied when the interpretation of texts is carried out multiple languages. First of all, each language has its own semantics and, more importantly, each language reflects the terminological and conceptual specificity of the different legal systems.
Matching the values of multilingual texts poses a particular problem of interpretation which is why there is a separate article of the 1969 and 1986 Vienna Conventions dedicated to this issue. The task is not only complicated but also has considerable practical value. Issues related to multilingual texts constantly arise not only in international but also in domestic practice. Often, this interpretation tends to have a ore political nature than legal significance. As a general rule, treaties are concluded in the anguage of the States parties to a treaty. If a State has two official languages, both of these may be present in the treaty. This explains, for example, the fact that treaties with Finland have a text both in Finnish and in Swedish. The texts in these languages as well as the texts in the language of the other party have the same legal force.
Methods of interpretation
A method of interpretation is a set of related techniques, the application of which makes it possible to obtain specific information about the content of the legal norm.
1. Legal interpretation
Legal interpretation sets out to clarify the legal characteristics of the international legal norms. It attempts to determine, for example, whether a norm is operating, if it is legitimate, the range of subjects affected by it, etc. By the very nature of the formation of international legal norms, legal interpretation is of paramount importance and is very complex compared to the same interpretation method for domestic law.
Legal interpretation is performed by analyzing legal concepts, categories and structures based on special legal expertise. This aspect is particularly important when it relates to countries with different legal systems. It is important to recall that the same legal terms may have different meanings and some terms and concepts that exist in the law of some States may be missing in the law of others. Legal interpretation derives from the fact that the harmonized will of the parties is recorded in norms not just in literary terms, but in specific legal terms, categories, and concepts. Often, a legal meaning of a term will not coincide with the common usage of that term. This fact should be considered when applying the rule that the treaty should be interpreted “in accordance with the ordinary meaning to be given to its terms.” This refers to the ordinary legal meaning.
2 Grammatical interpretation
Grammatical interpretation is the elucidation of the norm by the analysis of words, terms, and text with respect to etymology, vocabulary, syntax, and even the style of language. Since international legal norms are expressed in verbal form, they are logically subject to a grammatical analysis. The starting point of this analysis is the explanation of the meaning of words and terms used. It should be borne in mind that over time the semantics of words can vary so the words and terms should have the meaning given to them by the subjects that created the norms. Only if the subjects had agreed to give a different meaning to a term, could this new value be taken into account. Exceptions to this are special terms (technical, scientific, from the sphere of arts). These cannot be given a meaning other than that accepted in their relevant field.
The next stage of grammatical interpretation is devoted to identifying the meaning of sentences in general. At this stage, grammatical relations between the different parts of the sentence are being established and the sentence’s grammatical and semantic structure is determined. Conjunctions, punctuation and sentence consistency are of particular importance for a grammatical interpretation. At the same time we must not forget that the quality of legal acts is usually far from ideal, and, therefore, to solely focus on the words themselves is not recommended. Therefore, ambiguous expressions shall be construed in such a way as to avoid inconvenience and absurdity (interpretatio talis in ambiguis semper fienda est ut evitetur inconviniens et absurdum). Additional maxims are also worthy of attention. For instance, in unclear cases, the interpretation which results in the least uncertain meaning is to be favoured (semper in obscuris quod minimum est sequitur). And in situations that engender doubt, a broad interpretation is preferable (in dubiis benignoria praeferenda sunt).
3. Logical interpretation
Logical interpretation means analyzing the text of a norm on the basis of the laws and rulesof logic. The subject of the analysis is not words but concepts, designated by words and their relationship to each other. Obviously, the laws of logic are used when undertaking any interpretation, but in the application of a logical interpretation they are brought to the forefront. The logical interpretation method is especially productive when a norm can be interpreted in several ways. By logical analysis it is possible to prove the logical inconsistency of misinterpretation and to select the correct option.
4. Historical interpretation
Historical interpretation means analysis of the content of the norm in the light of the historical circumstances of its creation. These circumstances inevitably affect the will of the actors and the norms which embodies such a will. As a result, the analysis of these circumstances helps to establish the true purpose, meaning and content of the norms. Reference to the circumstances of the conclusion of a treaty is used as a supplementary means of interpretation in order to confirm a specific argument. The method of historical interpretation is used in international jurisprudence. The decision of
the International Court of Justice in the Arbitration case—which one (1991) states: “It is useful to recall, in order to assess the weight of that line of argument, the circumstances in which the Arbitration Agreement was drawn up”. Historical interpretation relies on supplementary means of interpretation such as preparatory materials and the circumstances of the conclusion of the treaty (VCLT, Art. 32). Preparatory materials include diplomatic correspondence between States, documents of negotiations and conferences, drafts of treaties, etc. These documents can help considerably in clarifying the meaning of the rules. Supplementary means may not be used to change the text of the norms. It is noteworthy to recall that subjects agreed to a specific version of a text, rather than any previous version. Also, States that acceded to the treaty at a later date are unaware of the preparatory materials and, therefore, these materials do not have legal significance for such States. Typically, historical interpretation is associated only with the past. But it cannot ignore the historical circumstances present at the time the norm was being created or their development trends. The value of historical parameters of interpretation is admitted by the lawyers: the best interpretation results from what precedes and from what follows (ex antecedentibus et consequentibus fit optima interpretatio). Interpretation in the context of existing historical conditions is associated with a political interpretation.
5. Political interpretation
Political interpretation means clarification of the content of the norm, taking into account the political conditions prevailing at the time of its implementation, as well as the policy of the participants. Without taking into account the political conditions, it is impossible to ensure the correct application of a norm. Interpretation is a policy tool actively used by States to forward their political interests. The greater the number of political conditions existing at the time of a treaty’s implementation, the greater its importance for political interpretation. Politics is valuable not only in terms of interpretation but also with respect to a treaty’s concrete form in which the will of the States is vested. Often, political treaties are formulated in vague terms which hide the differences between the parties, allowing each of them to interpret the treaty according to their own interests. Sometimes, a treaty contains language that does not reflect the will of the parties. The real meaning of the rules created in this way is known only to the participants. In other words, a formal agreement can be a cover of a real agreement, and the content of the latter can only be determined by analyzing the interaction of the actors to determine a coherent policy.
6. Teleological interpretation
Teleological interpretation means interpretation of the norms in light of their object and purpose. The value of this method of interpretation can be seen from the fact that it is reflected in the first paragraph of the article on interpretation of the VCLT. Teleological interpretation is part of a general method of interpretation, namely the systematic interpretation.
7. Systematic interpretation
Systematic interpretation implies the analysis of norms in relation to other norms of international law. This method is based on the general rule of interpretation as it appears in Article 31 of the 1969 Vienna Convention which provides as follows:
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 content and in the light of its object and purpose.
2. The context for the purpose of interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) Any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;
(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 relations between the parties. Therefore, to understand the content of a norm, it is necessary to consider it as belonging to a special or general system. A special system is the act containing the norm. Systematic interpretation is based on the fact that international legal norms are related to each other. An international legal instrument is a whole and is internally consistent, therefore, it is important to determine in which section of the act the norm is located, so as to determine if it is a general or special norm.
The next stage is to clarify the place of the act in the system of norms governing the relationship of subjects, including norms of general international law. Systematic interpretation involves the disclosure of the content of norms depending on the place they occupy in the concrete system, as well as the nature of their relations with other norms in the system. To harmonize some laws with others is the best way to interpret them (concordare leges legibus est optimus interpretandi modes). Modern international law is characterized by the rapid growth of both universal and regional norms. The problem of ensuring harmony among these standards has become more relevant than ever. But the possibility of being able to harmonize them at the creation stage is limited due to the intensity and dynamism of the lawmaking process. As a result, a significant part of the harmonization process must be carried out during the implementation phase of the norms. The main role in imparting this harmony belongs to the act of interpretation. The inconsistency of norms is not found in the analysis of the text but rather when they are applied in specific circumstances. International law is not the only regulatory system. The interpretation of its rules has acquired growing importance and must take into account other regulatory systems. Of these, a special place belongs to the political norms. With the increase of the role of political norms in the regulation of international relations, the value of their consideration in the interpretation of international law has also increased. Political norms are contained in joint declarations, communiqués and resolutions of international conferences.
8. Normative and causal interpretation
Normative interpretation refers to the clarification of the general content of the norms that apply to all cases falling under its operation. The main type of normative nterpretation is the official interpretation carried out by the actors. A unilateral interpretation may be normative in a different sense, for example, an interpretation by a State is normative and binding on all of its bodies and an interpretation by a supreme body of an international organization is normative and binding on its lower bodies. Causal interpretation refers to the interpretation of the meaning of a norm given by a subject in the process of applying the norm. The main purpose is to ensure the proper application of the norms in a particular case.
9. Normative recommendatory interpretation
The normative recommendatory interpretation is a special type of interpretation characterized by the fact that the general content of the norm is applied to all cases and thus differs from causal interpretation. Another feature is that it only has commendatory force. It is undertaken by international bodies and organizations and is essential for clarifying and developing the content of existing norms.