Approaches to Treaty Interpretation: With Special References to the ICJ Cases

The difficulty of interpretation lies in discovering the shared expectations, an analogous term often found in the private contract law. In the international sphere, the problem is complicated by a number of factors for a variety of reasons, including such that treaties are often a political substitute for rather than a legal expression of the agreement of the parties. The formula for construing treaties culminated in the adoption of Articles 31-33 in the Vienna Convention on the Law of Treaties 1969. These articles are generally accepted as the guiding principle with regard to treaty interpretation as they enumerate the main elements of text, context in light of the object and purpose of the treaty. The principles of effectiveness and of restrictive interpretation are the means to secure and preserve the integrity of agreements. States and courts tend to agree that the main purpose of treaty interpretation is to identify the intention of the draftsmen. However, views are divided when it comes to discover where to find this intention. The principle of effectiveness might be an appropriate answer to such inquiry. A perusal of the ICJ cases reveals that the attitude of the Court with respect to treaty interpretation has been predominantly textual in its approach in earlier days. However, with the advent of multilateral treaties and particularly of human rights treaties, the international tribunals began to apply the flexible principle of effectiveness rather than that of restrictive interpretation in favor of State sovereignty to resort to all available rules of construction. Considering the various approaches to interpretation of treaties incorporated in the Vienna Conventions and taking account of the relevant cases of the international tribunals, it might be more appropriate to inquire into, not how, but why we interpret treaties.