발전적 해석 시 당사국 공동의 의도: 그 역할 및 추정된 의도의 문제점

This paper aims to analyze the appropriateness of the use of “common intention of the parties” as a basis for evolutionary interpretation of treaties. Evolutionary interpretation of treaties refers to the notion that the meaning of treaty provision may develop or change over time. In other words, this approach considers that texts of a treaty can change their meaning in accordance with social and legal developments. According to the drafting history of the Vienna Convention on the Law of Treaties, the subjective school, which places great emphasis on the subjective intention of the parties, was finally omitted from the general rule of interpretation codified in Article 31 of the VCLT. Travaux préparatoires were placed as a supplementary means of interpretation. International courts and tribunals, however, continue to keep the intention of the parties, in particular the presumed intention of the parties, as a main standard for evolutionary interpretation. This gives rise to a need to examine how this intention is constructed. If this process is to stress the intention of the parties at the conclusion of a treaty, it could be tantamount to the return of intentional school. Therefore it is needed to thoroughly investigate the any possibility of misleading in terms of supplementary means of interpretation as a means for evolutionary interpretation.. A large number of case-laws on evolutionary interpretation sees the common intention of the parties as crucial standard. But in most cases the intention is presumed by the interpreter. After Namibia, the ICJ noted in Aegean Sea Continental Shelf that in using “a generic term … the presumption necessarily arises that its meaning was intended to follow the evolution of the law and to correspond with the meaning attached to the expression by the law in force at any given time. This paper made a distinction between each criteria for evolutionary interpretation, namely the use of generic term, the perpetuity of the treaty regime, and the original intent of the parties.. The process in which intention is considered necessarily gives rise to potential defects of evolutionary interpretation. Too much emphasis on the intention could lead to dependence upon the travaux préparatoires. Travaux préparatoires or circumstances of treaty conclusion, however, have always had a doubtful place in interpretation. In particular when the treaty concerned is multilateral, it is not easy for an interpreter to find the common intention of the parties, since there often exist latecomers who accedes to the treaty after its conclusion or entrance into force. And, above all, in most cases the parties do not provide for the intention for the evolutionary interpretation for each article. Therefore, more concrete and objective criteria is needed to presume the intention of the party. In this paper, it is the Article 31 of the VCLT, on which the construction of the intention of the parties should base. Some point out that too much emphasis on dynamic elements in interpretation of treaties could undermine the stability of treaty regime. As Dupuy points out, however, “stability presupposes adaptability, and the durability of treaty system requires considering change into interpretation of treaty texts, since every legal regime is subject to change”. The evolutionary interpretation of treaties is still unquestionably a developing concept and therefore its analysis is also fluid and for the time being awaiting some general and definite conclusions.