Resultados de la valoración del sistema de control interno

The consideration of object and purpose of a treaty on the same footing as text opened the door to an evolutive (or dynamic) approach to interpretation, since object and purpose may require that a term is interpreted evolutively. In this sense, teleological and evolutionary approaches go hand in hand. In short, evolutive interpretation means that a meaning given to a text changes over time. As the ICJ declared:

The Court must take into consideration the changes which have occurred in the supervening half-century, and its interpretation cannot remain unaffected by the subsequent development of law, through the Charter of the United Nations and by way of customary law. Moreover, an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation.¹²²

It follows that treaty provisions are to be interpreted in the context of modern developments and against the background of general international law of the day. While it is clear that the ICJ has resorted to this approach on several occasions, the roots of the evolutive approach lie in the interpretative practice

121 Paolo Palchetti, ‘Article 18 of the 1969 Vienna Convention: A Vague and Ineffective Obligation or a Useful Means of Strengthening Legal Cooperation?’ in Enzo Cannizzaro (ed), The Law of Treaties Beyond the Vienna Convention (OUP 2011) 32-33.

122 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16, para 53. The Court also adopted the evolutive approach to treaty interpretation in Aegean Sea Continental Shelf Case (Greece v Turkey) (Merits) [1978] ICJ Rep 3, para 77 (Holding that provisions of the 1928 Act were hardly ‘intended to have a fixed content regardless of the subsequent evolution of international law’); Case Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia) (Merits) [1997] ICJ Rep 7, para 112 (‘[T]he Treaty is not static and is open to adapt to emerging norms of international law’); Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua) (Merits) [2009] ICJ Rep 213, para 64 (‘[I]t is indeed in order to respect the parties’ common intention at the time the treaty was concluded, not to depart from it, that account should be taken of the meaning acquired by the terms in question upon each occasion on which the treaty is to be applied’).

of international human rights bodies characterised by an array of such interpretative techniques as principles of ‘autonomous concepts’, ‘living instrument’, ‘effectiveness’ and ‘practicality’ developed by the ECtHR;¹²³ the

‘responsiveness to African circumstances’ in the context the African Commission on Human and Peoples’ Rights;¹²⁴ the consideration of the ‘real situation’ propagated by the IACtHR;¹²⁵ and the ‘dynamic instrument doctrine’

in the case of the Committee against All Forms of Discrimination against Women.¹²⁶ These techniques embody general understanding of how the general rule of interpretation under the VCLT can be applied to further treaty’s object and purpose.

Evolutive interpretation has been as much criticised as it was defended.

While, for some, it could generate meanings that are a far cry from what states originally intended,¹²⁷ for others, it is in a strict accordance with article 31 VCLT and particularly relevant in the context of human rights obligations.¹²⁸ This thesis argues that inasmuch as international law stands as a guardian of the common interest, it is to be interpreted teleologically, dynamically and evolutively. This is clearly discernible in the practice of the ICJ, which, whilst following the static approach as a basic rule, increasingly invokes dynamic interpretation to terms whose content the parties expected would change through time.¹²⁹

123 Tyrer v United Kingdom (1978) 2 EHRR 1, para 31; Chassagnou and others v France (1999) 29 EHRR 615, para 100; Selmouni v France (1999) 29 EHRR 32, para 101; EB v France App no 43546/02 (ECtHR (GC) 22 January 2008) para 92; Saadi v United Kingdom App no 13229/03 (ECtHR (GC) 29 January 2008) para 55. For an academic discussion, see eg Daniel Rietiker,

‘The Principle of “Effectiveness” in the Recent Jurisprudence of the European Court of Human Rights: Its Different Dimensions and Its Consistency with Public International Law — No Need for the Concept of Treaty Sui Generis’ (2010) 79 Nord J Int’l L 245; Kanstantsin Dzehtsiarou,

‘European Consensus and the Evolutive Interpretation of the European Convention on Human Rights’ (2011) 12 German LJ 1730.

124 The Social-Economic Rights Action Centre and the Centre for Economic and Social Rights/Nigeria Decision on Communication No 155/96 (2001) AHRLR 60, para 68.

125 Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process Law (Advisory Opinion) (1999) IACtHR Series A no 16. See also Lucas Lixinski,

‘Treaty Interpretation by the Inter-American Court of Human Rights: Expansionism at the Service of the Unity of International Law’ (2010) 21 EJIL 585.

126 CEDAW ‘General Recommendation No 25: Temporary Special Measures’ (2004) UN Doc HRI/Gen/1/Rev.7, 282, para 3. See also Basak Cali, ‘Specialized Rules of Treaty Interpretation:

Human Rights’ in Duncan B Hollis (ed), The Oxford Guide to Treaties (OUP 2012) 541.

127 Ian Sinclair, The Vienna Convention on the Law of Treaties (2nd edn, Manchester UP 1984) 121; James Crawford, ‘A Consensualist Interpretation of Article 31(3) of the Vienna Convention on the Law of Treaties’ in Georg Nolte (ed), Treaties and Subsequent Practice (OUP 2013) 31.

128 Lucius Caflish and Antonio A Cancado Trinidade, ‘Les Conventions Americaine et Européenne des Droits de l’Homme et le Droit International General’ (2004) 108 RGDIP 5, 12;

Basak Cali, ‘Specialized Rules of Treaty Interpretation: Human Rights’ in Duncan B Hollis (ed), The Oxford Guide to Treaties (OUP 2012) 531. See also Detlev F Vagts, ‘Treaty Interpretation and the New Ways of Law Reading’ (1993) 4 EJIL 472, 499.

129 See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16, para 53 (The dynamic approach was applied to the phrase ‘sacred trust of civilization’); Aegean Sea Continental Shelf Case (Greece v Turkey) (Jurisdiction)

In the context of the ICCPR, the question hence arises as to what interpretation one should give priority to: the one that implies interpretation of treaties in the context of rules of international law in force at the time of the conclusion of the treaty (contemporaneous) or the one taking into account subsequent changes in law (evolutive). The interpretative practice of the HRC does not evidence any clear evolutionary approach. Respect for state sovereignty and consensual basis of international law seem to animate its jurisprudence. However, its recent case law evidences a more frequent recourse to evolutive interpretation by, for example, acknowledging the special nature of the ICCPR as a living instrument¹³⁰ and making references to external sources in broadening the scope of the Covenant’s provisions,¹³¹ albeit in a rather restrictive manner.

On a more theoretical level, there are several justifications for the special weight given to evolutive interpretation of the ICCPR. First of all, the ICCPR, by virtue of being a human rights treaty reflecting interests of the international community as a whole and concluded for an indefinite duration, implies a dynamic approach to interpretation as a means to ensure that human rights enshrined therein are protected effectively. Since the Covenant was adopted some half century ago, it is inconceivable that its provisions are static and not shaped by recent developments animating the fields of international law in general and human rights in particular. It should be an instrument of development and improvement rather than an ‘end-game treaty’,¹³² which froze the state of affairs that existed 50 years ago. Moreover, the generality and breadth of the Covenant’s terms as well as their non-reciprocal nature (in that they reflect obligations vis-à-vis individuals, not states inter partes) presupposes their interpretation in light of the present-day international consensus on their meaning and scope. The constitutional rationale bolsters these considerations. As has been previously posited, global constitutionalism is a species of new liberalism. Unlike classical international law being essentially reactive in nature and reflecting no common interest beyond the sum of interests of individual states, constitutionalisation of international law assumes the existence of common values embodied in the constitutional principles of the rule of law, human rights and democracy, which provide for a

[1978] ICJ Rep 3, para 77 (Evolutive interpretation was again applied to the formula ‘territorial status’); Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua) (Merits) [2009] ICJ Rep 213, para 66 (‘[W]here the parties have used generic terms in a treaty, the parties necessarily having been aware that the meaning of the terms was likely to evolve over time, and where the treaty has been entered into for a very long period or is “of continuing duration”, the parties must be presumed, as a general rule, to have intended those terms to have an evolving meaning’).

130 Judge v Canada (1988) 8 Selected Decisions of the Human Rights Committee 85, para 10.3

131 Sarma v Sri Lanka (2003) 8 Selected Decisions of the Human Rights Committee 210, para 9.3; Sharma v Nepal Comm no 1469/2006 (6 November 2008) UN Doc CCPR/C/94/D/1469/2006, para 7.4; Maodoui v Algeria Comm no 1495/2006 (1 December 2008) UN Doc CCPR/C/94/D/1495/2006, para 7.2.

132 Jared Wessel, ‘Relational Contract Theory and Treaty Interpretation: End-Game Treaties v Dynamic Interpretation’ (2004) 60 Ann Surv Am L 149, 149.

new source of legitimacy of international law (with the old ones being voluntarism and formalism). Such value-embeddedness of international law allows questioning existing legal norms that do not seem to fit into the value system any longer.¹³³ In this sense, the value approach presupposes interpretation of established rules in light of the aforementioned global constitutional principles, which states themselves recognised in a wide plurality of modern-day instruments, hard and soft. Such widely endorsed array of principles forms the basis for international consensus on issues that the international community finds essential for its existence and proper functioning. It is, thus, tempting to suggest that the principle of evolutive interpretation is a constitutional principle to the extent that it accounts for developments animating the formation of international consensus, independently of the intentions of individual states. Another constitutional feature of the evolutionary approach to interpretation is its unifying role: it unites various bodies of international law into coherent paradigm. And unity constitutes one of modi operandi of global constitutionalism.¹³⁴ Because regional human rights systems exemplify strong evolutionary trends in their interpretative techniques, it seems fair to suggest that interpretation of the ICCPR should accommodate those techniques to secure a unified approach to treaty interpretation in the field of human rights. The term ‘should’ in this connection does not indicate any de lege ferenda nature of the argument. It merely describes the unfortunate fact that the HRC and other subjects of interpretative community fail to fully employ the array of interpretative possibilities envisaged in the VCLT. This merits a closer inspection.

Evolutive interpretation envisages that terms of a treaty evolve by virtue of a changing context in which they operate, by virtue of treaty’s object and purpose and other developments, such as subsequent agreements, practice and overall legal framework. As to the latter, article 31(3)(c) (interpretation of treaties against the backdrop of general international law) is of a particular importance. It provides that ‘any relevant rules of international law applicable in the relations between the parties’ shall be taken into account in the interpretation of a treaty. That said, the central objective of the article is to ensure that a treaty is not interpreted in a vacuum but is considered as a part of a wider legal system. In other words, a treaty must be interpreted and applied in view of its relationship with its normative environment.

In fact, evolutive approach to interpretation serves as a nexus between article 31(3)(c) and article 31(1) VCLT (general rule of interpretation). Until very recently, article 31(3)(c) fell into such a disdain that, as Sands put it, it has

‘been expressly relied upon only very occasionally in judicial practice’, and had ‘attracted little academic comment’.¹³⁵ However, a renewed interest in this

133 Thomas Kleinlein, ‘Between Myths and Norms: Constructivist Constitutionalism and the Potential of Constitutional Principles in International Law’ (2012) 81 Nord J Int’l L 79, 89.

134 Surenda Bhandari, Global Constitutionalism and the Path of International Law (Brill Nijhoff 2016) 24.

135 Philippe Sands, ‘Treaty, Custom and the Cross-fertilization of International Law’ (1998) 1 Yale HR & Dev LJ 85, 95. Likewise, French noted that ‘as a feature of treaty interpretation it

article spearheaded by the ICJ in Oil Platforms¹³⁶ and followed by other international tribunals as well as legal commentators¹³⁷ and ultimately by the ILC itself¹³⁸ succinctly illustrates the transformation of international law from a horizontal, sovereignty-based system to a ‘comprehensive blueprint for social life’.¹³⁹ As some scholars contend, the very fact that ‘[t]his is the first time that the Court [in Oil Platforms] has expressly used this rule of interpretation’, indicates that it ‘must be assessed as an action in favour of the unity of the international legal system’¹⁴⁰ and, hence, speaks for the constitutionalisation of international law. It is thus possible to assume that article 31(3)(c) expresses a fundamental constitutional principle of treaty interpretation, namely that of systemic integration,¹⁴¹ which can be said to constitute a subspecies of the principle of teleological interpretation in general and the principle of evolutive interpretation in particular. The ILC defined the principle of systemic integration as ‘a guideline according to which treaties should be interpreted against the background of all the rules and principles of international law – in other words, international law understood as a system’.¹⁴²

has long since been marginalized and ignored’. Duncan French, ‘Treaty Interpretation and the Incorporation of Extraneous Legal Rules’ (2006) 55 ICLQ 281, 300.

136 Case Concerning Oil Platforms (Islamic Republic of Iran v United States of America) (Merits) [2003] ICJ Rep 161, para 41 (‘[U]nder the general rules of treaty interpretation, as reflected in the 1969 Vienna Convention on the Law of Treaties, interpretation must take into account “any relevant rules of international law applicable in the relations between the parties”

(Art. 31, para. 3 (c))’).

137 Campbell McLachlan, ‘The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention’ (2005) 54 ICLQ 279; Anja Lindroos and Michael Mehling, ‘Dispelling the Chimera of “Self-Contained Regimes”: International Law and the WTO’ (2005) 16 EJIL 857;

Alan Boyle, ‘Further Development of the Law of the Sea Convention: Mechanisms for Change’

(2005) 54 ICLQ 563; WTO, European Communities: Measures Affecting the Approval and Marketing of Biotech Products – Reports of the Panel (29 September 2006) WT/DS291/R, WT/DS292/R and WT/DS293/R; Ben McGrady, ‘Fragmentation of International Law or

“Systemic Integration” of Treaty Regimes: EC-Biotech Products and the Proper Interpretation of Article 31(3)(c) of the Vienna Convention on the Law of Treaties’ (2008) 42 JWT 589;

Philippe Sands and Jeffery Commission, ‘Treaty, Custom and Time:

Interpretation/Application?’ in Malgosia Fitzmaurice, Olufemi Elias and Panos Merkouris (eds), Treaty Interpretation and the Vienna Convention on the Law of Treaties: 30 Years on (Martinus Nijhoff 2010) 41ff; Panos Merkorious, Article 31(3)(c) VCLT and the Principle of Systemic Integration (Queen Mary Studies in International Law) (Brill/Nijhoff 2015).

138 ILC, ‘Report of the International Law Commission on the Work of its 58th Session’ (1 May - 9 June and 3 July - 11 August 2006) UN Doc A/61/10, 413-16; ILC, ‘Report of the Study Group on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’ (29 July 2005) UN Doc A/CN.4/L.676.

139 Christian Tomuschat, ‘International Law: Ensuring the Survival of Mankind on the Eve of a New Century’ (1999) 281 RCADI 21, 63.

140 Natalia Ochoa-Ruiz and Esther Salamanca-Aguado, ‘Exploring the Limits of International Law Relating to the Use of Force in Self-Defence’ (2005) 16 EJIL 499, 509.

141 See Campbell McLachlan, ‘The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention’ (2005) 54 ICLQ 279, 280.

142 ILC, ‘Report of the Study Group on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’ (29 July 2005) UN Doc A/CN.4/L.676, 27 (original emphasis).

Similarly, the ECtHR summarised the theory of systemic integration as follows:

[T]he Convention has to be interpreted in the light of the rules set out in the Vienna Convention […] and […] Article 31 § 3 (c) […] indicates that account is to be taken of ‘any relevant rules of international law applicable in the relations between the parties’. The Convention […] cannot be interpreted in a vacuum. The Court must be mindful of the Convention’s special character as a human rights treaty, and it must also take the relevant rules of international law into account […] The Convention should so far as possible be interpreted in harmony with other rules of international law of which it forms part […]. ¹⁴³

The question that comes next is what exactly is meant by ‘rules of international law’ and whether the other applicable international law is that in force at the time the treaty was framed or at the time when the treaty is applied. With regard to the latter, since the textual analysis of article 31(3)(c) reveals that the sub-paragraph in question does not contain temporal provision, it is possible to argue that any rule of international law is potentially applicable irrespective of the time of its conclusion.¹⁴⁴ This is indeed what the ILC called ‘inter-temporality’: meaning of a treaty provision may be affected by subsequent developments in, inter alia, customary law and general principles of law.¹⁴⁵ Moreover, article 31(3)(c) is located in the same subparagraph as articles 31(3)(a) and 31(3)(b), both being of evolutionary character by virtue of their qualifier ‘subsequent’. Ultimately, the general requirement to interpret treaty in good faith may require evolutionary approach. It can thus be logically coherent to suggest that also any subsequent rule of international law is potentially applicable.¹⁴⁶

Turning back to the first question, namely what are the rules of international law for the purposes of article 31(3)(c) VCLT, McLachlan observes that the formulation ‘rules of international law’ may refer to all the sources of international law, including other treaties, custom and general

143 Al-Adsani v the United Kingdom (GC) ECHR 2001-XI 761, para 55. See also Fogarty v the United Kingdom ECHR 2001-XI 762, para 35; McElhinney v Ireland ECHR 2001-XI 763, para 36.

144 Campbell McLachlan, ‘The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention’ (2005) 54 ICLQ 279, 291. This position is now dominant in contemporary literature. See eg Ulf Linderfalk, On the Interpretation of Treaties (Springer 2010) 178.

145 ILC, ‘Report of the International Law Commission on the Work of its 58th Session’ (1 May - 9 June and 3 July - 11 August 2006) UN Doc A/61/10, para 22. See also Erik Bjorge, The Evolutionary Interpretation of Treaties (OUP 2014) ch 4.

146 Sondre Torp Helmersen, ‘Evolutive Interpretation: Legality, Semantics and Distinctions’

(2013) 6 Eur J Leg Stud 127, 147. But see Malgosia Fitzmaurice, ‘Interpretation of Human Rights Treaties’ in Dinah Shelton (ed), The Oxford Handbook of International Human Rights Law (OUP 2013) 765 (Claiming that article 31(3)(c) ‘allows reference only to provisions which are binding on the parties to a particular dispute […] On this basis, reference to […] the provisions of treaties that are not yet in force, would be deemed to fall outside the provisions of Article 31(3)(c)’).

principles.¹⁴⁷ Illustratively, in as early as 1975, the ECtHR identified ‘general principles of law recognized by civilized nations’ as relevant to the interpretation of the term ‘civil rights’ in article 6 ECHR:

Article 31 para. 3 (c) of the Vienna Convention indicates that account is to be taken, together with the context, of ‘any relevant rules of international law applicable in the relations between the parties’. Among those rules are general principles of law and especially ‘general principles of law recognized by civilized nations’ (Article 38 para. 1(c) of the Statue of the International Court of Justice) […]

The principle whereby a civil claim must be capable of being submitted to a judge ranks as one of the universally ‘recognized’ fundamental principles of law; the same is true of the principle of international law which forbids the denial of justice. Article 6 para. 1 (art. 6-1) must be read in the light of these principles.¹⁴⁸

McLachlan notes, however, that the reference must be to rules of law, to the exclusion of broader principles or considerations.¹⁴⁹ It follows that soft law seems to automatically fall out of the definition. Be that as it may, since the doctrine of evolutive interpretation is conceptually independent from article 31(3)(c), ‘the range of relevant arguments to determine the evolution of an evolving term will often be much broader than just the “rules of international law” that article 31(3)(c) mentions’.¹⁵⁰ It means that rules that are not formally

McLachlan notes, however, that the reference must be to rules of law, to the exclusion of broader principles or considerations.¹⁴⁹ It follows that soft law seems to automatically fall out of the definition. Be that as it may, since the doctrine of evolutive interpretation is conceptually independent from article 31(3)(c), ‘the range of relevant arguments to determine the evolution of an evolving term will often be much broader than just the “rules of international law” that article 31(3)(c) mentions’.¹⁵⁰ It means that rules that are not formally