Evolutionary Interpretation and International Law

Geraldo Vidigal

doi:10.1093/jiel/jgaa035

Abstract

ABSTRACT Debates about the meaning of ‘evolutionary interpretation’ reveal the existence of two conflicting views. Some see evolutionary interpretation as an inevitable step in the ordinary process of applying fixed written language to changing reality. Others see it as a means for interpreters—and, crucially, adjudicators—to update the agreement being applied, infusing into the text the interpreter’s view of what would be a desirable development of the relevant provisions. Benefitting from the views expounded and decisions collected by the authors of Evolutionary Interpretation and International Law, edited by Georges Abi-Saab, Kenneth Keith, Gabrielle Marceau, and Clément Marquet (Hart 2020), this piece investigates two core questions that run through debates regarding evolutionary interpretation. First is the question of what is meant by evolutionary interpretation, whether an unavoidable step in the norm application process or a decision to develop obligations beyond their original scope. Second is the question of the distinctive role of adjudicators, i.e. of whether evolutionary interpretation is a tool used by adjudicators to exercise authority over the legal framework being applied, bypassing the constraints of the consent-based international rule-making system.

Highlights

The international lawyer and legal scholar faced with a question concerning the evolutionary interpretation of treaties in 2020 will find no better friend than Evolutionary Interpretation and International Law (Oxford, Hart 2020, xxi+368 p.)
Discussion of the key decisions of the International Court of Justice (ICJ) on the issue, rather than being contained in a specific chapter, pervades the analyses and considerations made by the various authors—an editorial decision that quietly affirms the unity of international law
While the World Trade Organization (WTO) adjudicators made an effort to argue that the specific elements to which they were applying the legal text were already envisaged by the parties when entering into the original agreement, the ICJ in Navigational Rights avowedly expanded the scope of activities covered by the provision, compared to what the parties could credibly have envisaged when entering into the agreement in 1858

Summary

INTRODUCTION

The international lawyer and legal scholar faced with a question concerning the evolutionary interpretation of treaties in 2020 will find no better friend than Evolutionary Interpretation and International Law (Oxford, Hart 2020, xxi+368 p.). Following a section containing transversal conceptual chapters, the book is organized around different sections on evolutionary interpretation as practiced by a range of actors in international law, including World Trade Organization (WTO) adjudicators, investment tribunals, human rights and criminal courts, the courts of the European Union, and relevant actors other than international adjudicators (national courts, treaty bodies, states, and international organizations). This collection, at once informative and insightful, is accurately described in the general summary as an ‘authoritative compendium’ on the topic of evolutionary interpretation, straddling the various subfields that have come to constitute international law.

TWO VIEWS OF EVOLUTIONARY INTERPRETATION

EVOLUTION AS MERE APPLICATION

STATE-DRIVEN EVOLUTION

ADJUDICATOR-DRIVEN UPDATES

CONCLUSION