Final Report: The Interpretative Practice of the PCIJ/ICJ

Abstract

The jurisprudence of the International Court of Justice (ICJ) at first sight epitomizes the orthodox approach to treaty interpretation, manifesting, in the words of one author, ‘une symbiose parfaite’ with the rules of interpretation that are codified in the Vienna Convention on the Law of Treaties (VCLT). The link between the practice of the World Court and the development of the rules of interpretation is clear in the work of the International Law Commission, which almost exclusively relied on the jurisprudence of the nascent ICJ and its predecessor, the Permanent Court of International Justice (PCIJ), as the basis upon which to elaborate the rules that later became Articles 31-33 of the VCLT. Indeed, in his Third Report, Sir Humphrey Waldock explicitly stated that draft articles on interpretation took inspiration from two sources, one of which was Sir Gerald Fitzmaurice’s 1957 article in the British Yearbook on the interpretative practice of the International Court. Yet, despite this close link between the World Court and the rules of the VCLT, understanding the interpretative practice of the Court is not as straightforward as it seems. The Court adopts a pragmatic approach to interpretation, which rejects a mechanistic approach to the rules of interpretation and admits the existence of interpretative principles that are not codified in the VCLT. This approach has provided the Court with a great degree of latitude, both in terms of the materials that it takes into account in the interpretative process and the weight that it gives to different elements of interpretation. A number of judgments of the Court (mainly on preliminary objections) that have been issued in the past few years – Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), Alleged Violations (Nicaragua v. Colombia), Delimitation of the Continental Shelf (Nicaragua v. Colombia), Immunities and Criminal Proceedings (Equatorial Guinea v. France), Jadhav (India v. Pakistan), Application of the International Convention on the Financing of Terrorism and the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation) – are of particular interest in relation to interpretation. This report will draw on the entire jurisprudence of the Court, but lay a particular emphasis on recent judgments where appropriate.