Milanovic on the ICJ’s Method of Treaty Interpretation

Readers may have noticed we didn’t have much to say about last week’s ICJ judgment in Costa Rica v. Nicaragua, which involved disputed water rights in the San Juan river (the full judgment is here; for those interested in a short version, the ICJ Registry’s summary is here).  Well, Marko Milanovic of EJIL: Talk! (and a former OJ guest blogger) has admirably filled in that gap with a lengthy and detailed post, analyzing the ICJ’s decision.  Marko focuses his analysis on the Court’s method of interpreting the rights Costa Rica has in the San Juan river under the 1858 Treaty of Limits, specifically a perpetual right of navigation con objectos de commercio (under the same treaty Nicaragua has sovereignty over the river itself, with the international border between the two states lying along the Costa Rican coast).  The two sides disputed what this con objectos de commercio phrase meant (i.e., Nicaragua saying it only involved rights “with the articles of commerce,” meaning it only covered trade in goods, while Costa Rica argued it involved rights for “the purposes of commerce” including trade in goods and trade in services).  Marko makes three interesting points about last week’s judgment:

First, and most important, is the Court’s approach to treaty interpretation. In that regard the Court gave short shrift to its long-standing dicta that restrictions on state sovereignty are not to be presumed lightly (paras. 47-48), and it also made several fascinating remarks on evolutionary treaty interpretation, to which I will devote the bulk of this post.

Second, the Court was quite ‘activist’ in basically creating bright line rules out of whole cloth from treaty provisions that were silent on the concrete matter at hand, but which the Court considered to have exhaustively regulated the relations between the parties. For instance, the Court held that Nicaragua may not impose any visa requirements on passengers on Costa Rican ships on the river, though it could have held instead that Nicaragua may not unjustifiably deny visas to such passengers, but that it could do so in some exceptional circumstances. This willingness to set bright line rules probably emanated from the Court’s desire to preclude further disputes between the parties and definitively settle the matter.

Third, there is the Court’s willingness the establish, with very little evidence, the existence of a bilateral customary rule binding the parties. Namely, it found that the riparian communities in Costa Rica, through the Costa Rican state, had a customary right to subsistence fishing from the river. The Court derived such a customary right solely from the absence of protest by Nicaragua to fishing by Costa Ricans, without in any way searching for opinio juris by Nicaragua and Costa Rica that this absence of protest derived not from the lack of practical significance of the very small amount of fishing involved, but from Nicaragua’s sense of legal obligation, its view that the riparian Costa Ricans had a right to fish as they did.

The remainder of Marko’s post focuses on the treaty interpretation question of what “commerce” means for purposes of Costa Rica’s rights.  In particular, Marko highlights the Court’s decision that the 2009 meaning of “commerce” controls, regardless of what that term meant to the parties in 1858 when they negotiated the rights in question

So, to sum up: because the contracting parties used a generic term, commerce, and created a perpetual regime, the meaning of the term ‘commerce’ is to be updated every time that the treaty is applied. It is its 2009, not its 1858, meaning that governs. 

But Marko’s got a fascinating critique of what he says is ICJ confusion on the difference between interpretation of a word and its construction, using the term “cruel” in the ICCPR to illustrate the issue:

Take, for example, Article 7 ICCPR which prohibits, inter alia, ‘cruel, inhuman or degrading treatment or punishment’. Similarly, see Art. 3 ECHR or the Eighth Amendment to the US Constitution, prohibiting cruel and unusual punishments. As stated above, interpretation is the activity of establishing the (linguistic or semantic, ordinary or plain) meaning of these words. The word ‘cruel’ thus means ‘disposed to inflict pain or suffering : devoid of humane feeling; causing or conducive to injury, grief, or pain.’ This semantic meaning of the word ‘cruel’ is the same today in 2009, as it was after the Second World War when the ECHR and the ICCPR were being drafted, as it was in 1789 when the US Bill of Rights was drafted. The meaning of the word has NOT changed with the passing of time.

The application of that meaning, however, its construction into rules governing particular situations, HAS changed. Thus, in 1945 the community of states might not have thought that subjecting juveniles to the death penalty was ‘cruel’; they think so – and we as a community of lawyers think so – today. Likewise, an execution by hanging in a public square might not have been thought of as ‘cruel’ in 1789, but it is thought of as ‘cruel’ in today’s America. This is not because the meaning of the word ‘cruel’ is different, or because its interpretation has changed; it is because our application of that meaning has been altered. The challenge of evolutionary interpretation, be it of a constitution or of a treaty, is not really one of interpretation, but one of construction, and of establishing the process through which a change in construction can happen yet remain broadly legitimate. Are we, for instance, in our application of the word ‘cruel’ in any way bound by what previous generations considered to be cruel? If so, to what extent? (One such process, comparatively widely used, is for a court to assess the growing consensus of the community bound by a particular instrument. Cf. the European Court’s approach in searching for a European consensus on particularly sensitive moral issues, and its relationship with the margin of appreciation doctrine.)

Great stuff — go read the rest of Marko’s post to get his take on how the ICJ drops the ball on accurately distinguishing between interpretation and construction with respect to “commerce” in this case. 

My question for Marko (and for the ICJ), however, lies in a slightly different direction.  How does this case square with Oil Platforms?  Indeed, in its 1996 judgment, the Court went out of its way to adopt a broad meaning of the same term at issue here–commerce (reading it to include not just trade in petroleum products, but the production and transportation facilities that produce such products).  Notwithstanding the ICJ Statute’s overt denial of stare decisis, I wonder whether or not this earlier, broad reading of commerce had any effects on the decision here?   Perhaps the linkage between the two cases is mitigated by the Court’s final Oil Platforms judgment in 2003, where, notwithstanding its broad reading of “commerce,” it found the territorial scope of protected commerce did not relate to the challenged U.S. actions?  Still, though, the legal realist in me can’t help but think at least some members of the Court might have felt bound to adopt a broad meaning of “commerce” in this case, not because they cared about questions of original intent vs. evolutionary treaty interpretation, so much as the possibility of being consistent with an earlier (and arguably more important) case’s reasoning?  Of course, the Court nowhere mentions Oil Platforms in its most recent judgment.  But I think the Court’s earlier construction of the exact same word in such an important and recent decision is all the more conspicuous by its absence?  Maybe that’s too cynical a view though — what do others think?