New Haven School, Textuality and Dynamic Interpretation

by Malgosia Fitzmaurice

I found comments of Richard Gardiner on the New Haven School very useful and indeed I ask myself frequently a question as to its continuing salience. I have recently researched the issue of dynamic interpretation of treaties in particular in relation to the practice of the European Court of Human Rights. The Tyrer and the Golder cases are generally treated as the leading cases illustrating the dynamic interpretation of treaties by the ECtHR.  In the latter case the (now defunct) Commssion said as follows: ‘[t]he overriding function of the Commission is to protect the rights of individuals and not to lay down as between States mutual obligations which are to be restrictively interpreted having regard to the sovereignty of those States. On the contrary the role of the Convention and the function of its interpretation is to make the protection of the individual effective’.

In broad brushstrokes it may be said that the main gist of the arguments supporting and promoting the interpretative methods adopted by the ECtHR is a special nature (subject-matter) of the European Convention on Human Rights. It was stated that the ECHR is more than a “common standard of achievement”, but imposes on the Parties a body of legal principles to which they have to conform, compliance with which is at times ensured by the machinery set up under the Convention. When the case is brought before the Court, the fundamental function of this machinery is to ascertain whether the national law conforms to the provisions of the Convention. It has been suggested that under the regime of the ECHR, the reliance upon classical tenets of international law such as nationality and reciprocity is unnecessary.  Although the Convention itself is drafted in the traditional form of a treaty, from the point of view of substance its “law transcends the traditional boundaries drawn between international law and domestic law. In short, the Convention is sui generis”, is neither international nor domestic although it comprises of both elements. The argument further is developed that the Convention’s law is not simply a law applied by the Court (and previously the Commission).  On the one hand, the Committee of Ministers of the Council of Europe also apply it, as well as, on the other hand the doctrinal (theoretical) background for the interpretative methods of the ECtHR was elucidated in many Judgements of the Court, as well as numerous publications.

My hypothesis is that such an approach to intepretation may have doctrinal roots in the New Haven School as it was stated:    

‘The main objective of an agreement is to project a common policy with the respect of future distribution of values and the purpose of  interpretation is to discern the shared expectations of the Parties, which may be adjusted by the interpretator to the goals of public order, including human dignity, which realisation the authors encourage. The authors formulated as follows the main objective of  interpretation:

 [t]he primary, distinctive goal stipulates that decision-makers undertake a disciplined, responsible effort to ascertain the genuine shared expectations of the particular parties to an agreement. This link with fundamental policy is clear: to defend the dignity of man is to respect his choices and not, save for overriding common interest, to impose the choices of others upon him.  

(M.McDougal, H.Laswell and J.C. Miller, The Interpretation of Agreements and World Public Order: Principles of Content and Procedure, (New Haven, London: Yale University Press, 1967).  See a very critical analysis of this theory: G.Fitzmaurice, “Vae Victis or Woe to the Negotiator? Your Treaty of Our Interpretation of It” (review essay), 65 AJIL (1971), pp. 358-73).

The establishment of a common order which is not only legal but based on common moral standards, is what the European Court of Human Rights is attempting to do in its jurisrudence. In my view, the importance of the New Haven Theory of interpretation is embodied, at least to a certain extent in the practice of the Court (which of course was subject to very ascerbic criticism of Fitzmaurice, in his Opinions during his term as a Judge of this Court).         


Treaty Interpretation: Reviewing the Rules

by Richard Gardiner

I am most grateful for this opportunity to thank Opinio Juris for hosting discussion of Treaty Interpretation and, in particular, Duncan Hollis for setting up the event.

The rules of treaty interpretation codified in the 1969 Vienna Convention on the Law of Treaties, Articles 31-33, have now been around for 40 years, but only in the last 15 has their use become quite widespread. Too much should not be expected of the Vienna rules. Their progenitors in the ILC deliberately avoided going beyond “trying to isolate and codify the comparatively few general principles which appear to constitute general rules for the interpretation of treaties.” (Commentary on draft articles).

Brief though the Vienna rules are compared with the comprehensive canons drawn up by others, their application in any given case can be a lengthy exercise. Just exploring the context requires considering the whole text of the treaty (and more); the rest of the general rule may require exploring practice, whole areas of international law, (and more); the preparatory work may be extensive (and there are other supplementary means as well); and language comparisons all too often throw up points of importance.

The only other show in town at the time of the 1969 Vienna Convention was the contrasting approach of the McDougal/New Haven School. Key features (greatly oversimplified) of this were: viewing an international agreement as a continuing process of communication and collaboration between the parties, examining context in a much broader sense than that defined in the Vienna rules, finding the shared expectations of commitment, and taking into account community values.

Review of this approach suggests several questions:

1) Has the “tragedy” which McDougal foresaw in the Vienna rules of an “insistent emphasis upon an impossible, conformity-imposing textuality” (61 AJIL 992 (1967)) proved justified?

2) Would such a tragedy have been averted by adoption of the system in his (and his collaborators’) massive work on interpretation of agreements?

3) Has recourse to the preparatory work of treaties been unduly curtailed?

4) Would the New Haven system have proved a scheme better fitted to the purpose?

Suggesting the answer no to each of these questions (in the case of the second one, on the basis that the tragedy has not occurred), there are nevertheless several issues which warrant another look. Picking out just a couple, the extent of preparatory work to be considered and how to use it remain difficult matters. Underlying the recent OJ blog about treaty provisions on piracy (One Solution to Piracy: Try Pirates in Kenya) was the issue whether admissible ILC material was limited to its very brief commentary or whether, at the other extreme, one should follow up the ILC’s acknowledged lifting of piracy provisions from the 1932 Harvard draft articles? Should preparatory work be investigated only to identify agreement among the negotiators or, particularly in the case of treaty provisions with a codifying aspect, to assess the state of international law leading up to the treaty and how this affected the negotiators?

The case of Witold Litwa v Poland in the ECtHR offers an example suggesting that excessive textuality and the supplementary role of preparatory work are not obstacles introduced by the Vienna rules into the interpretative process. The judgment in that case held that detention of someone who had been found drunk was permitted by the exception in the Human Rights Convention allowing detention of “alcoholics”. But did the Court give the Vienna rules a formalistic and unrealistic application to produce a meaning not limited to persons addicted to alcohol but just plain drunk? Was the Court really using the preparatory work to determine the meaning while pretending that the conclusion could be reached within the ambit of the general rule of interpretation?

One case is no basis for a general conclusion, but there are grounds to hope that the Vienna rules provide a useful framework, setting fair bounds to the investigation of meaning without insisting on “an impossible, conformity-imposing textuality”.

OUP/OJ Book Club, Richard Gardiner’s Treaty Interpretation

by Duncan Hollis

As I mentioned last week, we’re pleased to host Richard Gardiner (University College London) for the next three days for a discussion of his book, Treaty Interpretation.  In addition to comments by our regular contributors, we’ve invited several distinguished treaty experts to respond to his work, including Isabelle van Damme (Clare College, Cambridge), Malgosia Fitzmaurice (University of London, Queen Mary), and Jan Klabbers (Helsinki).  Some of our guest experts will be commenting on the book itself, others may choose to comment on the comments.  In either case, we’re looking forward to the discussion, and will, of course, welcome comments and questions from readers as well.