1. Introduction
It is the settled case law of the International Court of Justice (Court or ICJ) that the general rule of treaty interpretation in the Vienna Convention on the Law of Treaties (Convention or VCLT)Footnote 1 is demonstrative of customary international law.Footnote 2 And as an expression of the ‘customary rule of interpretation’, Article 31 of the VCLT is applicable to constituent instruments of all international organizations (IOs),Footnote 3 irrespective of the date of the instrument's signing.Footnote 4 Indeed, the Court confirms that ‘[f]rom a formal standpoint, the constituent instruments of international organizations are multilateral treaties, to which well-established rules of treaty interpretation apply’.Footnote 5 But, the ICJ also states that:
[T]he constituent instruments of international organizations are also treaties of a particular type; their object is to create new subjects of law endowed with a certain autonomy, to which the parties entrust the task of realizing common goals. Such treaties can raise specific problems of interpretation owing, inter alia, to their character which is conventional and at the same time institutional; the very nature of the organization created, the objectives which have been assigned to it by its founders, the imperatives associated with the effective performance of its functions, as well as its own practice, are all elements which may deserve special attention when the time comes to interpret these constituent instruments.Footnote 6
In this way, the ICJ implies that the ‘formal standpoint’ of the VCLT does not exhaust the particular interpretative considerations of constituent instruments as treaties capable of both creating and controlling a non-state entity with international legal personality. Although the Court draws ‘special attention’ to the interpretative problems of constituent instruments, it does not go on to specify how constituent instrument interpretation should be practiced in a way that diverges from, or develops upon, rules of interpretation applicable to other treaties. The intention of this article, then, is to explore this neglected ambiguity and to examine the ICJ's case law in order to identify an interpretative approach to the constituent instruments of IOs which could be said to informally supplement, or modulate, the VCLT rule. To do so, this article is largely dependent on the ICJ's Advisory Opinions that respond to direct requests for constituent instrument interpretation by IOs. There have only been seven such requests. On five occasions an Advisory Opinion of the Court was sought on the meaning of the UN Charter.Footnote 7 And, on one-off occasions, on the Constitution of the World Health Organization (WHO)Footnote 8 and the Convention of the Inter-Governmental Maritime Consultative Organization (which in 1982 became the International Maritime Organization).Footnote 9 However, this article will also address cases in which the Court has been called upon to interpret the constituent instrument of an IO incidental to a case brought between state parties or an Advisory Opinion requested on a question of general international law. Such cases register when the Court exercises Article 34(3) of its StatuteFootnote 10 which requires the Court to notify an IO (and the Court's Rules allow the IO to submit written observations)Footnote 11 when a question arises of interpretation of its constituent instrument.Footnote 12 Notwithstanding that IOs regularly forego this opportunity to interpret their constituent instrument before the Court,Footnote 13 the ICJ has provided an interpretation of a constituent instrument in two cases, concerning the Convention on International Civil Aviation (known as the Chicago Convention), the constituent instrument of the International Civil Aviation Organization (ICAO),Footnote 14 and the International Convention for the Regulation of Whaling, which is the constituent instrument of the International Whaling Commission (IWC).Footnote 15 Furthermore, a sequence of three Advisory Opinions concerning the situation in South-West Africa (arising from South Africa's mandate administration of Namibia) are cause for incidental yet influential interpretation of the UN Charter.Footnote 16
Following this introductory section (Section 1), this article examines the VCLT on the one hand, and details the ICJ's demonstrated approach on the other. This analysis is divided into three sections in terms of the role of text (Section 2); the role of the institution (Section 3); and the role of constituent instrument interpreters (Section 4). It will be argued that the ICJ's case law is informed by a series of propositions that should be considered alongside, or in adaptation of, the adjudicatory application of the VCLT. In conclusion (Section 5), it is suggested that to the extent the ICJ's approach is divergent from the VCLT, this in fact demonstrates a more efficient and effective approach to interpretation by the Court, corresponding to the particular character of constituent instruments.
2. The role of text
The role of text is at the forefront of the VCLT, but the Convention is notable for not establishing a hierarchy between the first three paragraphs of Article 31 that comprise the general rule of interpretation. They are interlinked but ‘represent a logical progression, nothing more’.Footnote 17 The reference to ‘rule’ singular, not ‘rules’ plural, demonstrates the intention that the paragraphs act in concert, not separately or sequentially.Footnote 18 It is only the first limb of Article 31, paragraph 1 that is textual, relying upon ‘the ordinary meaning to be given to the terms of the treaty’. Nevertheless, it is this text that is presumed to represent a ‘real’Footnote 19 or ‘authentic’Footnote 20 expression of meaning by the parties. To the extent that a constituent instrument is ‘left consciously vague to permit initial agreement or to permit change as conditions warrant’,Footnote 21 this effectively reflects a decision by the parties that, if further precision is found necessary, then later textual interpretation is envisaged. However, the ICJ's interpretation of constituent instruments can be seen to place greater emphasis on the role of text than that accorded by the Convention. The Court overlays three particular propositions that respond to the need for certainty of text in the effective functioning of IOs: first, the assumption that sufficiently clear text is conclusive; secondly, that text cannot be nullified by interpretation; and thirdly, that working documents offer only auxiliary interpretation.
2.1 Sufficiently clear text is conclusive
This first proposition is the cornerstone of the ICJ's approach and was applied in the first Advisory Opinion on constituent instruments, First Admissions, in response to a request by the UN General AssemblyFootnote 22 to interpret Article 4(1) of the UN Charter.Footnote 23 Article 4 enables members of the General Assembly and the Security Council to vote on the candidacy of a state for membership in the UN. In doing so, the Assembly asked whether a member was ‘juridically entitled to make its consent to the admission dependent on conditions not expressly provided by paragraph 1 of the said Article?’Footnote 24 However, the request goes on to address the concern of a ‘particular’ voting practice, questioning whether a member can ‘subject its affirmative vote to the additional condition that other States be admitted to membership in the United Nations together with that State?’Footnote 25
The Court's Opinion begins by stating that it will confine itself to the public ‘statements made by a Member concerning the vote it proposes to give’ in attributing voting considerations to them.Footnote 26 Indeed, the Court reframes the General Assembly's question as: ‘[A]re the conditions stated in paragraph 1 of Article 4 exhaustive in character so that Members are legally deprived from making admission dependent on any other factors?’Footnote 27 The Court directs itself to ‘in the first place consider the text’ of Article 4(1).Footnote 28 In this way, unlike the Convention, the text takes priority in the Court's sequential approach. The ICJ notes that the French and English versions of the text under consideration have the same meaning, and the text is found to ‘clearly demonstrate the intention of its authors’ to fix a legal rule. Footnote 29 The Court finds that, ‘[t]he natural meaning of the words used leads to the conclusion that these conditions constitute an exhaustive enumeration and are not merely stated by way of guidance or example.’Footnote 30
The ICJ rejects a number of arguments which invite it to go beyond the conclusive meaning of the text itself, including by reference to the preparatory work on this Article. Noting a doctrine attributed to the Permanent Court of International Justice, ‘according to which there is no occasion to resort to the preparatory work if the text of a convention is sufficiently clear in itself’,Footnote 31 the Court considers Article 4(1) ‘sufficiently clear’ to render reference to the travaux superfluous. Contingent voting practices were consequently found to be ‘incompatible with the letter and spirit of Article 4 of the Charter’.Footnote 32 For good measure, the Court states that, on the one hand, the ‘political character’ of the General Assembly and the Security Council ‘cannot release [them] from the observance of the treaty provisions established’Footnote 33 but on the other, any factor connected ‘in good faith’ with Article 4(1) can be taken into account by a member. This seems intended to refute the argument, presented by the Court's principal joint dissenting opinion,Footnote 34 that no rule of international law exists so that once the conditions of Article 4(1) are met, a member is compelled to vote affirmatively.Footnote 35 The dissenting opinion therefore considers the conditions stated by Article 4(1) to be essential but not necessarily sufficient, and bolsters this with an extensive consideration of the preparatory work, which the majority had dispensed with. That the dissenting opinion persists in deeming the vote in an organ of the UN a ‘political decision’ suggests some confusion as to the categorization of member acts within an IO. This distinction is taken up when considering the role of practice in Section 3.2, below.
The First Admissions Opinion therefore sets out the text of a constituent instrument as having interpretative primacy, and the Court's approach to be generally resistant to undermining ‘sufficiently clear’ text with elaborative additional means of interpretation.
2.2 The text cannot be nullified
The Court's approach to interpreting text in context can be said to confirm as customary the reference in Article 31(1) of the Convention to the use of ‘context’ as a process of juxtaposing and reconciling interoperating text. However, while Article 31(2) defines ‘context’ to mean the entire ‘text’ including ‘preamble’ and ‘annexes’ plus any associated agreements or instruments, the ICJ sets forth its own proposition governing contextualization so as to prohibit interpretation that nullifies the examined text. First Admissions and Second Admissions demonstrate this with regards to the UN Charter, as does ICAO Council Appeal concerning the Chicago Convention.
To avoid nullifying the text, in First Admissions the Court finds that Article 4(2)Footnote 36 bars an interpretation of paragraph 1 as representing only ‘an indispensable minimum’ that could be supplemented by ‘political considerations’. The text under interpretation cannot be isolated from its context. Meaning must be found that is consistent with other texts with which the text under interpretation interoperates.Footnote 37 And, in riposte to the argument that Article 4(1) of the UN Charter is a statement of minimum, not definitive, membership criteria, the Court states that ‘[t]he provision would lose its significance and weight, if other conditions, unconnected with those laid down, could be demanded’; this is impermissible.Footnote 38
Second Admissions asks the Court to opineFootnote 39 on the meaning of the second paragraph of Article 4 that had been brought to bear on the first paragraph in First Admissions. The question to resolve was whether the reference to ‘recommendation’ by the Security Council was consistent with a resolution of the Council that either lacked a majority or was voted against by a permanent member. The Court reframes this as ‘whether the General Assembly can make a decision to admit a State when the Security Council has transmitted no recommendation to it’.Footnote 40 For the Court, Article 4(2) leaves it with ‘no doubt as to the meaning of this text.’ The consequence of clarity of the text, precluding reference to working documents, is examined in Section 2.3, below. Admission to the UN, the Court finds, has two preconditions, namely the ‘recommendation’ of the Security Council and ‘decision’ by the General Assembly, but that the former is the ‘condition precedent’ to the latter.Footnote 41
The Court sustains this interpretation using two further interpretative approaches: practice and context. Practice is considered in Section 3, below. Context is necessary to render ‘recommendation’ as ‘favourable recommendation’. The Court turns to the other provisions of the Charter with which Article 4(2) interoperates to refute an interpretation of ‘recommendation’ as ‘favourable or unfavourable recommendation’. The Court finds that:
[t]o hold that the General Assembly has power to admit a State to membership in the absence of a recommendation of the Security Council would be to deprive the Security Council of an important power which has been entrusted to it by the Charter. It would almost nullify the role of the Security Council in the exercise of one of the essential functions of the Organization.Footnote 42
Thereby the role of the Security Council in Article 4(2) must be presumed to be significant and cannot be diminished by interpretation.
Under Article 84 of the Chicago Convention, the Council of the ICAO is competent to decide disputes arising between state parties concerning the Convention's ‘interpretation or application’,Footnote 43 such decisions being appealable to either an ad hoc arbitral tribunal or the ICJ. In ICAO Council Appeal, India appealed the Council's decision to assume jurisdiction over allegations of unlawful airspace closure brought by Pakistan, asserting that it had suspended application of the Convention towards Pakistan (and with it the Convention's dispute resolution clause).Footnote 44 Whilst India argued that the ICJ had competence but that the Council did not, Pakistan argued the opposite, contending ‘that India is precluded from affirming the competence of the Court’, relying on an argument that the Convention (and hence the basis for appeal to the ICJ) was not in force.Footnote 45 The Court was unpersuaded by Pakistan's argument, noting both that a bilateral suspension of a multilateral Convention is ‘not the same thing as saying that they are not in force in the definitive sense, or even that they have wholly ceased to be in force’Footnote 46 bilaterally and that ‘[p]arties must be free to invoke jurisdictional clauses. . . without being made to run the risk of destroying their case on the merits by means of that process itself.’Footnote 47 In the alternative, Pakistan also argued that the ICJ lacked jurisdiction, asserting that only decisions by the Council on the merits of a dispute, not jurisdiction, were appealable under the Convention.Footnote 48 The Court disagreed, noting that ‘[n]ot only do issues of jurisdiction involve questions of law. . . They may, in the context of such an entity as ICAO, create precedent affecting the position and interests of a large number of States.’Footnote 49 And on India's assertion that the Convention did not govern relations between it and Pakistan, robbing the Council of jurisdiction, the Court found this unacceptable since it was ‘tantamount to opening the way to a wholesale nullification of the practical value of jurisdictional clauses’.Footnote 50 The ICJ thereby rejected all arguments aimed at disabling or diminishing the effectiveness of the ICAO's dispute resolution clause as ‘destructive of the whole object of adjudicability’.Footnote 51
This resulting proposition ‘that all provisions of a treaty must be supposed to have been intended to have significance and be necessary to convey the intended meaning’Footnote 52 has a regulatory effect on the interpretative possibilities of the text under consideration.
2.3 Working documents afford auxiliary interpretation
Article 32 of the Vienna Convention renders the role of the preparatory work of the treaty somewhat uncertain and unsatisfactory.Footnote 53 Article 31 is to be applied before Article 32. Article 31 uses ‘shall’ whereas Article 32 uses ‘may’ and is entitled ‘Supplementary means of interpretation’. So, at first sight it would seem that the travaux préparatoires can only be brought to bear if other interpretative approaches are inadequate. But as Article 32 can be invoked not only to settle a lack of clarity – because an interpretation is ‘ambiguous’, ‘obscure’, ‘absurd’ or ‘unreasonable’ – but also to ‘confirm’ an otherwise clear meaning already afforded an interpretation using Article 31, there would in fact seem to be few circumstances in which the travaux cannot be resorted to if so desired. But, when it had the opportunity in Nuclear Weapons, the Court did not affirm Article 32 of the Convention to be an expression of a customary rule of interpretation for constituent instruments.Footnote 54 This reticence would be consistent with the way in which the ICJ resorts to the travaux of constituent instruments as an unambiguously auxiliary means of interpretation, to the point – in certain circumstances – of disallowing recourse to them altogether.
In the First Admissions Advisory Opinion, the ICJ stated that ‘[t]he Court considers the text sufficiently clear; consequently. . . there is no occasion to resort to preparatory work’.Footnote 55 Sufficiently clear text frees the interpreter from the ‘occasion’ of referring to preparatory materials. However, in Second Admissions, the Court went further in determining the nature of this ‘occasion’. In Second Admissions, the Court underlines the primacy of text. The text left the Court in ‘no doubt’ as to the meaning.Footnote 56 But rather than this resulting in the travaux merely being unnecessary, it was instead excluded. The Court stated, ‘it is not permissible, in this case, to resort to the travaux préparatoires’.Footnote 57 Bluntly, it said that ‘[i]f the relevant words in their natural and ordinary meaning make sense in their context, that is the end of the matter’.Footnote 58
This proposition is consistent with Maritime Safety Committee. The Court was asked to determine whether the Committee was constituted in accordance with the Convention establishing the Inter-Governmental Maritime Consultative Organization.Footnote 59 To do so was effectively to determine the meaning of ‘largest ship-owning nations’ entitled to a place on the Committee.Footnote 60 The examined term admitted divergent meanings, based upon either gross tonnage registered to flag states or the nationality of the beneficial ownership. Footnote 61 Liberia and Panama – excluded from the composition of the Committee under consideration – were leading in the category of the former, but lagging in the later. This was complicated by references in the same provision to Committee members being ‘elected’ and weight being afforded to ‘those nations having an important interest in maritime safety’.Footnote 62 It was thereby permissible – which is to say necessary – to consider the travaux. This the Court did, looking at no less than five drafts of the relevant Article. Essentially, it found clarity of intention in previous versions of the provision that render ‘owning substantial amounts of merchant shipping’ and having an ‘important interest in maritime safety’ as synonymous with being amongst the ‘largest ship-owning nations’ by registration, not further qualifying conditions for membership. Footnote 63 And throughout the drafting the Court observed a ‘determination to retain the predominance of the largest ship-owing nations’ on the Committee, in such terms as to render ‘election’ so as to ‘exclude the possibility of an interpretation which would authorize the Assembly to refuse membership on the Committee to any one or more of the eight largest ship-owning nations’.Footnote 64
Thus, only if the text bears an uncertain or paradoxical meaning is it ‘permissible’ to resort to the working documents. It is this disallowed recourse to the travaux (if other means of interpretation afford a compelling meaning) that has no counterpart in Article 32 of the Convention. But it strongly suggests that the occasion to resort to working documents is to be based upon necessity (and cannot merely be confirmatory). In this way the Court frees the interpreter – when faced with sufficiently clear text – from a laborious review of the working documents. This will be a relief to those who broadly agree with one commentator's view of travaux: ‘Their investigation is time-consuming, their usefulness often being marginal and very seldom decisive.’Footnote 65
3. Role of the institution
It has been said that, ‘[h]owever precise a text appears to be, the way in which it is actually applied by the parties is usually a good indication of what they understand it to mean’.Footnote 66 It seems that most of all, the ICJ considers this role of the ‘very nature of the organization’Footnote 67 created by a constituent instrument to distinguish the interpretation process of a constituent instrument from other treaties. However, although Article 31(1)(b) of the VCLT refers to the influence of ‘any subsequent practice in the application of the treaty’ this is to be used so far as it ‘establishes the agreement of the parties regarding its interpretation’. Nevertheless, the Court assumes institutional practice to demonstrate the intentions of members, and places great reliance on the practice of the institution as objective evidence of what a constituent means in circumstances when ‘words’ have been made into ‘deeds’.Footnote 68 In so doing, the role of practice as demonstrative of intended meaning leads to three connected propositions. First, that consistent practice precludes contrivance. Secondly, that practice, which must be consistent, need not be unanimous. And, thirdly, that consistent institutional practice is determinative.
3.1 Consistent practice precludes contrived interpretation
It is suggested that to be influential, treaty practice needs to be ‘consistent’ and be ‘common to, or accepted, expressly or tacitly, by both or all parties’.Footnote 69 It should be ‘repeated’ and ‘in pursuance of the treaty’.Footnote 70 In this way interpretative practice resembles customary international law – a general practice that is accepted as lawFootnote 71 – transposed into an institutional setting. There must be acceptance (or at least ‘concordant conduct’Footnote 72 ) in that at least the interpretative practice is not successfully institutionally challenged (either by the IO, another organ of the IO or a member) and can be ‘presumed to be intra vires and may be cited as authoritative the next time a similar issue arises’.Footnote 73 Therefore, to qualify as practice in the application of the constituent instrument, the practice must be repeated, or at least consistent, and accepted as presumably intra vires.
Crucially, in Second Admissions the Court found an interpretation, which avoided nullification of Article 4(2) to be consistent with practice. The referenced practice included the Rules of Procedure of the General Assembly under which the Assembly could deliberate upon an application for membership only ‘if the Security Council recommends the applicant State for membership’.Footnote 74
In Nuclear Weapons, the Court was requested by the annual meeting of the member states of the WHOFootnote 75 to respond to a question which was effectively, ‘would the use of nuclear weapons by a State in war or other armed conflict be a breach of its obligations under international law’?Footnote 76 However, the request framed this question with parenthetical statements that appear intended to establish the relevance of the Advisory Opinion sought to the activities of the WHO. The question is prefaced with, ‘[i]n view of the health and environmental effects’ and ends, ‘including the WHO Constitution’. Footnote 77 Such relevance is of course a precondition under Article 96(2) of the UN Charter which limits ‘specialized agencies. . . so authorized by the General Assembly’ to requesting Advisory Opinions on ‘legal questions arising within the scope of their activities’. Therefore, preliminarily, it was necessary for the Court to ‘delineate the field of activity or area of competence’ of the WHO by referring ‘to the relevant rules of the organization and, in the first place, to its constitution’.Footnote 78 It is here in this Opinion that the ICJ goes on to juxtapose the ‘special characteristics’ of a constituent instrument with other treaties, cited in the introduction.
In examining the text and context of the WHO Constitution, the Court notes that whilst the constituent instrument sets out at length the functions attributed to the WHO, none such ‘expressly refers to the legality of any activity hazardous to health; and none of the functions of the WHO is dependent upon the legality of the situations upon which it must act’.Footnote 79 The Court considers it decisive that the work of the WHO, which is to deal with effects on health, including the effects of the use of nuclear weapons, is not with reference to the legality or illegality of such effects. The Court considers that ‘[w]hatever those effects might be, the competence of the WHO to deal with them is not dependent on the legality of the acts that caused them’.Footnote 80
But the Court is nevertheless mindful that, following its own jurisprudence, IOs can possess ‘implied powers’ not expressly stated in the constituent instrument.Footnote 81 The Court emphasizes that the UN specialized agencies are to be considered confined by the principle of speciality to sectoral powers which ‘cannot encroach on the responsibilities of other parts of the United Nations system’.Footnote 82 It would thus appear that this teleological interpretation is dispositive. But, crucially, whereas in Reparation for Injuries practice confirms the presence of an implied power, in Nuclear Weapons it is practice that confirms an absence of an implied power regarding the legality of nuclear weapons. The request for an Advisory Opinion had failed to identify anything ‘in the nature of a practice of the WHO in regard to the legality of the threat or use of nuclear weapons’.Footnote 83 Practice (or the absence of practice) is dispositive. The Court finds that no report or resolution of the WHO deals with the legality (as opposed to the effects) of the use of nuclear weapons except the resolution – hedged by novel references suggesting contingency to the WHO's responsibilities – requesting an Advisory Opinion itself. The Court essentially finds the resolution to be a contrivance, precluded by the WHO's own institutional practice.
3.2 To be consistent, practice need not be unanimous
Can institutional practice be said to be defective if the output of an organ represents a majority, but not a unanimous, decision by members? To some, practice adopted without unanimity is concerning.Footnote 84 Others go further and find that ‘divisive practice . . . cannot have the same force as one generally accepted’.Footnote 85 It has been said that in considering the resolution of the WHO's World Health Assembly that forms the basis of Nuclear Weapons, the ICJ weighed a lack of unanimity against the resolution establishing an interpretative practice.Footnote 86 The Court notes the fact that the resolution was ‘adopted, not without opposition’ and that it ‘could not be taken to amount on its own to a practice establishing an agreement between the members of the Organization to interpret its Constitution as empowering it to address the question of the legality of the use of nuclear weapons’.Footnote 87
Whaling in the Antarctic appears to weigh a lack of unanimity in the same way. Whilst the Court was adjudging Australia's allegations that Japan's practice of permitting ‘scientific research’ whaling under the International Whaling ConventionFootnote 88 was abusive, attention was drawn to the resolutions of the IWC as informing a correct interpretation of the research exemption.Footnote 89 Australia contended that such resolutions showed an interpretative practice so as to permit whaling only when non-lethal scientific research was unavailable.Footnote 90 But the Court notes that ‘many IWC resolutions were adopted without the support of all States parties to the Convention and, in particular, without the concurrence of Japan.’Footnote 91 For this reason, such resolutions are held to be undemonstrative of subsequent interpretative agreement or practice.Footnote 92
Yet, in both cases, the Court has in fact framed these statements in such a way as to suggest that the role of unanimity is more limited than it would first appear. The Court's comment that the resolution requesting the Nuclear Weapons Advisory Opinion was passed ‘not without opposition’, has the appearance of parenthetical rather than dispositive analysis. The reference is not enlarged upon, and in the preceding paragraph consideration is given to all of the reports and resolutions referred to in the preamble to the request. The emphasis the Court draws from this recital is not the extent to which such resolutions were or were not concluded unanimously (this goes unmentioned) but that at no time, prior to the request to the Court, had a resolution of the WHO referred to the legality of nuclear weapons.
Similarly, when the Court comments on the failure of the IWC's resolutions to form a body of interpretive practice, it does so having already noted that under Article VI of the International Whaling Convention,Footnote 93 the IWC only has a recommendatory authority, and ‘[t]hese recommendations, which take the form of resolutions, are not binding’.Footnote 94
Therefore, neither Nuclear Weapons nor Whaling in the Antarctic establishes unanimity as a precondition for a consistent practice constituting persuasive interpretation. Instead, the Court leaves open the possibility that an isolated but unanimous binding outcome could be formative of practice, as could consistent unanimous, but otherwise non-binding outcomes. What concerns the Court is not that the WHO's otherwise binding resolution lacks unanimity but that, in isolation (‘on its own’), the divided resolution is undemonstrative of a consistent intra vires practice. Likewise, what concerns the Court is that only consistent unanimity could potentially transform the non-binding recommendatory resolutions of the IWC into a body of persuasive interpretative practice. It is argued that this is because, even if outvoted in a (binding) organ of an organization, ‘the Member concerned had agreed, by implication and at the time it became a party to the constitutive treaty, to accept the decision as reflecting the will of the organization, even though it disagreed with it at the time it was made’.Footnote 95
I argue however that it is not that a member is bound by the ‘will’ of an organization that demonstrates state practice. Instead the better view follows from the fact that the international legal personality of an IO is indivisible.Footnote 96 Whilst the General Assembly and the Security Council are separate principal organs of the UN, they are not separate legal entities. As the ICJ has noted, the ‘political character’Footnote 97 of the organs does not remove them from the governing effect of the UN Charter. States participate in the Assembly and Council not as states per se, but as members of the UN. As cited to in Effect of Awards and Certain Expenses, the resultant intra vires practice is attributable to the UN not the members. If it were otherwise, then IOs would be incapable of an autonomous identityFootnote 98 and an IO would be at best an agent for its members.Footnote 99
3.3 Consistent institutional practice is conclusive
The degree to which the ICJ is ready to consider the intra vires practice – rules, resolutions and operations – of organizations and its organs as establishing the agreement of the membership regarding interpretation of the constituent instrument is instructive. The Court returns, time after time, to consistent institutional practice of IOs as affording a persuasive interpretation, unless and until such time as the practice is lawfully revoked and replaced by another consistent practice. See Section 4.1, below, for an examination of practice as interpretation, until institutionally overruled.
In Reparations for Injuries, a practice considered relevant is that of the UN finding it necessary ‘to entrust its agents with important missions to be performed in disturbed parts of the world’.Footnote 100 And thereby, ‘[b]oth to ensure the efficient and independent performance of these missions and to afford effective support to its agents, the [UN] must provide them with adequate protection’.Footnote 101 The UN also possessed certain characteristics in counterpose to states and, in particular, was empowered to enter, and in practice entered into, international agreements oppositional to states. This is more fully explored in Section 3.4, below.
In Second Admissions, the Court considers the practice of the UN Security Council and the General Assembly with regards to matters of admission. The Court rejected an offered interpretation of Article 4(2) that would allow the General Assembly to decide a membership application even if the ‘recommendation’ of the Security Council was against admission, on the basis that this was not how, in practice, the two organs concerned had ‘consistently interpreted the text’.Footnote 102 The Court referred to the Rules of Procedure of the General Assembly, which permitted consideration of an application for membership only ‘if the Security Council recommends the applicant State for membership’.Footnote 103 The ICJ noted that, in the absence of such a recommendation, the Rules ‘merely’ allowed the Assembly to send an application back to the Security Council for reconsideration; this procedure had in fact been followed several times.Footnote 104
In Effect of Awards, the General AssemblyFootnote 105 submitted for an Advisory Opinion the following question:
has the General Assembly the right on any grounds to refuse to give effect to an award of compensation made by [the United Nations Administrative Tribunal] in favour of a staff member of the United Nations whose contract has been terminated without his assent?Footnote 106
The first impression of this Advisory Opinion is that it largely depends upon a teleological interpretation. The Court notes that, as with Reparation for Injuries, ‘[t]here is no express provision for the establishment of judicial bodies or organs and no indication to the contrary’ in the UN Charter, thereby triggering an enquiry into whether the Charter implied ‘the power to establish a judicial tribunal to adjudicate upon disputes arising out of the contracts of service’.Footnote 107 It found in the affirmative, that affording a ‘judicial or arbitral remedy’ to UN staff to resolve employment-related disputes (in light of the UN's jurisdictional immunity in national courts) was implied by the Charter's preambular language.Footnote 108 But in extensively considering the text of the Tribunal's Statute and the Staff Regulations and Rules adopted by the General Assembly, the Court is effectively depending upon practice. The independent and adjudicative character of the Tribunal, incurring binding obligations on the part of the UN is indisputable, based upon the practice of the Statute. Arguments to the contrary – superimposing budgetaryFootnote 109 or institutional supremacyFootnote 110 of the General Assembly onto the terms of the Statute – are belated contrivances. The General Assembly was free to abolish the Tribunal, or adopt an altered Statute, but until it resolved to do so, it was bound by its own institutional practice.Footnote 111
In Maritime Safety Committee, the Court refers to the ‘practice followed by the Assembly in relation to other Articles’ demonstrating that ‘registered tonnage’ was the meaning attributed to all other references involving ‘ship-owning nations’.Footnote 112
In Certain Expenses, the Court was requestedFootnote 113 to provide an Advisory Opinion on whether or not certain ‘expenditures authorised in General Assembly resolutions’ constituted ‘expenses of the Organization’ within the meaning of Article 17(2) of the UN Charter.Footnote 114 The resolutions related to UN peacekeeping operations (in Congo and Egypt). The Court recalled how, in Second Admissions, it had ‘sustained its interpretation’ by considering how the organs involved had ‘consistently interpreted the text’ in practice.Footnote 115 States opposed to the operations sought to draw a distinction between an ‘administrative budget’ that was to be considered the apportionable expenses of Article 17(2) and an ‘operational budget’ met by contributions from states that backed the corresponding resolution.Footnote 116 But, as the Court notes, the Charter uses the term ‘administrative budget’ (in paragraph 3 of the same Article) and therefore, if the ‘budget’ of paragraph 1 meant ‘administrative budget’, it would have said so.Footnote 117 And practice was determinative. The Court observes that the Financial Regulations of the UN, adopted by resolution of the Assembly in 1950 ‘speak only of “the budget” and do not provide any distinction between “administrative” and “operational”’; this was in contrast, the Court noted, to the Constitution of the International Refugee Organization, approved by the first session of the General Assembly which subdivided ‘budget’ into ‘administrative’, ‘operational’ and ‘large-scale settlement’.Footnote 118 In other words, the subdivision of ‘budget’ could have been, but was not, borne out by the practice of the organization – it had been discussed, but the distinction had not been adopted in practice.Footnote 119 Furthermore, the Court finds that ‘[i]t is the consistent practice of the General Assembly to include in the annual budget resolutions, provision for expenses relating to the maintenance of international peace and security.’Footnote 120 Similarly, the Court determines ‘expenses of the Organization’ to mean ‘all expenses and not just certain types of expenses’.Footnote 121
To counter an argument that it was only the Security Council that intra vires could approve peacekeeping operations, the Court finds that the responsibility of the Council for the maintenance of international peace and security is ‘primary’ but not exclusive. In fact, the only limits on the Assembly are not to recommend action while the situation is under consideration of the Security Council (Art. 12 of the UN Charter) and that, unlike the Council, it cannot take coercive action.Footnote 122 Otherwise, practice was persuasive that action included ‘investigation, observation and supervision’ on behalf of the Assembly, the only limitation imposed being the consent of the state subjected to the action. Such action, ‘which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations’ enjoys the ‘presumption’ that it is intra vires.Footnote 123 If so, action is attributable to the UN, not a coalition of members or a particular organ. The Court finds that since both peacekeeping operations approved for Congo and Egypt do not have an enforcement role, they are intra vires within the scope of the General Assembly's responsibilities.Footnote 124 In conclusion the Court finds that:
financial obligations which, in accordance with the clear and reiterated authority of both the Security Council and the General Assembly, the Secretary-General incurred on behalf of the United Nations, constitute obligations of the Organization for which the General Assembly was entitled to make provision under the authority of Article 17.Footnote 125
In Nuclear Weapons, the Court considered the resolutions and report of the WHO placed before it and found no practice of referring to the legality of the health effects of nuclear weapons (see Section 3.1, above).
The exercise by South Africa of mandatory administration over ‘South-West Africa’ (i.e., Namibia) provided the ICJ with three separate, but connected, advisory opportunities to render incidental interpretation of the UN Charter, demonstrative of the importance of practice. In 1950 the Court's Opinion was sought on the international status of South-West Africa, in light of the administrative obligations over the mandate territory having been assigned to South Africa by the defunct League of Nations.Footnote 126 The Court found that the grant of authority afforded by the mandate was synonymous with supervision of such authority.Footnote 127 So, ‘[t]he necessity for supervision continues to exist despite the disappearance of the supervisory organ under the Mandates systems’.Footnote 128 In terms similar to Reparation for Injuries, the Court found that the UN General Assembly assumed the role of supervisor ‘derived from the provision of Article 10 of the Charter, which authorises the General Assembly to discuss any questions or any matters within the scope of the Charter’.Footnote 129 But, in all this, the Court found that South Africa itself had consistently made successive declarations consistent with the Court's opinion of its mandate role.Footnote 130
The situation of South-West Africa returned again to the Court when asked to interpret their earlier finding that:
the degree of supervision to be exercised by the General Assembly should not. . . exceed that which applied under the Mandates System, and should conform as far as possible to the procedure followed in this respect by the Council of the League of Nations.Footnote 131
The Assembly had proceeded on the basis that decisions concerning South-West Africa were ‘important questions’ within the meaning of Article 18(2) of the UN Charter, thereby requiring a two-thirds majority to pass.Footnote 132 South Africa argued that this resulted in a greater degree of supervision than that afforded by the League which was ruled by unanimity such as the mandate power could effectively wield a veto.Footnote 133 However, the Court found that conformity with the mandate System had been caveated by the suffix ‘as far as possible’; thus the Assembly's consistently applied voting system, exercised in accordance with the UN Charter from which it derived its supervisory responsibility, prevailed.Footnote 134
The third Opinion of the Court on South-West Africa, Presence in South-West Africa,Footnote 135 is extolled as the apogee of subsequent practice of an IO affording conclusive interpretation.Footnote 136 Incidental to the requested Opinion was a challenge by South Africa to the Court's jurisdiction on the basis that two permanent Security Council members had abstained from the resolution requesting an Advisory Opinion of the Court, thus depriving the resolution of ‘concurring votes of the permanent members’ of the Security Council under Article 27(3) of the UN Charter.Footnote 137 However, the Court summarily found this to be no bar to the effectiveness of the resolution, stating ‘the proceedings of the Security Council extending over a long period supply abundant evidence’ that:
[b]y abstaining, a member does not signify its objection to the approval of what is being proposed; in order to prevent the adoption of a resolution requiring unanimity of the permanent members, a permanent member has only to cast a negative vote.Footnote 138
However, given that the same Charter provision provides a basis for abstention (of ‘a party to a dispute’) which does not contradict the concurrence otherwise needed, this would seem to suggest that context also underpins this practice.
Practice can therefore be seen to be one of the surest guides to the meaning of a constituent instrument as it overcomes pressures to adopt momentarily convenient meanings. Occasionally, influential interpretation may be derived from the external missions and international agreements and activities of an IO, but it is the workaday resolutions of institutional organs that repeatedly afford a persuasive meaning to a constituent instrument. In particular, it is the circumstantial operational by-product of an organ – rules of procedure, statues of subsidiary organs, staff rules and financial regulations – that convinces the Court, not least because of the unselfconscious interpretative consistency of such resolutions.
3.4 Purpose can supplement the text, but cannot contradict practice
The last limb of Article 31(1) of the Convention affording a treaty interpretation ‘in the light of its object and purpose’ is considered by some to be an unsatisfactorily ‘vague and ill-defined term, making it an unreliable tool for interpretation’.Footnote 139 However, the ILC Commentary explains the interpretative role of object and purpose as being:
[w]hen a treaty is open to two interpretations one of which does and the other does not enable the treaty to have appropriate effectiveness, good faith and the objects and purposes of the treaty demand that the former interpretation should be adopted.Footnote 140
This teleological approach is therefore tied to the principle of good faith, pacta sunt servanda,Footnote 141 and the assumption that the organization is intended to be able to functionally respond to the expectations recorded by the preamble and purposes provisions. So it would appear that regard to purpose is essential to enabling an IO to function, without which the IO would be limited to expressly attributed powers. This has led to the supposition of an interpretative ‘rule that the [constituent] instrument as a whole. . . must be taken to have been intended to achieve some end and that an interpretation which would make the text ineffective to achieve the object in view is prima facie suspect’.Footnote 142 However, it also has been noted that, ‘[i]f an international organization has limited powers, interpretation of its powers cannot extend them without limit’.Footnote 143 An examination of the ICJ's approach suggests that teleological interpretation is not as important a tool of constituent instrument interpretation as it may at first appear.
Reparation for Injuries would seem to stand at the highpoint of purpose-based interpretation. The Court considers a question as to whether the UN – as an IO – has the capacity to ‘bring an international claim’ for reparation against a state allegedly responsible for harm to a UN agent.Footnote 144 Whilst the Court finds this to be an incontrovertible attribute of a state,Footnote 145 this leads to the question ‘in the international sphere, has the Organization such a nature as involves the capacity to bring an international claim?’Footnote 146 To determine this, the Court asks ‘does the Organization possess international personality?’Footnote 147
The Court begins by acknowledging that this question is not immediately answered on the face of the text of the UN Charter.Footnote 148 So instead they ‘must consider what characteristic [the Charter] was intended thereby to give to the Organization’. In this sense then, the text retains an essential role. It is by using the text of the Charter that the Court identifies a series of organizational attributes: the UN must be given every assistance by its members; members must accept and carry out decisions of the Security Council; the General Assembly can make recommendations to states; and within national jurisdictions, the UN is afforded legal capacity and privileges and immunities.Footnote 149 From this emerges an IO that, at least in certain competencies, is in counterpose to states.
Moreover, the Court also notes that the UN has the power to conclude agreements with members; practice was noted by the Court to sustain all of these attributes, but ‘in particular the conclusion of conventions to which the Organization is a party’.Footnote 150 The Court draws attention to the 1946 Convention on the Privileges and Immunities of the United Nations, stating ‘[i]t is difficult to see how such a convention could operate except upon the international plane and as between the parties possessing international personality’.Footnote 151 Thereby, the Court concludes that in ‘entrusting certain functions’ to the UN this must have been accompanied by members affording it the ‘competence required to enable those function to be effectively discharged’.Footnote 152 The Court makes clear that this does not make the UN the equivalent of a state, but ‘[w]hat it does mean is that [the UN] is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims’.Footnote 153 Such a claim can be brought against members and the Court goes on to find that it can encompass both injury to the UN itself and its agents both as against members and non-members, the UN having an ‘objective international personality’.Footnote 154
In this way, the Court did not abandon text. Granted, no provision of the Charter states, as the Court finds, the UN to be an international legal person. But in itemizing all of the functions textually attributed to the UN, and assuming that these functions were intended to be carried out effectively, the Court concludes that the UN must therefore enjoy international legal personality. But, crucially, it is the subsequent practice of the members – in concluding international agreements with, or which are about, the UN – that confirms that the UN is an international legal person.
Similarly, in Effect of Awards, contemplating the General Assembly's creation of a tribunal to resolve the employment disputes of UN officials, the ICJ notes that the UN Charter affords ‘no express provision for the establishment of judicial bodies or organs and no indication to the contrary’.Footnote 155 But the Court makes clear that implied powers are not implied by convenience. Rather, they may only ‘arise by necessary intendment’Footnote 156 to facilitate the fulfilment of the constituent instrument in accordance with the purpose of the IO. In other words, terms are ‘conferred upon [constituent instruments] by necessary implication’.Footnote 157 But, as was seen in Section 3.3, above, it is the prior practice of the Assembly, taking the form of the resolution adopting the Tribunal's Statute that accords it a juridical character, that is determinative.
Likewise, in Nuclear Weapons the Court's interpretation is in small part textual – the WHO Constitution nowhere refers to the legality of health effectsFootnote 158 – but is largely practice-based. The Court's emphasizes three teleological constraints (unmentioned in Reparation for Injuries). First, ‘international organizations are subjects of international law which do not, unlike States, possess a general competence’.Footnote 159 Second, the ‘principle of speciality’ limits the functions of IOs.Footnote 160 Third, the ‘logic of the overall system’ of the United Nations and the UN specialized agencies assigns IOs ‘sectorial powers’ that they may not exceed.Footnote 161 But what undoes the WHO request is the demonstrated practice of considering the effects, but not the legality, of events injurious to health.Footnote 162
The ICJ uses teleological interpretation – finding implied powers not expressly stated in a constituent instrument, but intended to implement the object and purpose of an IO – to supplement the text to the extent needed to action it, but it will not contradict practice in doing so. In Reparation for Injuries, Effect of Awards and Nuclear Weapons, to differing ends, the Court restricts a possible implied interpretation to one reconcilable with the consistent intra vires practice of the organization.
4. Role of constituent instrument interpreters
It has been noted that ‘[e]ven when an [international organization's] charter is silent with respect to authoritative interpretation, in practice members and organs routinely interpret that charter, usually establishing institutional precedents that are conclusive over the long term.’Footnote 163 Treaties that create an IO create an entity that is almost daily engaged in some subsequent practice applying the constituent instrument. Constituent instruments create an entity with a vested interest in and need for ongoing interpretation. And often that organization will be structured so as to have various, bodies, organs, committees and so on, all with a daily need to interpret.Footnote 164 As a practical matter this seems to prioritize IOs as the interpreters of their own constituent instruments. This much can be seen when, as above in Section 3, considering the relevance of (institutional) practice as a tool of interpretation. And in undertaking the role of constituent instrument interpreter by IOs, two further propositions can be made in view of the approach of the ICJ. First, that practice of the organization is interpretation, unless institutionally overruled. And secondly, that interpretation cannot be gratuitous.
4.1 Practice is interpretation, unless institutionally overruled
The UN Charter does not ascribe any organ – the Security Council, the General Assembly or the ICJ – with the authority to render a dispositive and binding interpretation of the Charter. The ICJ can only provide advisory opinions at the request of the UN and the specialized agencies.Footnote 165 In Certain Expenses the ICJ noted that:
[p]roposals made during the drafting of the Charter to place the ultimate authority to interpret the Charter in the International Court of Justice were not accepted; the opinion which the Court is in course of rendering is an advisory opinion.Footnote 166
By contrast, the ILO ConstitutionFootnote 167 is more emphatic and Article 37, entitled ‘Interpretation of Constitution and Conventions’ states:
‘Any question or dispute relating to the interpretation of this Constitution or of any subsequent Convention concluded by the Members in pursuance of the provisions of this Constitution shall be referred for decision to the International Court of Justice.’
But, of course, such a clause in the UN Charter is conspicuous by its absence.
International financial institutionsFootnote 168 allow for a binding and exhaustive interpretation to be rendered firstly by the organizations’ Board of Directors, and lastly by the Board of Governors.Footnote 169 Although this is to say the institution's members will ultimately determine the interpretation of the constituent instrument, it is difficult to see how pacta sunt servanda would not require the membership to follow established tenets of constituent instrument interpretation. As these are institutions capable of weighted and majority voting, the guarantee of good faith interpretation appears critical. Otherwise, the premise that the acts of organs establish the intra vires agreement of all the members is undermined by unorthodox interpretation by a majority.
However, in Certain Expenses the ICJ finds that ‘each organ must, in the first place at least, determine its own jurisdiction [to interpret the Charter]’.Footnote 170 This has been recognized so that ‘[t]he general principle appears to be that each organ is, at first, responsible for interpreting the constituent documents. . . it seems clear that members states will have to conform to interpretation offered by organs, as least at first instance’.Footnote 171 Instead of being adjudicatory in nature, interpretation is inherent in the day-to-day activities of the organs of an IO, and the lawyers who advise them.
4.2 Interpretation cannot be gratuitous
The Court has provided a range of styles of interpretation, from ‘specific’ and ‘limited’ to ‘abstract’ and general, as required.Footnote 172 But each time it has also expressed its interpretation to be restricted to no more than is needed to settle the disputed meaning.Footnote 173 This consistent reticence appears to be the defining characteristic of the Court's approach. But, similarly, the initiation of adjudicative interpretation by IOs is notably restrained. Conspicuously, the Advisory Opinion of the ICJ on the interpretation of a constituent instrument has only been directly sought on seven occasions. Is the Court regarded as an unreliable or unsuitable interpreter of constituent instruments? This seems doubtful. The Court affords considerable deference to the practice of the organization itself whilst adeptly resolving problems of apparent intractability between members.
Likewise, the opportunity afforded an IO by Article 34(3) of the ICJ's Statute to apprise the Court of its own interpretation whenever its constituent instrument is in contention is consistently refused.Footnote 174 The Judgments and Advisory Opinions of the Court routinely record the Registrar forlornly contacting the implicated IO, only to be duly told that the IO ‘did not intend to submit observations’,Footnote 175 although it very occasionally asks to ‘remain informed about the progress of the case’.Footnote 176
Taken together, is this sufficient evidence of a further interpretative proposition? Or, are the means of engagement between the ICJ and IOs on questions of interpretation simply inadequate?Footnote 177 It certainly suggests that the relationship between the ICJ and IOs is somewhat uneasy and uninvolved. But it is also surely proof that the ongoing interpretation of constituent instruments is cohesive and convincing enough to render infrequent the necessity of an adjudication of meaning. When the time comes, the essential economy and ungratuitous interpretation of constituent instruments is the basis for continuing collaboration, not constant confrontation. Interpretation is to be confined not expansive, infrequently sought and seldom proffered.
5. Conclusion
The Vienna Convention marshals text, context, practice, purpose and the travaux of a treaty into a concerted interpretative action. But it contemplates interpretation as an isolated act, not as a contingency of institutional existence and continual collaboration. It has therefore been the contention of this article that an examination of the role of text, the institution and interpreters in the ICJ's approach to constituent instrument interpretation affords nine propositions: sufficiently clear text is conclusive; the text cannot be nullified; working documents afford auxiliary interpretation; consistent practice precludes contrived interpretation; to be consistent, practice need not be unanimous; consistent institutional practice is determinative; purpose can supplement text, but cannot contradict practice; practice is interpretation, unless institutionally overruled; and interpretation cannot be gratuitous.
Taken together, these propositions afford a higher degree of certainty and credibility of interpretation of the constituent instrument than the formal approach of the VCLT. Text takes priority. When the meaning is sufficiently certain, that is the end to enquiry. That text cannot be nullified, holds the entire constituent instrument to be coordinated and meaningful, and acts to check interpretation which disconnects then diminishes, distorts or extinguishes the examined text. When the textual meaning is convincing, convoluted reference to the travaux is disallowed. A study of working documents is occasioned when, in the life of an institution, confusing or potentially paradoxical meaning threatens to impede harmonious practice. Practice is the surest guide to institutionally attributed meaning, overcoming the vagaries of momentarily opportune interpretation. Whilst unanimity could potentially transform isolated or non-binding resolutions into interpretative agreement, it is not a prerequisite to persuasive consistent intra vires practice. The object and purposes of an organization, and the power implied to fulfil express textual provisions, can expound upon a constituent instrument, but cannot contravene practice. Practice as interpretation stands, unless institutionally overruled. Interpretation is responsive not gratuitous, according to the needs of the IO.
In this way, the rivalry between the two major doctrines of treaty interpretation, between the textual and the teleological approachesFootnote 178 is subsumed by the institutional practice of constituent instrument interpretation. It is this practice, as evidence of workable interpretation, which is intrinsic to the operation of IOs and so afforded such prominence by the ICJ's approach. The combined application of the Court's propositions secures the gravamen of this particular type of treaty – an efficient and effective IO – in a way that the VCLT alone cannot. So that whilst the credible and convincing practice of interpretation is an institutional commonplace, the need of IOs for adjudication of disputed meaning is only an occasional necessity.
