INTERPRETATION OF TEXTS IN OPEN INTERNATIONAL ORGANIZATIONS

INTERPRETATION OF TEXTS IN OPEN

INTERNATIONAL ORGANIZATIONS·

By C.F. AMERASINGHEl

The interpretation of constitutional texts of international organizationsand other texts connected with their functions is important for the law ofinternational organization. Apart from constitutional texts, there areresolutions and decisions of the organs of international organizations,such as the General Assembly of the UN, the Executive Directors of theIMF or IBRD and the secretariat of the UN or the management of theIMF or IBRD. Resolutions and decisions of deliberative organs are madeunder powers assigned by the basic constitutional texts, while those of theexecutive organ may be made either under similar powers or under powersvirtually intended to give the secretariat delegated authority from thedeliberative organs. This study will concentrate on the interpretation oftexts in open or universalist organizations, i.e., those internationalorganizations for membership of which all States are eligible.

The principles of interpretation in each case may be somewhatdifferent. Constitutional texts are treaties or conventions and must beinterpreted as treaties or conventions, though there may be specialconsiderations which are relevant and they may have special characteristics. Decisions and resolutions of deliberative organs may sometimesrequire that the basic principles of constitutional interpretation bemodified. Similarly there may be special principles applicable to legislation relating to employment, including Staff and Administrative Ruleswhich are issued by the executive organ and form the bulk of thelegislation promulgated by such organs.

A. CONSTITUTIONAL INTERPRETATION

Constitutional interpretation, more than any other sphere of interpretation, is a rather delicate area of the institutional law of internationalorganizations. There are two basic questions that may be asked:

(I) who may interpret constitutions of international organizations?and

• © Dr C.F. Amerasinghe, 1995.~ LL D (Cantab.); Executive Secretary and Director, Secretariat, World Bank Tribunal;

Honorary Professor of Law, University of Colombo, Sri Lanka; Member, Institut de droitinternational. The views expressed in this article are not necessarily those of the World Bank or theWorld Bank Tribunal.

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(2) what are the principles of interpretation applicable?The answer to the first question is clearer than that to the second, butboth need to be answered to the best of one's ability.

(I) Who may Interpret

In performing their functions, the organs of international organizations in the first place, at least, interpret their constitutions. The ICJ saidof the UN:

In the legal system of States, there is often some procedure for determiningthe validity of even a legislative or governmental act, but no analogousprocedure is to be found in the structure of the United Nations. Proposals madeduring the drafting of the Charter to place the ultimate authority to interpret theCharter in the International Court of Justice were not accepted; the opinionwhich the Court is in course of rendering is an advisory opinion. As anticipatedin 1945, therefore, each organ must, in the first place at least, determine its ownjurisdiction. I

Though the statement made by the ICJ purported to be confined to theUN, it is true of all organizations that in the first place the organconcerned makes an interpretation of its constitution. The GeneralAssembly (GA) has done this on several occasions, sometimes afterconsidering a legal opinion given by the Legal Counsel. 2 The SecurityCouncil (SC) has also interpreted the Charter or the Statute of the ICJin the same way.! The ILO Governing Body interpreted Article 1(5) ofthe ILO constitution on the withdrawal of members from the organization in 1977 in the same way." The Executive Directors of the IMF,sIBRD,6 IFC and IDA6 have frequently taken initial decisions impliedlyinterpreting the Articles of Agreement of these organizations. There mayhave been doubts about the interpretation initially, but once the decisionis taken it is acted upon. A dispute may arise thereafter between member

I Expenses case, ICJ Reports, 1962, at p. 68 (italics added). See also Pollux, 'Interpretation of theCharter', this Year Book, 23 (1946), p. 54 at p. 58; Gordon, 'The World Court and theInterpretation of Consiturive Treaties', American Joumal of International Law, 59 (1965), p. 794 atpp.810-11.

2 See the numerous examples of legal opinions of the Legal Counsel given to the GA in theinterpretation of its powers under the Charter to be found in the UN Juridical Yearbooks.

3 See, e.g., the action taken in 1982 on the implementation of Article 43 of the Charter: legalopinion of the Legal Counsel of 21 October 1982, UN Juridical Yearbook, 1982, p. 183; the decisiontaken on the interpretation of Article 14 of the Statute of the IC]: legal opinion of the Legal Counselof 19 August 1981, ibid., 1981, p. 145.

4 See the Legal Adviser's opinion of 17 August 1977, ibid., 1977, p. 248. The UN JuridicalYearbooks contain many examples of legal opinions or reports relating to the interpretation ofconstitutions of UN specialized agencies given to various organs. Similarly they contain similaropinions and reports given to various organs of the UN.

5 See Selected Decisionsof the International Monetary Fund (1993), passim.fJ The decision taken in 1980 (and impliedly interpreting Article III, section 4(vii) of the Articles

of Agreement) to make structural adjustment loans which were not connected with specific projectswas of this nature.



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States or member States and the organization as to the correctness of theinterpretation which will have to be dealt with as a subsequent dispute.

In the event that a dispute arises about an interpretation of theconstitutional instrument, it will depend on the provisions of theconstitution itself how this dispute is to be settled. The provisions ofthe more important open organizations will be reviewed here. First,there is the situation where the constitution is silent about any particularmode of settlement. A good example of this is the UN Charter. WhileArticle 96(1) permits the GA and the SC to seek an advisory opinion onany legal question from the IC], neither does that provision make theadvisory opinion binding on the organ requesting it or the UN, nor isthat method of answering a legal question made obligatory. Where anadvisory opinion from the IC] is sought and there is no prior orsubsequent agreement among members of the organ or organization thatthe opinion will be treated as binding, a problem arises as to the effect ofthe opinion. Clearly, it would not be binding and the organ or organization can proceed to act upon its own interpretation of the constitutionalinstrument taken in the appropriate way. This would leave the advisoryopinion in limbo, and seriously undermine the authority of the IC], arather unsatisfactory result. Because resort to an advisory opinion fromthe IC] is not specified as the only method of settling a dispute aboutinterpretation, a dispute on interpretation between members or betweenmembers and the organization could be settled by any of the methods ofsettlement specified in Chapter VI of the Charter on the settlement ofdisputes which include conciliation or arbitration or reference to the IC]either under the contentious procedure or under Article 96(1) of theCharter. Further, a dispute as to interpretation of the Charter may verywell arise as only part of a larger dispute between member States. Sucha dispute as to interpretation of the Charter could be settled definitivelyby reference to arbitration or by reference to the IC] under Article 36 ofthe Statute of the IC]. The award or decision would be binding onlybetween the parties to the proceedings. Before the ICJ Article 63 of theStatute gives all the other member States of the organization the right ofintervention, regardless of whether they are already signatories of theStatute and have accepted the jurisdiction of the Court." This maycreate complications, particularly if all or a large number of membersdecide to exercise the right of intervention. Would they be under anobligation to adopt the interpretation given by the IC] in their dealingswith the organization or any organ of the organization and what wouldthe organization's responsibilities be in regard to the interpretationgiven? Clearly also, the member States who were not parties to the case

7 For a discussion of the right of intervention pursuant to Article 63 and its implications generally,see Rosenne, The Law and Practice oj the International Court (1985), PP. 430 ff.; Rosenne,Intervention in the International Court of Justice (1993), pp, 31 ff.



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would not be bound by the interpretation but the rulings of law wouldpresumably have some impact on them as well.

The procedure envisaged in Article 96 of the Charter for securing ajudicial opinion on the interpretation of the Charter by an organ of theUN has been used on several occasions." Although, after the advisoryopinions were given, there may have been disagreement with themamong certain member States, the UN organs concerned adopted themand acted upon them. It must be noted that there cannot be a contentiousprocedure before the ICj between members and the organizationbecause Article 34 of the Statute of the ICj provides that only States maybe parties to contentious cases before the Court, though arbitrationbetween the organization and a State is possible."

Where specific procedures are prescribed in the constitution, thesemust be followed. The constitutions of the ITO and UPU, for example,provide for settlement of disputes between members relating to theirinterpretation by specific procedures. No provision is made for settlement of disputes between the organizations and their members in thisregard. Disputes between members must under Article 50 of the ITUConvention be settled either through diplomatic channels or according toprocedures established by existing treaties between the members concerned or by any other method mutually agreed upon or, failing these, byarbitration. Such disputes must under Article 32 of the UPU Conventionbe settled by arbitration. In the case of the ITU disputes between theorganization and members may be referred to the ICj under Article 96 ofthe Statute of the ICj for advisory opinions, because the GA of the UNhas authorized this procedure for the ITU. But in the case of both thelTV and UPU there is no restriction on the procedure adopted to settledisputes of this kind.

In general, advisory opinions by the ICj may be sought by international organizations which are specialized agencies of the UN wherethe GA of the UN has authorized it under Article 96(2) of the Charter.The GA has given this authorization in the case of several specializedagencies, e.g., UNESCO, ILO, WHO. Where this method of disputesettlement is available, constitutional texts may be interpreted by theIC].

The constitutions of the IMF, IBRD, IDA, IFC, MIGA and IFADprescribe specific modes of settlement of disputes relating to theirinterpretation between members and the organization or between members. In all these organizations the pattern followed is similar. First thedispute must be referred to the Executive Directors, Executive Board, or

8 See, e.g., the First Admissions case, ICY Reports, 1947-8, p. 57; the Second Admissions case, ICYReports, 1950, p. 4; the Intemational Status of South West Africa case, ICY Reports, 1950, p. 128; theExpenses case, ICY Reports, 1962, p. J 51.

9 The WIPO constitution is another instrument that is silent on the matter of interpretation.



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Board of Directors as the case may be. 10 The decision given by this organis final unless any member requires that the decision be referred to theBoard of Governors or the Governing Council and the decision is thenreversed. II Until then the organization may act, if it so wishes, on thebasis of the decision. If the decision is reversed, the decision of the Boardof Governors or the Governing Council is final. There are certainprocedural safeguards prescribed. The Agreement establishing the Common Fund for Commodities has similar provisions on dispute settlementto those contained in the Articles of Agreement of the IBRD, on whichthese provisions were modelled. However, in the event that a decisioncannot be reached by the Fund's Governing Council, compulsoryarbitration is prescribed. 12 Article 64 of the ICSID Convention requiresthat disputes between contracting States regarding the interpretation ofthe Convention which are not settled by negotiation be referred to theICJ, unless another mode of settlement is agreed upon between theStates concerned. The Convention is the constitution of ICSID. Thereis no specific provision for the settlement of disputes between ICSID andcontracting States, if such arise-which may be a lacuna. In this case thedetermination of the interpretation made initially by ICSID or itsrelevant organ would continue to be valid, until a different interpretationis given under a mode of settlement agreed upon by the parties to thedispute and it is agreed that this mode is binding.

In the case of the IMF, IBRD, IFC and IDA, there is a specialprocedure prescribed where disputes arise between the organization andmembers who have withdrawn or ceased to be members or between theorganization and members during the liquidation or permanent suspension of the organization, as the case may be. These must be settled by atribunal of three arbitrators, one appointed by the organization, thesecond by the member and an umpire appointed by the President of theICJ or such other authority as may have been prescribed by regulationadopted by the organization, unless the parties otherwise agree.'> TheAgreement establishing IFAD has substantially the same exception with

10 See Article XXIX(a) of the IMF Articles of Agreement; Article IX(a) of the IBRD Articles ofAgreement; Article X(a) of the IDA Articles of Agreement; Article VlIl(a) of the IFC Articles ofAgreement; Article 56(a) of the MIGA Convention; Article lI(i)(a) of the IFAD Agreement.

II See Article XXIX(b) of the IMF Articles of Agreement; Article IX(b) of the IBRD Articles ofAgreement; Article X(b) of the IDA Articles of Agreement; Article VIII(b) of the IFe Articles ofAgreement; Article 56(b) of the MIGA Convention; Article II(i)(b) of the IFAD Agreement. On theissue whether the provisions of the IMF constitution violate the maxim nemo judex in re sua seeHexner, 'Interpretation by International Organizations of their Basic Instruments', America"Journal of Iniemational Law, S3 (1959), p. 341 at pp, 367 ff.

12 See Articles 52 and 53 of the Agreement. Also see Amerasinghe, 'The Common Fund forCommodities', The International Trade Law YO/mlai, 7 (1982-3), p. 23 I at p. 241.

I) Article XXIX(c) of the IMF Articles of Agreement; Article IX(c) of the IBRD Articles ofAgreement; Article X(c) of the IDA Articles of Agreement; Article VIII(c) of the IFC Articles ofAgreement; Article 1I(1)(c) of the IFAD Agreement.



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a few changes.!" The Agreement establishing the Common Fund provides in Article 53 for arbitration in similar circumstances and sets outthe procedure of arbitration to be followed.

Article IX(2) of the WTO constitution'! vests the exclusive authorityto interpret the constitution in the Ministerial Conference and theGeneral Council. Presumably the decisions of the former would takeprecedence over those of the latter, in case of conflict.

The ILO constitution provides in Article 37 that any question ordispute relating to its interpretation should be referred to the IC] fordecision. The UNESCO constitution has a similar provision in ArticleXIV except that it also provides the alternative of reference to an arbitraltribunal such as the General Conference may determine.'? Reference tothe I'C] through the procedure for advisory opinions would result in suchopinions having a binding effect on the organization and members,unlike the case of the UN. In the case of the FAOI, and ICAOl 8 theprocedure prescribed is negotiation, failing which reference to theplenary organ or the Council respectively. Thereafter, an appeal lies tothe IC] or to another body determined by the plenary organ in the caseof the WHO or to an ad hoc arbitral tribunal in the case of ICAO. Itwould appear from the constitution of the FAD that an advisory opinionof the IC] , where such a procedure is chosen, would be binding on theparties and the organization. The prescription in the WHO constitution'? is similar to that of the FAO constitution except that thealternative to the IC] is another mode of settlement agreed upon by theparties. The provisions of the WMO constitution'< are similar to those ofthe FAO constitution except that the appeal from the plenary organ is toan independent arbitrator appointed by the President of the IC] unlessthe parties agree to another mode of settlement. Article 22( I) of theUNIDO constitution prescribes in some detail the method of settlementof disputes between members concerning the interpretation of theconstitution. Article 22(2) gives the organs of the organization power torequest advisory opinions from the ICj on any legal question arisingwithin the scope of the organization's activities. These opinions wouldnot be binding.

Article 65 of the IMO constitution requires that its interpretation be

14 The third arbitrator (Chairman) is to be appointed by the two parties, but failing suchagreement he or she is to be appointed by the President of the ICJ or such other authority as mayhave been prescribed by regulations adopted by the Governing Council.

'5 See International Legal Materials, 33 (1994), p.• s at p. 19. The provisions of the GATTconstitution are discussed in Bowett, The Law of International Institutions (1982), pp, 150-1.GATT, it will be recalled, preceded WTO.

•1> The latter technique has been used by UNESCO: see the UNESCO Constitution case, AnnualDigest, 16 (1949), p, 331.

11 Article XVII(I) .•8 Article 84.'9 Article 75.20 Article 29.



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referred to the plenary organ for settlement or to another mode ofsettlement agreed upon by the parties. At the same time the articleprovides that nothing in it precludes any organ of the organization fromsettling any question of or dispute relating to interpretation of theconstitution that may arise during the exercise of its functions. Article 66provides that any legal question that cannot be settled under theprocedure of Article 65 should be referred to the IeJ for an advisoryopinion. It is not clear whether such an advisory opinion is intended tobe binding or only advisory. If the opinion is advisory, the power ofdecision-making is re-vested in the organ concerned.

Article XVII of the IAEA Statute prescribes as follows:

Any question or dispute concerning the interpretation or application of thisStatute which is not settled by negotiation shall be referred to the InternationalCourt of Justice in conformity with the Statute of the Court, unless the partiesconcerned agree on another mode of settlement.

It is likely that an advisory opinion would be binding.The commodity agreements generally vest the exclusive or final power

of interpreting the agreements in the plenary organ."This survey would not be complete without, at least, a passing

reference to the constitution of the ISA which is contained in Part V ofthe Law of the Sea Convention. There is an elaborate procedure for thesettlement of disputes between members which could include disputesrelating to the interpretation of the constitution of the ISA. 22 Article 191

of the Law of the Sea Convention, however, provides that on legalquestions arising within the scope of activities of the Assembly or theCouncil of the ISA the Sea-Bed Disputes Chamber of the InternationalTribunal for the Law of the Sea shall give advisory opinions at theirrequest.

In certain disputes, those to which private individuals are parties or aprivate individual is one of the parties, national courts may be calledupon to interpret the constitutions of international organizations in thecourse of settling such dispures.v In such situations the national courtsconcerned may give interpretations of the constitutional texts which arebinding on the parties. This is not contrary to the provisions ofconstitutions where there are prescribed methods of settling disputes,because these provisions relate to disputes between members or between

>I See, e.g., International Cocoa Agreement 1986, Article 62( I); Article S6( I) of the InternationalNatural Rubber Agreement 1979; Article S8(I) of the International Coffee Agreement 1983.

22 See Articles 186 ff. and Part XV of the Law of the Sea Convention. See also Adede, The Systemfor Settlement of Disputes under the United Nations Convention 0" the Law of the Sea (1987), pp. 248ff.

2) See, e.g., J. H. Rayner Ltd. v, Department of Trade and Industry, [1990] 2 AC 418, where theHouse of Lords (UK) interpreted the Sixth International Tin Agreement. For the IMF Articles ofAgreement in the courts see Gold, The Fund Agreement in .the Courts, vols. 1-4 (r 962, 1982, 1986,(989), passim.



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members and the organizations concerned regarding the interpretation ofthe constitutions. Because of immunities it is unlikely that disputesbetween members or between members and the organizations will belitigated in national courts. However, in disputes to which a privateindividual or private individuals are parties, national courts are notprecluded from adopting an interpretation given by a competent international organ or tribunal where such exists, and it is not unlikely thatthey may choose to do this.

(2) Principles of Interpretation

(a) Uncertainty and variability

It may be wise to begin by stating that the present writer believes thatinterpretation of texts in international law is an art and not a science,although, as stated by another jurist.v' it is a characteristic or part of theart to disguise the process of interpretation as a science. That is not to saythat there are no rules or principles. Those there are but when it comesto the choice of rules or principles to be applied in a particular set ofcircumstances, that choice is dependent on so many variables andimponderables that there can be serious disagreement and the answer toa problem of interpretation may savour of subjectivity and, so to speak,depend, to a greater extent than usual, as Holmes said, on the state of thejudges' digestion. Not only, for example, is there very often disagreementon whether the meaning of a text is clear or ambiguous, whether aparticular meaning is the natural or plain meaning, what is the object andpurpose of a document or what was the intention of the framersunderlying the terms used, but interpreters may differ on whether thenatural or plain meaning must be given, whether a meaning should begiven in the light of the object or purpose of a text to the exclusion of theplain and natural meaning, or whether the intention of the parties to orframers of the instrument should be recognized at the expense of whatmay be regarded as the natural or plain meaning. Thus, much may be leftto the preferences of the interpreter in terms of the goals he is aiming toachieve. Indeed, more so than in other areas of the law, the end maydetermine the means adopted and policies may govern the proceduresfollowed.

To illustrate the point made above, some random examples of theinterpretation of constitutional texts may be examined.

(i) In 1986 the Executive Directors of the IBRD were confronted witha problem relating to the interpretation of Article I I of its Articles ofAgreement caused by the introduction of the Special Drawing Right bythe IMF and the Second Amendment of the Articles of Agreement of the

a4 Jennings, 'General Course on Principles of International Law" Recueildescours, 121 (1967-11),p. 323 at p. 544.



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Fund whereby the pre-existing basis for translating the term 'UnitedStates dollars of the weight and fineness in effect on July I, 1944' into anycurrency was abolished. Article II, Section 2(a) of the Articles ofAgreement of the IBRD defined its authorized capital 'in terms ofUnited States dollars of the weight and fineness in effect on July I, 1944'.The Executive Directors were called upon to interpret these words in thelight of changed circumstances. Prefacing their discussion, among otherthings, with the statement that the General Counsel of the Bank hadrendered a legal opiniorr" concluding in substance that, in the exercise oftheir statutory powers of interpretation, the Executive Directors mayinterpret references in the Articles to the 1944 dollar to mean eitherreferences to the last official value of the 1944 dollar in terms of currentUnited States dollars (that is, $1.20635) or references to the SpecialDrawing Right established by the Fund, the Executive Directors,exercising their power of interpretation under Article IX of the Articlesof Agreement, decided the issue

by reading the words 'United States dollars of the weight and fineness in effecton July I, 1944' in Article II, Section 2(a), of the Articles of Agreement of theBank to mean the Special Drawing Right (SDR) introduced by the Fund, as theSDR was valued in terms of United States dollars immediately before theintroduction of the basket method of valuing the SDR on July I, 1974, suchvalue being 1.20635 United States dollars for one SDR.26

It would seem that in regard to the changes in currency valuation thathad occurred there was, apart from 'the 1944 gold dollar', anotherpossible ordinary or natural meaning for the words of Article I I, Section2(a). The words could be taken as a reference to the current market priceof 0.888671 grams of nine-tenths fine gold, expressed in US dollars orthe current dollar equivalent of the 1944 dollar calculated by reference tothe last established IMF par value for the US dollar (i.e., $1.20635).27However, this meaning would not have taken into account the SpecialDrawing Right (SDR), the creation of which and the abolition of the parvalue system had not been addressed at all by the framers of the IBRDconstitution. Indeed, the IMF had to amend its constitution to permitthe use of the SDR for various purposes. It was only by reference to aprocess of teleological interpretation, in other words by the application ofthe maxim ut res magis ualeat quam pereat, that the meaning given to thewords interpreted could have been given. In this case the solutionadopted was intended to serve best the objectives of the institution and

Z5 This legal opinion is not available to the public, but the conclusions of the opinion aresubstantially set out in Shihata, 'The "Gold Dollar" as a Measure of Capital Valuation afterTermination of the Par Value System: The Case of IDRD Capital', German Yearbook ofInternational Law, 32 (1989), p. 55·

zft Decisions of the Executive Directors underA rticleIX of the A rticles of Agreement on Questio1ls ofInterpretation of the Articles of Agreement(1991), p. 22 (Decision No. 13 of 14 October 1986).

Z7 See Shihara, loc. cit. above (n. 25), at p. 70 and p. 58.



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its policies in the future in the light of developments that had taken placein the monetary sphere, rather than to defeat or inhibit such objectivesand policies. While the natural and ordinary meaning of the wordsinterpreted was apparently not adopted and their purely literal sense wasmodified, a meaning was chosen which was more consistent with presentday realities and possibly more just in its application to all the membersof the institution, while it is clear that there were also elements of policyinvolved in the adoption of the interpretation. What was done by theExecutive Directors could be regarded as coming close to amendment ofthe constitution. Indeed, the possibility of future amendment wascontemplated, with the interpretation adopted being regarded as valid tillsuch amendment took place. In contrast to a literal or textual approach,a radical teleological approach to interpretation was taken, which mayhave surprised even the most liberal members of the textual school ofinterpretation. The interpretation was by an authoritative body and hasbecome binding and final. No reasonable person would say that the resultwas not practical or even perhaps inappropriate. However, the exampledoes demonstrate that interpretation can be very much of an art. Theimplementation of a strictly teleological approach had results which wereacceptable and perhaps unavoidable. This is surely an instance of themeans serving the end, in a true sense.

(ii) In the First Admissions case" the ICj was called upon to interpretArticle 4( I) of the Charter of the UN. This article provided that:

Membership in the United Nations is open to all other peace-loving Stateswhich accept the obligations contained in the present Charter and. in thejudgment of the Organization, are able and willing to carry out these obligations.

There were enumerated five conditions which admission to membershipof the UN required, namely (a) statehood; (b) being peace-loving; (c)acceptance of the obligations of the Charter; (d) ability to carry out theseobligations; and (e) willingness to do so. The question raised waswhether these conditions were exhaustive or not. The majority of theCourt came to the conclusion that

The natural meaning of the words used leads to the conclusion that theseconditions constitute an exhaustive enumeration and are not merely stated byway of guidance or example. The provision would lose its significance andweight. if other conditions. unconnected with those laid down, could bedemanded."?

While obviously applying the maxim expressio unius est exclusio alterius,the Court decided that the meaning it gave was the natural and ordinarymeaning of the words construed. A four-judge minority, however, found

.8 ICY Reports, 1947-8, p. 57.'9 Ibid., at p. 62.



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that 'the relevant provisions did not seem to be clear enough to providea simple and unambiguous answer'>" to the question raised. They appliedthe principle in these circumstances 'to the effect that no restriction uponthis rule or principle (of freedom or liberty) can be presumed unless itcan be clearly established, and in case of doubt it is the rule or principleof law which must prevail' .3\ Further, they used the travaux preparatoires to support their conclusion that other considerations thanthose listed could be taken into account by members of the organsconcerned, though they had, among other things, to act in good faith. Inthis instance there was not only a disagreement as to whether the wordsbeing construed had a natural and plain meaning but the principles ofinterpretation applied beyond that were different. There were ninejudges in the majority in this case and six in the minority which showsthat the choice of principles of interpretation applied in a given situationmay well be subjective and may be determined by the goal proposed tobe achieved rather than by any scientific rationale, while there is alsoroom for disagreement on basic questions such as whether a meaning isplain and natural. This was an advisory opinion given by the ICJ inresponse to a request made by an organ of the UN under Article 96 of theCharter in order to enable the UN to perform its functions.

(iii) In the performance of their functions under Article 14 of theStatute of the ICJ concerning filJing of vacancies on the Court, therelevant organs of the UN had to make a decision on the interpretationof that article which stated that

the Secretary-General shall within one month of the occurrence of the vacancy,proceed to issue the invitations provided for in Article 5 ...

The question that arose resulted from the time at which the vacancy onthe Court occurred. In a legal opinion provided by the Legal Counsel ofthe UN to the President of the Security Council the problem was statedas follows:

In the circumstances, a situation would result where a regular election to fillthe seat concerned for a nine-year term of office, commencing on 6 February1982, would in all probability be held before a casual election to fill the same seatfor a brief period of a number of weeks ending on 5 February 1982. Because ofthe three-month time-limit between the dispatch of invitations for nominationof candidates and the election to fill the casual vacancy, as well as the preparationof the necessary documentation, that election could not take place at the earliestbefore the very end of November 1981 and a date in the middle of or lateDecember would be more realistic. Regular elections are normally held inOctober of the year in which they take place.3 z

.10 Ibid., at p. 83.

.1' Ibid., at p. 86.)2 UN Juridical Yearbook, 1981, at p. 146.



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The language of the provision in the Statute seemed to be clear, butwould have led, if taken literally, to an unreasonable result because of alacuna. The advice given which was followed was:

Having in mind its responsibilities under Article 14 of the Statute of the Courtto fix the date of an election to fill a casual vacancy, the Security Council maywish to consider whether that article necessarily applies in the circumstancesdescribed above. The legislative history of the article indicates that its purposewas to obviate extensive delays in the filling of casual vacancies and there is noindication it was meant to apply where only very brief periods are involved. Inthe present case no extensive delay would be occasioned by leaving the casualvacancy open, as the seat concerned would be filled during the regular electionsfor a term of office commencing on 6 February 1982. Having regard to the factthat periods of almost a year have in a number of cases elapsed between theoccurrence of a casual vacancy and the election to fill it, the practice of theSecurity Council and of the General Assembly would also support a conclusionthat, in the circumstances, the intention underlying Article 14 would equallywell be served by leaving the casual vacancy open and filling the seat at theregular election.P

Both the legislative history and subsequent practice of the UN organwere cited to support an interpretation that was both practical andavoided an inconsistent result, though the language of the provisionbeing construed seemed to be imperative. An exception to the provisionwas accepted by finding a lacuna in the language and construing the textin the light of the travaux preparatoires and the practice of the organ. Noone would probably dispute the wisdom of the solution, but the case doesshow that natural and ordinary meanings are sometimes deliberatelyignored in order to avoid impossible results. There was here a consciouschoice of a reasonable solution.

(iv) In the Expenses case, four different approaches were taken to theproblem of interpretation by the judges of the ICJ. 34 Three resulted inthe same conclusion; one resulted in a different conclusion. The issue waswhether the term 'expenses' in Article 17 of the Charter was limited to'regular' expenses or included expenditures incurred for the maintenanceof international peace and security. Article 17(2) provided that 'Theexpenses of the Organization shall be borne by the Members as apportioned by the General Assembly'. The majority on the Court had nohesitation in deciding that, considering also the context of the Charter asa whole, the term 'expenses' had a plain and natural meaning, whichincluded the expenditures in question. The majority only referred to thepractice of the organization to support what it thought was the plain and

~.l Ibid.H ICY Reports, 1962, p. 15 I. The application of principles of interpretation in this case was

examined by the author in 'The United Nations Expenses Case-A Contribution to the Law ofInternational Organization', Indian fournal of International Law, 4 (19 64), p. 177.



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natural meaning. Judges Winiarski and Koretsky, 35 dissenting, appliedthe same original principle applied by the majority, emphasizing thecontext of the Charter, but came to the opposite conclusion. JudgeSpender arrived at the same conclusion as the majority but took adifferent route. He was of the opinion that the meaning of the text wasnot clear and unambiguous and, therefore, applied the principle ofeffectiveness, particularly because the Charter was a constitutionalinstrument. He was of the view that:

It may with confidence be asserted that its provisions should receive a broadand liberal interpretation unless the context of any particular provision requires,or there is to be found elsewhere in the Charter, something to compel a narrowerand restricted interpretation.

The stated purposes of the Charter should be the prime consideration ininterpreting its text. J6

Judge Fitzmaurice, on the other hand, while finding, as Judge Spenderdid, that there were ambiguities, examined the trauaux preparatoires andcame to the same conclusion as the majority. 37 Quot homines tot sementiae-two sets of judges who took the same approach came to diametrically opposite conclusions, and three sets of judges who took differentapproaches came to the same conclusion for different reasons.

What these examples show is that results of interpretation, particularlyof constitutional texts, may often be unpredictable and uncertain. Theymay depend simply on who is in a majority and to a large extent on policyconsiderations.

(b) The theories

Much has been written on the principles of interpretation of treaties. 38

There are a plethora of differing views on the subject. For example, thereare those who really do not recognize that there are any principles orrules governing the interpretation of treaties on the basis of the theorythat conclusions as to meaning are reached on policy grounds with theresult that principles of interpretation are used as a means to rationalize

3S ICY Reports, 1962, at pp. 230 and 284 respectively.]b Ibid., at p. 185.n Ibid., at p. 209 ..18 See, e.g., McNair, Law of Treaties (1961), pp. 364-489; Fitzmaurice, The Law and Procedure

of the lnternational Court ofJustice (1986), PP. 42 ff. and 337 ff.; Rousseau, Droit international public,vol. I (1971), pp. 241 ff.; de Visscher, Problemes d'interpretation judiciaire UI droit international public(1963); Degan, L'Interpretation des accords en droit international (1963); Jennings, 'General Courseon Principles of International Law', Recueil des cours, 121 (1967-11), at pp. S44 ff.; Sinclair, TheVienna C01lve1Iti01I 0" the Law of Treaties (1984). pp. 114 ff.; H. Lauterpacht, The Development ofInternational Law by the International Court (1958), pp. 116 ff.; McDougal, Lasswell and Miller, TheInterpretation of Agreements and World Public Order (1967); Discussion in Annuaire de I'Institut dedroit international, 43(1) (1950), pp. 366-460; ibid., 44(2) (195 2 ) , pp. 353-406; ibid., 46 (1956), pp.317-49; Bos, 'Theory and Practice of Treaty Interpretation', Netherlands International Law Review,~7 (198 0), p. 135; Yambruaic, Treaty Interpretation (1987 ).



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or to disguise judicial creativeness.t'' While this view may be explained asa justifiable reaction against the views of those theorists who postulate arigid hierarchy of rules and maxims as the basis of treaty interpretation,it may go too far in the direction of devaluing applicable generalprinciples which are distinctly called into service, even if sometimesthere is no certainty as to the manner in which those general principleswill be chosen for application or as to the greater importance of one oranother. It also does not give any indication of how an internationaltribunal or independent interpreter will proceed when requested tointerpret a treaty, even though the conclusion that may be reached issometimes unclear and denies that there are certain parameters ofprinciple within which interpreters work and guides to how interpreterswill frame their approach. Then there are those who identify a hierarchyof rules and principles which are applicable, if not mechanically, yetsomewhat inexorably.40 There is also another end of the spectrumrepresented by those who would subject interpretation to 'over-ridingcommunity goals' and 'genuine shared expectations' of the parties.:"

As to the goal of treaty interpretation there are broadly three schools ofthought. First, there are those who would maintain that the primary goalis to ascertain the meaning of the text.:" Second, there are those whoassert that the aim is to ascertain the intention of the parties.P Third,there are those who think that the interpreter must first ascertain theobject and purpose of the treaty and then give effect to that object andpurpose.v' McNair perhaps represents a fourth approach which combines the first two approaches in that he suggested that the function ofthe interpreter is to give effect to the expressed intention of the parties,that is, their intention expressed in the words used by them in light of thesurrounding circumstances.t" A jurist, commenting on the first threeschools of thought, has stated:

These three different schools of thought, with their varying emphases, arecommonly said to reflect the subjective (or 'intentions of the parties') approach,the objective (or 'textual') approach and the teleological (or 'object and purpose')approach. They are not, of course, mutually exclusive. The most rigid adherentof the textual approach would scarcely argue that a tribunal should deliberatelyseek to establish a meaning which was not within the contemplation, orintention, of any of the parties to the dispute; and the most rigid adherent of the

19 See, e.g., Stone, 'Fictional Elements in Treaty Interpretation', Sydney Law Review, 1 (1955),

P·344·40 See, e.g., perhaps Fitzmaurice, op. cit. above (n. 38), who comes very close to this status.41 See McDougal, Lasswell and Miller, op. cit. above (n. 38).4Z See Fitzmaurice, op cit. above (n, 38), pp. 338 ff., for an explanation of this approach.43 See, e.g., H. Lauterpacht, in Annuaire de l'Institut de droit international, 43(1) (1950), pp. 366

ff.; Verdross, Viilkerrecht (1964), pp. 173 ff.; Parry, in Serensen (ed.), Manual of International Law(1968), pp. 210 ff.; Haraszti, Some Fundamental Problems of the Lato of Treaties (1973), pp. 28 fT.

44 Article 19(a) of the Harvard Draft on the Law of Treaties.45 Op. cit. above (n. 38), p. 365.



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intentions approach would not seek to deny that the text of the treaty willconstitute evidence of what was the intent of the parties.t"

None of the theories, however, treats constitutional texts in a special way.Whatever is the view of interpretation taken, it may be necessary tomodify the approach in regard to the interpretation of such texts.

It may also be useful at this stage to look at the manner in whichFitzmaurice, who, among other things, made an in-depth study of theearly (up to 1954) practice of the IeJ in regard to treaty interpretation,approached the problem of interpretation. He postulated the followingprinciples in some hierarchical order:

I. Principle of Actuality (or Textuality). Treaties are to be interpretedprimarily as they stand, and on the basis of their actual texts.

II. Principle of the Natural and Ordinary Meaning. Subject to Principle VIbelow, where applicable, particular words and phrases are to be given theirnormal, natural, and unstrained meaning in the context in which they occur.This meaning can only be displaced by direct evidence that the terms used areto be understood in another sense than the natural and ordinary one, or if suchan interpretation would lead to an unreasonable or absurd result. Only if thelanguage employed is fundamentally obscure or ambiguous may recourse be hadto extraneous means of interpretation, such as consideration of the surroundingcircumstances, or travaux preparatoires,

II I. Principle of Integration. Treaties are to be interpreted as a whole, andparticular parts, chapters or sections also as a whole.Subject to the foregoing Principles

IV. Principle of Effectiveness (ut res magis ualeat quam pereat). Treaties are tobe interpreted with reference to their declared or apparent objects and purposes;and particular provisions are to be interpreted so as to give them their fullestweight and effect consistent with the normal sense of the words and with otherparts of the text, and in such a way that a reason and a meaning can be attributedto every part of the text.

V. Principle of Subsequent Practice. In interpreting a text, recourse to thesubsequent conduct and practice of the parties in relation to the treaty ispermissible, and may be desirable, as affording the best and most reliableevidence, derived from how the treaty has been interpreted in practice, as towhat its correct interpretation is.

Footnote to this Principle. Where the practice has brought about a change ordevelopment in the meaning of the treaty through a revision of its terms byconduct, it is permissible to give effect to this change or development as anagreed revision but not as an interpretation of its original terms.To the above principles may now be added, on the basis of certain pronouncements made in the 1951-4 period, a sixth major principle, as follows:

VI. Principle of Contemporaneity. The terms of a treaty must be interpretedaccording to the meaning which they possessed, or which would have beenattributed to them, and in the light of current linguistic usage, at the time whenthe treaty was originally concluded .

..<> Sinclair, op. cit. above (n. 38), p. II S.



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This last principle could perhaps be regarded as constituting in a sense no morethan a qualification to the principle (No. II) of the natural and ordinarymeaning. But, on account of its affinities with the principle of the inter-temporallaw and for other reasons ... , it seems to go beyond that, and to merit the statusof an independent principle of interpretation.t?

It will he noted that as a general analysis of the principles of interpretation, this approach does not give much place to the use ofpreparatory work. It may also reflect too rigid an approach for constitutional interpretation, even as done by the IC].

The resolution of the Institut de droit international of 1956 took apractical approach to the subject. It stated:

Article I

I. The agreement of the parties having been embodied in the text of thetreaty, it is necessary to take the natural and ordinary meaning of the terms ofthis text as the basis of interpretation. The terms of the provisions of the treatyshould be interpreted in their context as a whole, in accordance with good faithand in the light of the principles of international law.

2. If, however, it is established that the terms used should be understood inanother sense, the natural and ordinary meaning of these terms will bedisplaced.

Article 2

I. In the case of a dispute brought before an international tribunal it will befor the tribunal, while bearing in mind the provisions of the first article, toconsider whether and to what extent there are grounds for making use of othermeans of interpretation.

2. Amongst the legitimate means of interpretation are the following:(a) Recourse to preparatory work;(b) The practice followed in the actual application of the treaty;(c) The consideration of the objects of the treaty.t"

Again, there may be good reason to modify this formulation in the lightof practice in relation to constitutional interpretation.

(c) The Vienna Convention of I969

The Vienna Convention on the Law of Treaties of 1969 did in itsSection 3 incorporate some provisions on interpretation of treaties.Articles 31 and 32 stated:

47 Fitzmaurice, op. cit. above (n. 38), pp. 345 ff. The practice of the l'C] in the period 1954-89 hasbeen examined in the light of Fitzmaurice's formulation by Thirlway, 'The Law and Procedure ofthe International Court of Justice 1960-1989', this Year Book, 62 (1991), p. 1 at pp. 20 ff.

48 Annuaire de l'Institut de droit international, 46 (1956), at pp. 358-9.



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OPEN INTERNATIONAL ORGANIZATIONS

Article ]1

General Rule of Interpretation

I. A treaty shall be interpreted in good faith in accordance with the ordinarymeaning to be given to the terms of the treaty in their context and in the lightof its object and purpose.2. The context for the purposes of the interpretation of a treaty shall comprisein addition to the text. including its preamble and annexes:

(a) any agreement relating to the treaty which was made between all theparties in connection with the conclusion of the treaty;

(b) any instrument which was made by one or more parties in connection withthe conclusion of the treaty and accepted by the other parties as aninstrument related to the treaty.

3. There shall be taken into account, together with the context:(a) any subsequent agreement between the parties regarding the inter

pretation of the treaty or the application of its provisions;(b) any subsequent practice in the application of the treaty which establishes

the agreement of the parties regarding its interpretation;(c) any relevant rules of international law applicable in the relations between

the parties.4. A special meaning shall be given to a term if it is established that the partiesso intended.

Article ]2

Supplementary Means of Interpretation

Recourse may be had to supplementary means of interpretation, including thepreparatory work of the treaty and the circumstances of its conclusion, in orderto confirm the meaning resulting from the application of article 3 I, or todetermine the meaning when the interpretation according to article 3 I :

(a) leaves the meaning ambiguous or obscure; or(b) leads to a result which is manifestly absurd or unreasonable.w

This formulation seems to allow for more flexibility than those ofFitzmaurice and the Institut de droit international. Apart from therequirement of good faith. which seems basic. in any case. interpretationis first to be (i) according to the ordinary meaning of terms but takinginto account (ii) the context and (iii) the object and purpose of the treaty.Further, there are listed in paragraphs 2 and 3 six matters which eitherare included in the context or are to be considered together with thecontext, namely (i) the preamble and annexes; (ii) an agreement made inconnection with the conclusion of the treaty; (iii) an instrument made byone or more parties and accepted by the others as related to the treaty;(iv) a subsequent agreement regarding the interpretation of the treaty orits application; (v) subsequent practice; and (vi) rules of internationallaw. This means that the primary rule of natural meaning is to be appliedin the light of the context. the object and purposes of the treaty and the

49 See International Legal Materials, 8 (1969), p. 679 at pp. 691 ff.



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six other considerations referred to above, which implies that an abstractnatural meaning may be modified by any of these eight considerations.Preparatory work (not included among the above eight matters) and thecircumstances of conclusion of the treaty, on the other hand, are no morethan supplementary means of interpretation to be resorted to onlysecondarily and in certain circumstances. S° The convention thus givesthe object and purpose of the treaty and the subsequent practice a placeas part, so to speak, of the ordinary meaning which means that theprinciples of effectiveness and of subsequent practice are applicable asprimary tools in the process of interpretation. The preparatory work, onthe other hand, is secondary and takes a back seat, thus reducing theimportance of the true or actual intention of the parties, as such.

Article 5 of the convention makes it applicable to the constituentinstruments of international organizations. This must apply to theprovisions on interpretation as well. However, although the convention isin force and has been ratified by 74 States (as of March 1994), there maybe serious questions as to how it can bind international organizations,which are not parties to the convention, and whether the ICJ is bound toapply it when giving an advisory opinion which is not a judgmentpronounced in a contentious proceeding in respect of States who may beparties to the convention. It must be recognized, on the other hand, thatthe argument may be made that the provisions on interpretation of theconvention reflect an established or emerging customary law, particularlyby virtue of the convention's being followed in this regard."

(d) The precedents on constitutional interpretation

An analysis of the precedents on constitutional interpretation will shedsome light on how the task of interpretation has in fact been approachedby international organs, both judicial and non-judicial, which have beencalled upon to interpret the constitutions of international organizations. 52

The main concern will be with judicial or quasi-judicial precedents,though where these are important, other precedents will be examined.

While the ordinary and natural meaning may have been emphasized intheory, it cannot be denied that often there might be difficulty inascertaining precisely this. The PCIj and ICJ have apparently adopted

so For an examination of how the practice of the ICJ and other tribunals conforms or not to theVienna Convention on the Law of Treaties, see Sinclair, op. cit. above (n. 38), pp, 119 ff.

S' The Vienna Convention of 1986 on the Law of Treaties between States and InternationalOrganizations or between International Organizations, International Legal Materials, 25 (1986), p.543, has similar provisions to those contained in the Vienna Convention on the Law of Treaties of1969. The same questions may be raised in regard to the application of the former convention as havebeen raised in the case of the latter convention.

5" Constitutional interpretation by courts and tribunals has been examined in some depth, thoughsome time ago, among others, by Gordon, 'The World Court and the Interpretation of ConstitutiveTreaties', American Journal of International Law, 59 (1965), p. 794; E. Lauterpacht, 'TheDevelopment of the Law of International Organization by the Decisions of International Tribunals',Reeueil des cours, 152 (I 976-1 V), p. 387 at pp. 414 ff.



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as their cardinal rule of interpretation, even in relation to constitutions,that words should be read, obviously in their context, in their natural andordinary sense, unless they are ambiguous or, so read, lead to anunreasonable result. 53 However, as was noted by Judge Spender, in aseparate opinion in the Expenses Case:

This injunction is sometimes a counsel of perfection. The ordinary andnatural sense of words may at times be a matter of considerable difficulty todetermine. What is their ordinary and natural sense to one may not be so toanother. The interpreter not uncommonly has, what has been described as, apersonal feeling towards certain words and phrases. What makes sense to onemay not make sense to another. Ambiguity may lie hidden in the plainest andmost simple of words even in their natural and ordinary meaning. Nor is italways evident by what legal yardstick words read in their natural and ordinarysense may be judged to produce an unreasonable result.v'

Judge Spender consequently placed emphasis on teleological canons ofinterpretation in conjunction with the meaning of the text in its context,particularly for constitutions such as the Charter of the UN, at the sametime playing down the importance of actual intention and the relevanceof the travaux preparatoires. This approach would seem to be in keepingwith the provisions of the Vienna Convention on the Law of Treaties. Healso, perhaps in conflict with what is stated in the Vienna Convention onthe Law of Treaties, did not attach much significance to the subsequentpractice of the organization. He stated:

Moreover the intention of the parties at the time when they entered into anengagement will not always-depending upon the nature and subject-matter ofthe engagement-have the same importance. In particular in the case of amultilateral treaty such as the Charter the intention of its original Members,except such as may be gathered from its terms alone, is beset with evidentdifficulties. Moreover, since from its inception it was contemplated that otherStates would be admitted to membership so that the Organization would, in theend, comprise 'all other peace-loving States which accept the obligationscontained in the Charter' (Article 4), the intention of the framers of the Charterappears less important than intention in many other treaties where the partiesare fixed and constant and where the nature and subject-matter of the treaty isdifferent ...

In the interpretation of a multilateral treaty such as the Charter whichestablishes a permanent international mechanism or organization to accomplishcertain stated purposes there are particular considerations to which regardshould, I think, be had.

Its provisions were of necessity expressed in broad and general terms. Itattempts to provide against the unknown, the unforeseen and, indeed, theunforeseeable. It was intended to apply to varying conditions in a changing and

Sl See, e.g., Polish Postal Service in Danzig, PClY, Series B, No. I I, at p. 39; Second Admissionscase, lCJ Reports, 1950, at p. 8; First Admissions case, ICY Reports, 1947-8, at p. 63.

54 Ie] Reports, 1962, at p. 184.



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evolving world community and to a multiplicity of unpredictable situations andevents. Its provisions were intended to adjust themselves to the ever changingpattern of international existence. It established international machinery toaccomplish its stated purposes.

It may with confidence be asserted that its particular provisions should receivea broad and liberal interpretation unless the context of any particular provisionrequires, or there is to be found elsewhere in the Charter, something to compela narrower and restricted interpretation.

The stated purposes of the Charter should be the prime consideration ininterpreting its text.

Despite current tendencies to the contrary the first task of the Court is to look,not at the trauaux preparatoires or the practice which hitherto has been followedwithin the Organization, but at the terms of the Charter itself. What does itprovide to carry out its purposesj"

judge Spender gave its rightful place to the object and purpose of aconstitution such as the Charter, placing it on the same threshold as theplain and ordinary meaning, and also was correct in reducing theimportance of the preparatory work. However, he may have erred inde-emphasizing the role played by subsequent practice.

(i) The natural and ordinary meaning in context. As already stated,ascertainment of the natural and ordinary meaning in context has beenaccepted by the PClj and ICj as its cardinal rule of interpretation. In theSecond Admissions case the IC] stressed that the natural and ordinarymeaning must be given to words 'in the context in which they occur' andnot in the abstract.P" Hence, it is not a narrow and quasi-literalinterpretation of words, phrases and articles, taken in isolation, that isenvisaged, but one related to the constitution as a whole. 57 In both theFirst Admissions case and the Second Admissions case the Court appliedthe principle in interpreting the provisions of the Charter relating toadmission of members. In the IMCO case, where the Court had tointerpret the term 'the largest ship-owning nations' in the IMCOconstitution, the fundamental principle that words must be read 'in theirnatural and ordinary meaning, in the sense which they would normallyhave in their context' 58 was clearly stated. There was no disagreement onthe Court that this principle was applicable in the first place. The Courtalso made it clear that the rule meant that the whole of the text must bepresumed to have some significance, so that an interpretation whichwould render part of it redundant was to be rejected.s? However, it is notin cases where this principle can be successfully applied that differences

55 Ibid., at pp. 184-5.56 ICJ Reports, 1950, at p. 8. The same basic principle was affirmed in the First Admissions case,

ICY Reports, 1947-8, at p. 63.57 Fitzmaurice, op. cit. above (n. 38), at p. 52.58 lCJ Reports, 1960, at p. 159.59 Ibid., at p. 160.



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of opinion usually arise. It is when other considerations are involved thatthe principle of the natural and ordinary meaning in context receivessome qualification.

(ii) The object and purpose-teleology. It is not surpnslng that inkeeping with the provisions of the Vienna Convention on the Law ofTreaties, even before that convention was drafted, the ICJ indicated thatthe principle underlying the text or the object and purpose of the treatymust be considered together with the context in giving the text 'a naturaland ordinary meaning' .60 For instance, the issue in the IMCO casewhether the term 'largest ship-owning nations' meant nations having thelargest registered tonnage of beneficially owned ships or simply thelargest registered tonnage regardless of beneficial ownership was decidedin accordance with this prescription by focussing on the need to ensuremaritime safety as the purpose of the provision concerned. Consequentlythe latter meaning was selected.

In the IMCO case the term 'largest ship-owning nations' may havebeen ambiguous or unclear, thus triggering a serious consideration of theobject and purpose of the constitution. It has been said that objects andpurposes may be considered only when the meaning of a text isambiguous or where giving the text its natural and ordinary meaningwould lead to an unreasonable result.?' However, while in most cases ofreference to objects and purpose as such to establish a meaning it may bepossible to establish one of these conditions for the incidence of theexception, there may be circumstances where the interpreter goes moredirectly to the object and purpose because it is essential for the efficientfunctioning of the organization that a meaning established in thismanner be adopted. This was apparently what was done in the casediscussed above concerning the valuation of the IBRD's capital. Thismay also be the case where constitutional powers are implied. These aresituations in which what appears to be the ordinary or natural meaninghas been modified in the light of the objects and purpose of theconstitution.

It has been said that the principle of effectiveness has two aspects.'?The first embraces the rule that all provisions of a treaty must besupposed to have been intended to have significance and be necessary to

bo Ibid .• at pp. 160-1.b. See Fitzmaurice, op. cit. above (n. 38). at p. 345. There are some other cases decided

particularly by the PCIj in which the objects and purposes of the constitution were used as a basisfor interpreting it: see Nomination of the Netherlands Workers' Delegate case. PCIJ. Series B. No. I.

at pp. 23. 25; European Commission of the Danube case. PClJ. Series B. No. 14, at p. 80; Competenceof the ILO to Regulate Conditions of Labour ill Agriculture case, PClJ. Series B. Nos. 2 and 3, at pp.23 and 57; separate opinions in the Second Admissions case, ICY Reports, 1950, at p. 18 per JudgeAlvarez, at p. 23 per Judge Azevedo; the Namibia case, ICY Reports, 197 1• at pp. 30,50. See also theAerial Incident case, ICY Reports, 1959, at p. 139·

1>2 See Berlia, 'Contribution a l'interpretation des traites', Recueil des cours, 114 (1965-1), at pp.306 fr.; Thirlway, 1oc. cit above (n. 47), at p. 44·



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convey the intended meaning so that an interpretation which reducessome part of the text to the status of a pleonasm or mere surplusage isprima facie not acceptable-e-Ye regIe de l'effet utile'. The second coversthe rule that the instrument as a whole, and each of its provisions, mustbe taken to have been intended to achieve some end and that aninterpretation which would make the text ineffective to achieve the objectin view is prima facie suspect-CIa regIe de l'efficacite',

The first rule is really subsumed under the rule of the ordinary andnatural meaning contextually derived. It is the second rule that pertainsto effectiveness and involves giving the object and purpose an importantplace in the interpretative technique. The maxim ut res magis valeat quampereat also accurately captures the spirit of the principle of effectiveness.

The doctrine of implied powers is a good example of the application ofthe teleological principle to the interpretation of constitutions, evenwhere the contextual ordinary and natural meaning may lead to adifferent result which may not be unreasonable in the circumstances.What this doctrine tries to do is provide for a liberal and progressiveapproach to the powers of organizations even though constitutions maybe silent on the particular powers concerned, in order to enable organizations effectively and purposefully to carry out their functions. Threeexamples of how powers have been implied may be given. In theReparation case the power of the UN to espouse claims on behalf of itsstaff members was in issue. The ICJ stated the general principle asfollows:

Under international law, the Organization must be deemed to have thosepowers which, though not expressly provided in the Charter, are conferred uponit by necessary implication as being essential to the performance of itsduties.f"

In consequence it concluded:

Upon examination of the character of the functions entrusted to the Organization and of the nature of the missions of its agents, it becomes clear that thecapacity of the Organization to exercise a measure of functional protection of itsagents arises by necessary intendment out of the Charter.?"

In the Personal Work of Employers case the issue was whether the ILOhad an implied power to regulate the work of employers. The PCIjconcluded that in the constitution of the fLO the framers

clearly intended to given the ILO a very broad power of co-operating with themin respect of measures to be taken in order to assure humane conditions of labourand the protection of workers. It is not conceivable that they intended to preventthe Organization from drawing up and proposing measures essential to the

bJ ICJ Reports, 1949. at p. 174.b4 Ibid .• at p. 182.



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accomplishment of that end. The Organization, however, would be so preventedif it were incompetent to propose for the protection of wage-earners a regulativemeasure to the efficacious working of which it was found to be essential toinclude to some extent work done by employers."

In the Effect of Awards case the ICj had to decide, among other things,whether the UN had the implied power to establish an administrativetribunal to settle disputes between the organization and its staff. TheCourt held that

the power to establish a tribunal, to do justice as between the Organization andthe staff members, was essential to ensure the efficient working of the Secretariat ... Capacity to do this arises by necessary intendment out of the Charter.?"

Indeed, though the issue of implied powers of organizations has beenbrought before international tribunals on several occasions,"? it is only inthe Competence of the fLO to Regulate Agricultural Production case'" thateither court has refused to imply a power, the power in the case being thepower of the ILO to regulate agricultural production.

Both the PC I] and the IC] have stated that the power implied mustbear some relationship to the functioning of the organization, theperformance of its duties, or the achievement of its purposes. Thus, thedoctrine of implied powers is not applied without some constraints. Itcannot be used as a tool to give an organization power to act as it maywant or to assume powers capriciously.

Around the principle of effectiveness there appear to have been built afew negative presumptions of interpretation.v? For instance, it has beenjudicially stated, though not by the ICj, that there is no presumption thatthe sovereignty of States should not be restricted.7° It has also beenimplied in the decision of the ICj that the delegated nature of a power

6S PCI], Series D, No. 13. at p. 18.1.6 IC] Reports, 1954. at p. 57./>7 See, e.g., apart from the cases discussed above, the European Commission of the Danube case,

PCl], Series D. No. 14. at p. 64; the Expenses case. IC] Reports. 1962, at pp. 159, 167-8.611 PCl], Series B. NO.3. A 'primary result or purpose' test was used, but this has never been

applied thereafter./><) See the discussion in E. Lautcrpacht, loc. cit. above (n. 52), at pp. 432 ff.70 Sce the Personal Work of Employers case, PCl]. Series B, No. 13. at p. 22; the European

Commission of the Dam/be case, PCI], Series B, No. 14. at p. 36. Contra, apparently, the UNESCOConstitution case, A nnual Digest I 16 (1949), at p. 336, which was a decision by a special arbitraltribunal established to interpret a provision of the UNESCO constitution and in which the referenceto the restriction of sovereignty was made in a subsidiary manner after the interpretation adoptedhad been arrived at for different reasons. See also the legal opinion given to the UN Secretariat onthe interpretation of Article 19 of the Charter by the Legal Counsel, where the statement was madeafter a teleological interpretation had already been given of the article that in case of doubt theprovisions of the Charter 'should be interpreted so as to be as little burdensome' to the memberStates as possible: UN Juridical Yearbook, 1983, at p. 169.



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does not require that it be restrictively interpreted." There may also begood grounds for limiting the relevance of the maxim expressio unius estexclusio alterius, especially in the sphere of implied powers.?" On theother hand, there are situations in which the maxim has been invoked torestrict discretionary powers, among other things,">

(iii) Subsequent practice. The Vienna Convention on the Law ofTreaties gives subsequent practice a substantive place in the ascertainment of the ordinary and natural meaning, in so far as it states thatsubsequent practice is to be taken into account in establishing suchmeaning. While subsequent practice may support the ordinary meaningof a text, it is rarely that such practice could alter what appears to be theordinary meaning of a text, where the text is not ambiguous, as thiswould amount to amendment. Where a text is ambiguous, subsequentpractice could help to establish one of the several meanings all of whichmay be described as ordinary. The position may be the same where theordinary meaning leads to an unreasonable result. On the other hand,where a text is silent and subsequent practice is used to fill in lacunae, thetext is virtually altered when such practice is invoked in interpretation,but this is a permissible use of practice.

In most of the decided cases subsequent practice has been resorted toin order to support a meaning already selected for other reasons. In thissituation the practice is of probative value. In the Second Admissions caseit was said that the organs responsible under the Charter for theadmission of members 'have consistently interpreted the text in the sensethat the General Assembly can decide to admit only on the basis of arecommendation of the Security Council'.74 The evidence of practice ofthe GA and the SC was used to support an interpretation alreadyadopted for other reasons.

However, in the most recent constitutional advisory opinion of the ICjin the Namibia case, the Court used the practice of the Security Counciland the General Assembly directly to give meaning to provisions of theCharter, where, it would appear, there were gaps in the language.

7' See, e.g., the Reparation case; the Effect of Awards case. In both these cases the Court implicitlydisagreed with judge Hackworth, who dissented: ICY Reports, 1949, at p. 198, and ICY Reports,1954, at p. 80.

72 See by implication the Effect of Awards case (1954), the Expenses case (1962) and the Namibiacase (1971). In the first case judge Hackworth, dissenting, stated that the maxim should apply inorder to limit the powers of the GA of the UN, whereas the Court decided that such powers werenot limited in the way desired by judge Hackworth.

7:1 See the First Admissions case, ICY Reports, 1947-8, at pp. 57, 62-3; the IMCO case, ICYReports, 1960, at p. 1So.

H IC] Reports, 1950, at p. 9. See also, e.g., the Competence of the ILO to Regulate Conditions ojLabour in Agriculture case, PClY, Series B, Nos. 2 and 3, at pp. 38-41; the Personal Work ofEmployers case, PClY, Series B, No. 13, at pp. 19-20; the European Commission of the Danube case,PClJ, Series B, No. 14, at pp. 57-8; the First Admissions case, ICY Reports, 1947-8, at p. 63; theUNESCO Constitution case, Annual Digest, 16 (1949), at p. 335; the [MCO case, ICY Reports, 1960,at pp. 167-8; the Expenses case, ICY Reports, 1962, at pp. 160 ff.



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Abstention by a permanent member of the SC was held not to constitutea bar to the adoption of resolutions under Article 27(3) of the Charter, aswas evidenced by presidential rulings and the positions taken by members of the SC, particularly the permanent members;" which constitutedthe practice. On the issue whether the GA had competence in the sphereof mandates, it was held that the refusal of the GA to establish atemporary subsidiary organ to assist in the supervision of mandates didnot mean that under the Charter it had no power to supervise mandates,because the refusal did not amount to a collective pronouncement thatsuch power had been abdicated.?" Clearly, the fact that the GA hadcontinued to exercise supervisory functions over mandates supportedsuch an interpretation. In this case the practice was constitutive of aninterpretation.

In most of the decided cases it was possible to identify a recurrence orrepetition of conduct on the part of the organ which constituted thepractice to which reference was made. However, in the EuropeanCommission of the Danube case the practice relied upon occurred only onone occasion. In the IMCO case the practice had occurred once but thiswas the only relevant occasion. In both these cases the practice was notrelied on by itself to establish a meaning but was only used as evidenceof a meaning clearly determined by other means. Yet there is no clearindication in the jurisprudence whether practice must in essence consistof repeated conduct, although in the Namibia case where practice wasrelied on to establish a meaning the relevant practice had been repeatedover a long period.

There is no mention further in the jurisprudence of whether thereshould be a conviction that the practice pursued is obligatory,77 as isrequired for the formation of customary law in general international law.In the case of the practice of an international organization the conduct inissue is generally that of an organ of the organization which mayor maynot be determined by a sense of obligation. It would seem that in theabsence of a jurisprudential analysis in the cases, the practice required toestablish the meaning of a provision of a constitution would generally notbe based on a sense of obligation but arise from the exercise ofdiscretionary power. What is important for the practice is that theconduct has been pursued by the organ in the belief that it was actinglawfully under the constitutive instrument. The opinio juris in the case isusually not a sense of obligation but a sense that the practice or conductis lawful or not unlawful under the governing provisions of the constitution.

7S ICY Reports. 1971. at p. 22.

71> Ibid .• at p. 36. See also the case mentioned above of the interpretation of Article 14 of theStatute of the ICJ by the Security Council where practice was used to interpret a text.

77 But see the discussion by Judge Fitzmaurice in a separate opinion in the Expenses case, ICYReports, 1962. at p. 201.



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The practice is that of the organ concerned. While the organ isgenerally composed of representatives of member States, what is relevantis not the views of the members of the organ per se but the resultingconduct of the organ taken as an entity in itself. The size of the majorityin favour of the practice should not be relevant provided the conductconstitutes an act of the organ as a body and is attributable to theorgan.

As for the juridical basis of practice.?" one explanation, perhaps themost attractive, is that practice as a means of interpretation of aconstitution has an independent juridical basis. Practice becomes relevant and may be resorted to simply because it is the practice of theorganization. However, a case may be made to base the use of subsequentpractice in the interpretation of constitutions on agreement or consent,although this may be implied. The argument is that since the parties tothe constitution, whether they are original parties or become partiessubsequently, have agreed to the mechanisms of decision-making by theorganization, they have also agreed to accept the decisions of theorganization taken under the constitution, even though they have votedagainst or may disagree with such decisions, as reflecting proper conducton the part of the organization. Hence that a member State is in anopposing minority and does not immediately agree to a decision involving practice is of no consequence, because ultimately the memberconcerned had agreed, by implication and directly at the time it becamea party to the constitutive treaty, to accept the decision as reflecting thewill of the organization, even though it disagreed with it at the time it wasmade.

(iv) Intention of the parties-travaux preparatoires. The actual intention of the parties at the time the constitution of an organization wasformulated, as evidenced in the trauaux preparatoires, has sometimesbeen sought in attempts to interpret constitutional texts. On the whole,however, intention has not been regarded as relevant in any importantway for the interpretation of such texts. The Vienna Convention on theLaw of Treaties gives a subsidiary place to the ascertainment of intentionas a means of interpretation. It is not to be used more or less unless allother means fail. Judge Spender made the point clearly in his separateopinion in the Expenses case that intention was less important in the caseof a constitution than of other treaties, particularly because the partiesare not fixed and constant and because of the nature and subject-matterof the treaty. 79 Tribunals and other organs have in the course ofinterpreting constitutions referred only infrequently to the trauaux-

78 See the interesting discussion in E. Lauterpacht, loc. cit. above (n. 52), at pp. 460 ff. He is of

the view that agreement, acquiescence and estoppel are not adequate bases for practice. See also thedifficulties raised by Judges Spender and Fitzmaurice in the Expenses case: ICY Reports, 1962, atpp. 191, 192, 201.

79 ICY Reports, 1962, at p. 18S.



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preparatoires and the intentions of the parties. In most cases thepreparatory work has been resorted to in a limited manner and generallyto support an interpretation already arrived at by other means. This is soalthough in the First Admissions case the ICJ did appear to give currencyto the view that the task of interpretation was to ascertain the intentionof the parties, when it said that Article 4(1) of the Charter 'clearlydemonstrates the intention of its authors to establish a legal rule ... '.80

While establishing the meaning of a text may be described as ascertainingan 'intention', perhaps as reflected in the text, in the interpretation ofconstitutions particularly I interpretation assumes a broader function.

In fact, resort to the travaux preparatoires by international courts ininterpreting constitutions, if such resort is made at all, has generally beennot to ascertain a meaning as such but to support a meaning alreadyestablished. Indeed, in the First Admissions case'" the ICj did not resort tothe preparatory work because it felt that the text was sufficiently clear, inspite of what it had said earlier about the significance of intention. In theReparation case'? and the Second Admissions case it was not resorted to atall, the Court stating in the latter case that because the text was clear,reference to the preparatory work was not permissible."> In some of thecases where the preparatory work was not used as a tool of interpretation,the refusal of the court to resort to it is underscored by the fact that judgeswho wrote separate or dissenting opinions may have done SO.84 In theUNESCO Constitution case the tribunal, after denying the relevance ofthe preparatory work where the text was clear and the meaning of the textcould otherwise be established, used the preparatory work only to supportits interpretation of the text by finding that there was nothing therein tocontradict that interpretation. Rs Similarly, in the IMCO case the preparatory work was used to confirm an interpretation established by othermeans, though such work was referred to in detail, 86

An 'agreed interpretation' of a text which is reflected in the travauxpreparatoires stands on a different footing. There may be circumstancesin which such interpretations are authoritative interpretations of the text,as was pointed out by the four-judge minority in the First Admissions

80 ICY Reports, 1947-8, at p. 62.'" Ibid., at p. 63.82 ICY Reports, 1949, p. 174.II) ICY Reports. 1950. at p. 8. For cases in which the preparatory work was not referred to at all

sec, e.g., the Competence of the fLO to Regulate Conditions of Labour in Agriculture. PClY, Series B.Nos. 2 and 3, at p. 41; the Effect of Awards case. ICY Reports. 1954. p. 47; the Expenses case, ICYReports. 1962, p. 151; the Reparation case, ICY Reports, 1949. p. 174.

84 Sec, e.g., Judge Hackworth (dissenting) in the Effect of Awards case, ICY Reports 1954, at pp.78 ff.; Judges Fitzmaurice (separate), Winiarski (dissenting) and Moreno Quintana (dissenting) inthe Expenses case, ICY Reports, 1962, at pp. 209 ff., pp. 230 ff, and pp. 247 ff., respectively; JudgeAlvarez (dissenting) in the First Admissions case, ICY Reports, 1947-8. at pp. 67 ff.

85 A""ual Digest, 16 (1949). at pp. 336 ff.8b ICY Reports, 1960, at pp. 161 ff.



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case'" and dissenting Judge Alvarez in the Second Admissions case.88 Theissue was litigated in the European Commission of the Danube case89

where, however, it was held that an interpretation to be found in thepreparatory work did not have the status of an 'agreed interpretation'.

The approach taken by international courts and tribunals to preparatory work, which is to minimize its importance for interpretation, notonly is in keeping with its relegation to the status of a subsidiary resourcein the Vienna Convention on the Law of Treaties but is justified by goodpolicy reasons. There is no better statement of the reasons for thereduced importance of the preparatory work in the interpretation ofconstitutions of international organizations than that of Judge Alvarez inthe Second Admissions case:

It will be necessary in future-unless in exceptional cases-when interpretingtreaties, even those which are obscure, and especially those relating to international organizations, to exclude the consideration of the travaux preparatoires,which was formerly usual. The value of these documents has indeed progressively diminished, for different reasons; (a) they contain opinions of allkinds; moreover, States, and even committees, have at times put forward someidea and have later abandoned it in favour of another; (b) when States decide tosign a treaty, their decision is not influenced by the travaux preparatoires, withwhich, in many cases, they are unacquainted; (c) the increasing dynamism ofinternational life makes it essential that the texts should continue to be inharmony with the new conditions of social life.

It is therefore necessary, when interpreting treaties-in particular, the Charter of the United Nations-to look ahead, that is, to have regard to the newconditions, and not to look back, or have recourse to trauaux preparatoires. Atreaty or a text that has once been established acquires a life of its own.Consequently, in interpreting it we must have regard to the exigencies ofcontemporary life, rather than to the intentions of those who framed it.?"

While the reason that parties to constitutions may be unaware of what isstated in the preparatory work when they become parties to suchconstitutions may be questioned, in so far as they may be presumed to beaware of what is in the preparatory work at whatever time they becomeparties, because of its relevance as background material, the other reasonsgiven are perfectly valid.

87 ICY Reports, 1947-8, at p. 87.88 ICY Reports, 1950, at p. 15.89 PClY, Series B, No. 14, at pp. 33 If. On 'agreed interpretations' see the discussion in E.

Lauterpacht, loco cit. above (n. 52), at pp. 444-5.90 ICY Reports, J950, at p. 18. See also Judge Alvarez in the First .Admissions case, ICY Reports,

1947-8, at p. 68, where he stated: 'Moreover, the fact should be stressed that an institution, onceestablished, acquires a life of its own, independent of the elements which have given birth to it, andit must develop, not in accordance with the views of those who created it, but in accordance with therequirements of international life.' In both cases Judge Alvarez dissented, but his views on the useof the preparatory work were not in conflict with the Court's.



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(V) Other considerations. It is clear that instruments such as thosementioned in the Vienna Convention on the Law of Treaties, agreed on,before or after the conclusion of the constitutive treaty, are relevant tothe interpretation of the treaty. In the same way the presumption that aconstitution was not intended to be in conflict with general internationallaw, which is referred to in that convention, is relevant to the interpretation of constitutional texts.?'

(vi) Evaluation. The practice of international courts and organs doesnot seem to have departed significantly from the prescriptions to befound in the Vienna Convention on the Law of Treaties but, on the otherhand, it has had a tendency to follow the pattern established for treatiesin general by that instrument. What is important and singular for theinterpretation of constitutional texts is that emphasis has been placed onthe principle of effectiveness as a manifestation of the relevance of theobject and purpose of an instrument, and on subsequent practice, asimportant elements in the identification of meaning, especially wherethere are lacunae, though in principle interpreting organs have generallypaid homage, as they should, to the principle of the ordinary meaning. Atthe same time, for good reason, the preparatory work has been downplayed because the actual intention of the framers may be difficult toidentify, even if there was complete agreement on a meaning, and such anintention may not be critically relevant for reasons clearly seen to bepertinent.

The natural and ordinary meaning may in certain circumstances bemodified in the light of the principle of effectiveness, as happened in thecase of the interpretation by the Executive Directors of Article I I, section2, of the IBRD's Articles of Agreement. International organs would becautious in doing this as the contextual natural and ordinary meaningenjoys some sanctity, but it is not inconceivable that such organs maytake that course of action ut res magis valeat quam pereat. In the case ofconstitutions which, so to speak, have a life of their own, this is not to bediscouraged, provided an attempt is made to respect the ordinary andnatural meaning and not vandalize a text, where this is possible. In thecase of constitutions there is more reason than in other cases to give effectto the principle of effectiveness, even where there is no ambiguity orpossibility of an unreasonable result, because positive considerations ofpolicy may require such an approach to be taken. There is every reasonto treat constitutions as developing instruments.

Subsequent practice has been used in interpretation more selectively.It has sometimes happened that an explicit text has been modifiedbecause of subsequent practice, as in the case of the interpretation ofArticle 14 of the ICJ Statute by the Security Council, but this wouldoccur less frequently. Practice has generally been used to help a

<)1 See, e.g., the Namibia case,lCy Reports, 1971, at pp. 31,41.



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constitution to evolve where there is ambiguity, vagueness or a gap in theconstitutional text, rather than to defy clear prescriptions. Practice isthus a mechanism for purposeful and agreed evolution.

The principles of effectiveness and subsequent practice have becomeforceful elements in constitutional interpretation in particular.

B. DECISIONS OF ORGANS

The decisions of deliberative, legislative and executive organs oforganizations may have to be interpreted either by the organs themselves,by other organs or by international or municipal tribunals. For example,the decisions of the GA or SC relating to peace-keeping may fall into thiscategory. The By-Laws of the IBRD are another example of suchdecisions. In 1982 a resolution of the GA relating to the UN Council forNamibia was the subject of interpretation before an organ of the UN.The Legal Counsel of the UN gave an opinion, which was followed, inwhich he advised that because the resolution conferred a representativefunction on the Council, it had the power to conclude contracts on behalfof Namibia." A special example of such decisions is the legislationrelating to employment of staff members of international organizationswhich may have to be interpreted most frequently by internationaladministrative tribunals.'?

In the interpretation of the decisions of organs which are clearly of adelegated nature, the principles of interpretation used will be similar tothose used in the interpretation of constitutional texts, though there mayhave to be a change in emphasis and priorities.

Generally, the rule of the ordinary and natural meaning in context isgiven priority. However, as in the case of the GA resolution setting upthe UN Council for Namibia referred to above, the principle ofeffectiveness, in the absence of a contrary indication, would be used ininterpretation. There it was applied to imply a power. It is difficult toconjecture how far the preparatory work would be regarded as relevant,though in the case of decisions such as these it may be argued that thereis reason legitimately to refer to them more frequently, because theintention of the framer may be more relevant. But this argument maylack cogency, if such decisions are regarded as objective texts that have anexistence of their own, independent of their creators. Further, therelevant discussions may be unhelpful because they show inconclusiveness or a variety of opinions-more so than in the case ofthe preparatorywork of constitutional texts.

Subsequent practice poses some problems. Since decisions of organs

92 See the opinion of the Legal Counsel of the UN of 14 April, 1982: UN Juridical Yearbook,1982, pp. 164- 5.

93 This will be discussed below in Section C.



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are of a delegated nature, it is doubtful how much relevance practice assuch will have. While practice may be used to fill in gaps or even resolveambiguities, it is doubtful whether its use can be extended beyondthis.

There may be certain presumptions which are applicable in the case ofthese decisions. It will be recalled that the Legal Counsel of the UNexpressed the opinion, in relation to the interpretation of Article 19 of theCharter to the Secretariat, that in case of doubt Charter provisionsshould 'be interpreted so as to be as little burdensome to the Statesparties as possible' .94 This presumption could apply a fortiori to decisions of organs. It will be noted that the presumption is applicable in caseof doubt. Another presumption applicable is that decisions of organsmust be interpreted so as to conform to the constituent instrument andnot to conflict with it. It goes without saying that, as in the case of theconstituent instrument, subsidiary decisions must be construed in thelight of general international law, particularly jus cogens.

C. LEGISLATIVE INSTRUMENTS RELATING TO EMPLOYMENT

Legislative instruments relating to employment are decisions relating toemployment of the superior deliberative organ of an organization, StaffRegulations, Staff Rules (generally issued by the executive organ) andlike instruments having a legislative status. International administrativetribunals (lATs) are called upon to apply these in disputes betweenorganizations and their staff members and may then have to interpretthem.?"

The general approach to these instruments by IATs has been toimplement a textual approach tempered with a teleological approach.The ordinary meaning of words taken in context has most often beenadopted.?" Sometimes the purpose of the text has specifically beeninvoked in interpretation. Thus, in Maugis." where a text which referredto the taking of home leave every alternate year was in issue, the term'every alternate year' was interpreted by reference to the purpose of thestaff rule. Maxims such as expressio unius est exclusio alterius have beenapplied in the interpretation of texts.?" The basic approach taken hasbeen similar to the technique of interpretation of constitutional texts.

9i UN Juridical Yearbook, 1983, pp. 167--Q: opinion of 26 October 1983.95 See, e.g., Salle, Decision No. 10, WEAT Reports, 1983. Part I.')b See, e.g., Repond, ILOAT judgment No. 790 (1986) (WIPO); Weihs (No.2), ILOAT

judgment No. 854 (1987) (EPO); Nesic (No.7), lLOAT judgment No. 913 (1988) (lLO); Diallo,ILOAT judgment No. 962 (1989) (EPa); Villella A., OASAT judgment No. 82 (1985); DecisionsNos. 174 to 180, NATO Appeals Board (1985).

97 ILOAT Judgment No. 945 (1988) (ESO). See also, e.g., Benze (No.7), ILOAT judgment No.926 (J 988) (EPO).

')H See, e.g., Nowak, ILOAT judgment No. 975 (1989) (EPa).



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However, especially in the case of those rules which are formulated bythe executive organ rather than those established by the deliberativeorgan, the intention of the framers of the rule may be relevant sometimes,particularly if a reference to the meaning in context and taking intoaccount the object and purpose of the text is not fruitful. But this seemsto be a last resort and not initially invoked.

On occasion, especially where there are gaps, practice has been used tointerpret texts. Thus, the content of an indemnity on termination ofservice has been determined by practice, irrespective of what the textactually said.:" What amounts to practice may be somewhat stricter andhave more limitations in the case of instruments of this kind, however, inparticular as regards the requirement of opinio juris.r"' It is clear thatpractice has been used to fill in gaps.'?' But it could be used to interpreta text where the meaning is not clear. Thus, in Schumann the LNTinterpreted a text relating to pension benefits by reference, among otherthings, to the acknowledged practice of the administrative board of thePension Fund of the League of Nations of recognizing that some staffmembers who did not have more than three years' service could receivebenefits.':" There are even cases in which tribunals have held thatadministrative practice could legitimize practices which were to thedisadvantage of staff or curtailed their rights which already existed,though they are less frequent and seem generally to have been confinedto the UNAT thus far. In DUpuylOJ the UNAT recognized that there wasa long-standing practice on the part of the administration of inferring anabandonment of post from unauthorized absences, while such an inference was permitted also by the implicit recognition of this method oftermination of service by the Staff Regulations. In certain instancestribunals have held that a practice could not as such modify the writtenlaw, as opposed to interpret it. In Broemser'r: the WHAT held that thepractice of deviating from evaluation procedures required by a PersonnelManual Statement of the World Bank could not be recognized, becausethe Bank was bound to adhere to established procedures from which itcould not deviate, unless the form of practice had been embodied in aStaff Rule or otherwise been made a matter of public record. In Leger?"the ILOAT took a similar view in regard to a practice of the administrative authority relating to the place of the applicant's residence. Thetribunal said:

99 See Cachelin, fLOAT judgment No. 767 (1986) (ILO).100 See the discussion in Amerasinghe, Tire Law of the International Civil Seroice, vol. 1 (1994),

pp. 160 ff.101 See de Merode, Decision No. I, WBAT Reports, 1981.102 LNT Judgment No. 13 (1934).103 UNAT judgment No. 174 (1973). See also Mendez, U~AT judgment No. 268 (1981).104 Decision No. 27, WBAT Reports, 1985- See also va" Stallffe"berg et al., Decision No. 38,

WBAT Reports, 1987, Part I.lOS fLOAT judgment No. 486 (1982) (PAHO).



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Such statements or practice often relate, as in this case, to the way in which theDirector intends to administer a staff rule and thus clarify and amplify it. Butjust as a staff rule must not conflict with the staff regulation under which it ismade, so a statement of practice must not conflict with the rule which it iselaborating. Staff Rule 460 mandates that the place determined at the time ofappointment should be recognized through the service. This forbids the changeof residence which the complainant is asking the Tribunal to order.':"

On the other hand, both the ICj'°7 and the ILOATl08 recognized thatthe practice in UNESCO of treating fixed-term contract holders as beingentitled to be considered for renewal of their contracts was a source oflaw, even though it was categorically in contradiction to the provisionsboth of the contracts themselves and the Staff Regulations, which statedthat upon expiry the contracts came to an end without prospect ofrenewal.

These cases raise the very important question when administrativepractice can modify the written law of the organization. No serious doubthas been raised about the proposition that such practice cannot overridethe constituent treaty of the organization. 1°9 However, in regard to StaffRegulations and Staff Rules or their equivalent, the cases referred toabove reveal some conflicting views. The practice not recognized inBroemser worked to the disadvantage of staff members. Thus, it may bepossible to conclude that certainly those practices which are to thedisadvantage of staff, in that they take away rights given by the writtenlaw, cannot override the written law. As for practices which benefit thestaff, the cases show no uniformity. The ICJ and the ILOAT have takenthe view that in regard to the renewal of fixed-term contracts practice canoverride the written law, while in Leger the ILOAT thought that apractice which contradicted the written law on the determination ofresidence could not override the written law. The decisions are difficultto reconcile. Short of concluding that Leger is a bad decision, because ofthe weight of authority particularly of the ICJ, it may be necessary, whileaccepting in general the view of the IC} and the ILOAT in the othercases, to leave open the possibility that in exceptional situations the viewtaken in Leger will be applied. Basically, the view taken by the ICJ andthe ILOAT in the earlier cases seems to be a reasonable one, on theunderstanding that it applies to practices which work to the benefit ofstaff members.

Further, there are some particular presumptions that apply in theinterpretation of these texts. International law, for example, has been

lob lbid., at p. 6.107 Judgments of the ILOAT case, ICY Reports, 1956, p. 77 at p. 91.108 Duberg etc., ILOAT judgments No. 17-19 and 21 (1955) (UNESCO). See also, e.g., Brocard,

ILOAT judgment No. 676 (1985) (FAD), at pp. 6-7; Rosetti, I LOAT judgment No. 910 (1988)(FAD), at pp. 6-7.

109 See Advocate General Roemer in vo" Lachmuller, CjEC Cases 43, 4S and 48/59, [1960] ECRp. 463 at p. 484.



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referred to in their interpretation, on the understanding that there isapresumption that they are in accord with international law."'" Whilegeneral principles of law have been used freely to interpret these texts, apresumption is generally applied whereby written texts are regarded asnot being in conflict with or overriding general principles of law. III Butthe practice of tribunals may go further. In general no problem arises inrelation to general principles of law, when they are applied in order tosupplement the written law or as being implied in the interpretation ofthe written law. Where the written law reflects a general principle of lawthere is no problem. However, it is possible that a conflict of sources oflaw could arise, where, for example, a general principle of law requiresthe administrative authority not to take a certain course of action but thewritten law expressly permits the administrative authority to take thataction, as where the written law expressly permits discriminatory treatment as between the sexes but general principles of law prohibit suchdiscrimination. There is not much authority on the point and there is anapparent conflict among authorities that do exist. In a few cases the viewtaken has apparently been that the written law takes precedence overgeneral principles of law.":" However, there is some authority for theview that general principles of law can be superior hierarchically to thewritten law of an international organization. 1 13

Apart from one decision (Mullan)1I 4 no decision has actually disregarded a general principle of law in the face of a conflicting written law.On the other hand, there is considerable evidence that, at least in somecases, general principles of law are superior to the written law. The factparticularly that tribunals tend to interpret written rules so as to conformto general principles of law and not conflict with them is proof that

110 See Stepczynski, UNAT judgment No. 64 (1956).II. See Amerasinghe, op cit. above (n. 100), vol, I, pp. 152 ff.In See di Palma Castiglione, LNT judgment No. I (1929),8t p. 3; Mu/lar" UNAT Judgment No.

162 (1972), where the general principle of law against discrimination was not applied in the face ofan explicit staff regulation permitting it.

"J First, there are some general principles of law, such as the rule against an amendment whichviolates acquired or essential rights, which are in fact applied even in the face of written rules to thecontrary: see de Merode, Decision No. I, WBAT Reports, 1981, and Amerasinghe, op. cit. above (n.100), vol. I, chapter 25. Secondly, the fLOAT said clearly in Ferrechia that the rule that a staffmember must be given the right to be heard before the disciplinary sanction is imposed on him,deriving as it does from a general principle of law, must be respected 'even where contrary provisionsexist': ILOAT Judgment No. 203 (1973) (ILO); see also Decision No.6. ELDO Appeals Board(1971). Thirdly, it is clear from the jurisprudence of tribunals that they do try their best to interpretthe written Jaw so as to conform to general principles of law and to establish that the written law doesnot violate general principles of law: see, e.g., Verdrager, fLOAT Judgment No. 325 (1977) (WHO);Haas, ILOAT judgment No. 473 (1982) (Eurocontrol); Andersei and others, CJEC Case 262/80,[1984] ECR p. 203; Samara, CJEC Case 266/83. [1985] ECR p. 189i Dauchy, UNAT Judgment No.492 (1990 ) .

"4 See the discussion in Arnerasinghe, op cit. above (n, 100), vol. I. chapter 22.



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OPEN INTERNATIONAL ORGANIZATIONS 2°9

tribunals do regard such principles as of special importance even Inrelation to the written law. I IS

1'5 The reasonable conclusion seems to be that, as regards the general principles of law of afundamental nature, they are superior hierarchically to the written law in particular and could,indeed, be the supreme source of law relating to the international civil service. On the other hand,clearly there are certain general principles which are not of such importance that they could not bemodified or negated by the written law or by a rule emanating from another source. The rule againstdiscrimination or equality of treatment and the principle that a staff member usually has a right tobe heard before a disciplinary sanction is imposed on him are examples of general principles of afundamental nature, as is the rule protecting acquired or essential rights.



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INTERPRETATION OF TEXTS IN OPEN INTERNATIONAL ORGANIZATIONS