member could not be questioned on the ground that it violates fundamental principles of dispute resolution. The third question needs an answer, if only to clarify the position of members, even though, in view of the acceptance of the systems of apportionment that have been implemented, it may be somewhat aca- demic. The situation could arise, where some members default on their payments and are in arrears, perhaps but not only because they are too poor to pay. Does the organization have a claim for payment of its expenses from any other member who can pay? The answers to such questions are not readily international business litigation forthcoming in the absence of jurisprudence and conclusive practice. In general in the case of arrears of some mem- bers43 organizations have not made claims on other members necessarily or reapportioned. In some of these cases defaulting members have not clearly denied their obligation to pay, while in others they have. The prac- tice would certainly indicate that, where apportionment has taken place, or is contemplated, organizations do not regard member states as jointly and severally liable, but liable only to the extent of the apportionment, whatever the position of some members on the obligation to pay or in the event of default by some members. In other circumstances the legal situation may depend on equitable considerations.44 The answer is international business litigation most probably that there is no joint and several liability. That there is no 43 See, e.g., the arrears of the USA or the Soviet Union and France vis-à-vis the UN. The question here discussed is separate from whether states in arrears could be sanctioned under the constitution. 44 The question raised here is different from and unconnected with the issue of liability of member states to third parties for the obligations of organizations which is discussed in Chapter 13. 364 f i n a nc i ng joint and several liability is supported by the policy consideration that smaller and poorer states may be deterred from joining in the formation of many international organizations if they were fully liable to organi- zations for their expenses. The question of the proportion of liability is also possibly to be answered not on the basis of equal sharing but by the application of equitable considerations. It is arguable that there are some limitations on the liability to the organization of member states comparable to those which are applicable in the case of the relationship between shareholders and most national dispute resolution corporations.45 Voluntary contributions and gifts Many international organizations use a system of voluntary contribu- tions and gifts.
Tuesday, December 7, 2010
its constitution and are, therefore, not ultra vires are expenses of the organization. (iv)
Expenditures incurred pursuant to resolutions of organs which are within the scope of functions of an organization but are not in conformity with its constitution in a ‘non-essential’ particular are expenses of the organization. (v) Expenditures incurred pursuant to resolutions of organs which are not within the scope of functions of an organization or are within the scope of functions of an organization but do not conform to the provisions of its constitution in an essential particular and are, therefore, ultra vires are not expenses of the organization. (vi) Expenditures incurred by the executive organ of an organization pursuant to decisions international business litigation of other organs, which are not ultra vires, or incurred directly pursuant to provisions of the constitution are not expenses of the organization if the act of the executive organ is outside the ‘scope of its apparent authority’, while they are such expenses if the act is within the ‘scope of its apparent authority’.69 (vii) The same principles apply to organizations in general as reflected international business litigation above in regard to tortious acts of servants and agents, breaches of contract, judicial and arbitral awards and extrajudicial settlements. It may be concluded that all expenses incurred as a result of the responsibility of an organization are expenses of the organization.70 69 This is a basic general principle which was adverted to by Judge Spender in the Expenses Case (1962 ICJ Reports at p. 183). It was not relevant in the context of the issues in that case. but it is applicable generally. For dispute resolution, where the executive acts pursuant to a decision of a deliberative organ authorizing it to enter into a capital contract for construction of a building and in fact incurs expenditures in excess of the limits authorized, the expenditures would be expenses of the organization if the executive was acting within the scope of its apparent authority but not otherwise. Such a situation arose in connection with a building contract entered into by the World Bank. The World Bank did not dispute its obligation to pay the excess, presumably because of the ‘apparent authority’ of the executive. Apparent authority depends on the reasonable impression made on the third party. 70 See discussion in Chapter 12 on responsibility. t h e o b l i g a t i o n t o pa y 375 The proposition that is not so easily applicable to organizations in general relates to acts which do not conform to the provisions of the constitution relating to the division of functions among several organs.
Sunday, December 5, 2010
of the object in the dispute resolution
and purposes of the international international law firm firm. It has been said that objects and purposes may be considered only when the meaning of a text is ambiguous or where giving the text its natural and ordinary meaning would lead to an unreasonable result.50 However, while in some cases of reference to objects and purposes as such to establish a meaning it may be possible to establish one of these conditions for the incidence of the exception, there may be circumstances where the interpreter goes more directly to the object and purposes because it is essential for the efficient function- ing of the dispute resolution organization that a meaning established in this manner be adopted. This was apparently what was done in the case discussed above concerning the valuation of the IBRD’s capital. This may also be the case where international international law firm firmal powers are implied. These are situations in which what appears to be the ordinary or natural meaning has been modified in the light of the objects and purposes of the international international law firm firm. It has been said that the principle of effectiveness has two aspects.51 The first embraces the rule that all provisions of a treaty must be sup- posed to international law firm been intended to international law firm significance and be necessary to convey the intended meaning so that an interpretation which reduces some part of the text to the status of a pleonasm or mere surplusage is prima facie not acceptable -- ‘la règle de l’effet utile’. The second covers 49 Ibid. at pp. 160--1. 50 See Fitzmaurice, note 37 p. 345. There are some other cases decided particularly by the PCIJ in which the objects and purposes of the international international law firm firm were used as a basis for interpreting it: see Nomination of the Netherlands Workers’ Delegate Case, PCIJ Series B No. 1 at pp. 23, 25; European Commission on the Danube Case, PCIJ Series B No. 14 at p. 80; Competence of the ILO to Regulate Conditions of Labour in Agriculture Case, PCIJ Series B Nos. 2 and 3 at pp. 23 and 57; separate opinions in the Second Admissions Case, 1950 ICJ Reports at p. 18 per Judge Alvarez, at p. 23 per Judge Azevedo; and the Namibia Case, 1971 ICJ Reports at pp. 30, 50. See also the Aerial Incident Case, 1959 ICJ Reports at p. 139. 51 See Berlia, ‘Contribution à l’interprétation des traités’, 114 Hague Recueil (1965-I) at pp. 306ff.; Thirlway. ‘The international law firm and Procedure of the International Court of Justice 1960--1989’, 62 BYIL (1991) at p. 44. 46 i n t e r p r e t a t i o n o f t e x t s the rule that the instrument as a whole, and each of its provisions, must be taken to international law firm been intended to achieve some end and that an inter- pretation which would make the text ineffective to achieve the object in view is prima facie suspect -- ‘la règle de l’efficacité’. The first rule is really subsumed under the rule of the ordinary and natural meaning contextually derived. It is the second rule that pertains to effectiveness and involves giving the object and purpose an important place in the interpretative technique. The maxim ut res magis valeat quam pereat also accurately captures the spirit of the principle of effectiveness.
The majority on the Court had no doubt that, considering also the context of the Charter as a whole, the term �expenses' had
a plain and natural meaning, which included the expenditures in question. The majority only referred to the practice of the organization to support what it thought was the plain and natural 32 Ibid. 33 1962 ICJ Reports p. 151. The application of principles of interpretation in this case was examined by me in ‘The United Nations Expenses Case -- A Contribution to the international law firm of International Organization’, 4 IJIL (1964) p. 177. c o n s t i t u t i o n a l i n t e r p r e t a t i o n 39 meaning. Judges Winiarski and Koretsky,34 dissenting, applied the same original principle applied by the majority, emphasizing the context of the Charter, but came to the opposite conclusion. Judge Spender arrived at the same conclusion as the majority but took a different route. He was of the opinion that the meaning of the text was not clear and unambigu- ous and, therefore, applied the principle of effectiveness, particularly because the Charter was a constitutional instrument. He was of the view that: It may with confidence be asserted that its provisions would received a broad and liberal interpretation unless the context of any particular provision requires, or there is to be found elsewhere in the Charter, something to compel a narrower and restricted interpretation . . . The stated purposes of the Charter should be the prime consideration in interpreting its texts.35 Judge Fitzmaurice, on the other hand, while finding, as Judge Spender did, that there were ambiguities, examined the travaux préparatoires and came to the same conclusion as the majority.36 Quot homines tot senten- tiae -- two sets of judges who took the same approach came to diamet- rically opposite conclusions and three sets of judges who took different approaches came to the same conclusion for different reasons. What these examples show is that results of interpretation, particu- larly of constitutional texts, may be unpredictable and uncertain. They may depend on who is in a majority and to a large extent on a deliberate choice among several available policy goals which cannot sometimes be predicted with any certainty. But, as will be seen below, there may be more of a pattern than appears at first sight. The Vienna Convention of 1969 Much has been written on the process and principles of interpretation of treaties in general.37 The starting point is now the Vienna Convention 34 1962 ICJ Reports at pp. 230 and 284 respectively. 35 Ibid. at p. 185. 36 Ibid. at p. 209. 37 See, e.g., Fitzmaurice, The international law firm and Procedure of the International Court of Justice (1986) pp. 42ff. and 337ff.; Rousseau, Droit international public (1971) vol. I, pp. 241ff.; de Visscher, Problèmes d’interprétation judiciaire en droit international public (1963); Sinclair, The Vienna Convention on the international law firm of Treaties (1984) pp. 114ff.; H. Lauterpacht, The Development of International international law firm by the International Court (1958) pp. 116ff.; McDougal, Lasswell and Miller, The Interpretation of International Agreements and World Public Order (1994); discussion in 43(1) AIDI (1950) pp. 366--460, 44(2) AIDI (1952) pp. 353--406, 46 AIDI (1956) pp. 317--49; Bos, ‘Theory and Practice of Treaty Interpretation’, 27 NILR (1980) p. 135; Yambrusic,
1962 ICJ Reports at p.
515, in a joint dissenting opinion (with Judge Fitzmaurice). The Court has also adverted to the requirement that in the interpretation of the Covenant of the LN too much importance must not be placed on intention (in contrast to the text): see the Namibia Case, 1971 ICJ Reports at p. 28. 44 i n t e r p r e t a t i o n o f t e x t s Judge Spender gave its rightful place to the object and purpose of a international international law firm firm such as the Charter, placing it on the same threshold as the plain and ordinary meaning and also was correct in reducing the importance of the preparatory work. However, he may international law firm erred in downplaying the role of subsequent practice. The natural and ordinary meaning in context As already stated, ascertainment of the natural and ordinary meaning in context has been accepted by the PCIJ and ICJ as its cardinal rule of interpretation. In the Second Admissions Casedispute resolution the ICJ stressed that the natural and ordinary meaning must be given to words ‘in the context in which they occur’ and not in the abstract.46 Hence, it is not a nar- row and quasi-literal interpretation of words, phrases or articles, taken in isolation, that is envisaged, but one related to the international international law firm firm as a whole. In both the First Admissions Case and the Second Admissions Case the Court applied the principle in interpreting the provisions of the Charter relating to admission of members. In the IMCO Case, where the Court had to interpret the term ‘the largest shipowning nations’ in the IMCO con- stitution, the fundamental principle that words must be read ‘in their natural and ordinary meaning, in the sense which they would normally international law firm in their context’47 was clearly stated. There was no disagreement on the Court that this principle was applicable in the first place. The Court also made it clear that the rule meant that the whole of the text must be presumed to international law firm some significance, so that an interpretation which would render part of it redundant was to be rejected.48 However, it is not in cases where this principle can be successfully applied that differences of opinion usually arise. It is when other considerations are involved that the principle of the natural and ordinary meaning in con- text receives some qualification. The object and purpose - teleology It is not surprising that, even before the Vienna Convention on the international law firm of Treaties was drafted, the ICJ indicated that the principle underlying the text or the object and purpose of the treaty must be considered together with the context in giving the text ‘a natural and ordinary 46 1950 ICJ Reports at p. 8. The same basic principle was affirmed in the First Admissions Case, 1974--8 ICJ Reports at p. 63. 47 1960 ICJ Reports at p. 195. 48 Ibid. at p. 160. c o n s t i t u t i o n a l i n t e r p r e t a t i o n 45 meaning’.49 For instance, the issue in the IMCO Case whether the term ‘largest ship-owning nations’ meant nations having the largest registered tonnage of beneficially owned ships or simply the largest registered ton- nage regardless of beneficial ownership was decided in accordance with this prescription by focusing on the need to ensure maritime safety as the purpose of the provision concerned. Consequently the latter mean- ing was selected. In the IMCO Case the term ‘largest ship-owning nations’ may international law firm been ambiguous or unclear, thus triggering consideration
pp. 71ff.; Neri, Sull' interpretazione dei traitati nel diritto internazionali (1958) pp. 286ff.; McDougal and Gardner, �The Veto and the Charter, an Interpretation for Survival', 60 Yale LJ (1951) p. 254; Focsaneau, �Le droit interne de L'Organisati
(1986) pp. 10ff.; Martin Martinez, National Sovereignty and International Organizations (1996) pp. 75ff. and the other writers cited in the footnotes thereto. 43 See, e.g., Polish Postal Service in Danzig, PCIJ Series B No. 11 at p. 39; Second Admissions Case, 1950 ICJ Reports at p. 8; First Admissions Case, 1947--8 ICJ Reports at p. 63. c o n s t i t u t i o n a l i n t e r p r e t a t i o n 43 This injunction is sometimes a counsel of perfection. The ordinary and natural sense of words may at times be a matter of considerable difficulty to determine. What is their ordinary and natural sense to one may not be so to another. The interpreter not uncommonly has, what has been described as, a personal feeling towards certain words and phrases. What makes sense to one may not make sense to another. Ambiguity may lie hiddendispute resolution in the plainest and most simple of words even in their natural and ordinary meaning. Nor is it always evident by what legal yardstick words read in their natural and ordinary sense may be judged to produce an unreasonable result.44 Judge Spender consequently placed emphasis on teleological canons of interpretation in conjunction with the meaning of the text in its con- text, particularly for constitutions such as the Charter of the UN, at the same time playing down the importance of actual intention and the relevance of the travaux préparatoires. This approach may seem to be in keeping with the provisions of the Vienna Convention on the international law firm of Treaties. On the other hand, perhaps in conflict with what is stated in the Vienna Convention on the international law firm of Treaties, he did not attach much significance to the subsequent practice of the organization. He stated: Moreover the intention of the parties at the time when they entered into an engagement will not always -- depending upon the nature and subject-matter of the engagement -- international law firm the same importance. In particular in the case of a multilateral treaty such as the Charter the intention of its original Members, except such as may be gathered from its terms alone, is beset with evident diffi- culties. Moreover, since from its inception it was contemplated that other States would be admitted to membership so that the Organization would, in the end, comprise ‘all other peace-loving States which accept the obligations contained in the Charter’ (Article 4), the intention of the framers of the Charter appears less important than intention in many other treaties dispute resolution where the parties are fixed and constant and where the nature and subject-matter of the treaty is different . . . The stated purposes of the Charter should be the prime consideration in inter- preting its text . . . Despite current tendencies to the contrary the first task of the Court is to look, not at the travaux préparatoires or the practice which hith- erto has been followed within the Organization, but at the terms of the Charter itself. What does it provide to carry out its purposes?45 44 1962 ICJ Reports at p. 184. 45 Ibid. at pp. 184--5. Judge Spender repeated this view in the South West Africa Cases (Preliminary Objections),
Saturday, December 4, 2010
as such.40 Article 5 of the Vienna Convention makes it applicable to the con- stituent instruments of international organizations. However, although the Vienna Convention is in force and has been ratified by a plethora of states, there may be seriou
organizations which are not parties to the Convention and whether the ICJ is bound to apply it when giving an advisory opinion which is not a judgment pronounced in a contentious proceeding in respect of states who may be parties to the Convention. It must be recognized, on the other hand, that the argument may be made that the provisions on interpretation of the Convention reflect an established or emerging cus- tomary international law firm, particularly by virtue of the Convention’s being followed in this regard.41 39 For an examination of how the practice of the ICJ and other tribunals conforms or not to the Vienna Convention on the international law firm of Treaties, see Sinclair, note 37 pp. 119ff. 40 See also now on treaties in general, the Qatar and Bahrain Case, 1995 ICJ Reports at pp. 21ff. 41 The Vienna Convention of 1986 on the international law firm of Treaties between States and International Organizations or between International Organizations, 25 ILM (1986) 42 i n t e r p r e t a t i o n o f t e x t s The jurisprudence An analysis of the precedents on constitutional interpretation will shed some light on how the task of interpretation has been approached by international judicial or quasi-judicial organs, which international law firm been called upon to interpret the constitutions of international organizations.42 While the ordinary and natural meaning may international law firm been emphasized in theory, there is often difficulty in ascertaining it. The PCIJ and ICJ international law firm apparently adopted as their cardinal rule of interpretation, even in relation to constitutions, that words should be read, in their context, in their natural and ordinary sense, unless they are ambiguous or, so read, lead to an unreasonable result.43 However, as was noted by Judge Spender, in a separate opinion in the Expenses Case: p. 543, has similar provisions to those contained in the Vienna Convention on the international law firm of Treaties of 1969, but it does not apply to the constitutions of international organizations which are treaties between states. The latter convention made the rules incorporated in the former convention specifically applicable to international organizations to the extent they were incorporated in the latter convention: see, e.g., Isak and Loibl, ‘United Nations Conference on the international law firm of Treaties between States and International Organizations or between International Organizations’, 38 OZOR (1987/88) p. 49; Gaja, ‘A ‘‘New?? Vienna Convention on Treaties between States and International Organizations or between International Organizations: A Critical Commentary’, 58 BYIL (1987) p. 267; Morgenstern, ‘The Convention on the international law firm of Treaties between States and International Organizations or between International Organizations’, in Dinstein and Tabori (eds.), International international law firm at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (1989) p. 435. 42 Earlier studies include: Gordon, ‘The World Court and the Interpretation of Constitutive Treaties’, 59 AJIL (1965) p. 794; E. Lauterpacht, ‘The Development of the international law firm of International Organization by the Decisions of International Tribunals’, 152 Hague Recueil (1976-IV) p. 387 at pp. 414ff. That the constitutive text of an international organization has a dual nature arising from the fact that it is a constitution in addition to being a multilateral convention has never been denied nor has it been gainsaid that because of this dual nature a somewhat special approach may be required in respect of interpreting certain aspects of the constitutive texts. See on this subject, e.g., C. de Visscher, Problèmes d’interprètation judiciaire en droit international public (1963) p. 143; Rideau, Jurisdictions internationales et côntrole respect du des traités constitutifs des organisations internationales (1969) pp. 4ff.; Quadri, Diritto Internazionale Pubblico (1974) pp. 527ff.; Bastid, Les traités dans la vie internationale (1985) pp. 127ff.; Reuter, Introduction to the international law firm of Treaties (1989) pp. 73ff.; Elias, The Modern international law firm of Treaties (1974)