intentions that they incorporated into the said treaty when signing it and, eventually, how
those intentions should be understood vis-à-vis new situations.
12.
This is why, in order to interpret the Convention, the Court has not only its text, but
also other sources of public international law; that is, international custom, the general
principles of law, and the unilateral legal acts of the States Parties and, if the States that
appear before it have agreed, equity, and also, but as subsidiary means, case law, doctrine,
and the legally binding resolutions of international organizations.25
13.
That said, the principal rule for the interpretation of treaties contained in the Vienna
Convention on the Law of Treaties26 is that que “[a] treaty shall be interpreted in good faith
in accordance with the ordinary meaning to be given to the terms of the treaty in their context
and in the light of its object and purpose.”27
14.
This provision includes four means of interpretation. One of the methods is based on
good faith which signifies that what was agreed by the States Parties to the treaty in question
should be understood in accordance with what they really intended to agree on, so that this
is applied faithfully and has practical effects. The second is the textual or literal method, which
relates to the analysis of the text of the treaty, the vocabulary used and the ordinary meaning
of its terms. Another is the subjective method, which seeks to establish the intention of the
States Parties to the treaty by also analyzing the travaux préparatoires and their impact on
the treaty. And the fourth is the functional or teleological method that seeks to determine the
object and purpose of the treaty. These four methods should be applied simultaneously and
harmoniously in the interpretation of a treaty, without giving preference to any of them. 28
freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national
or social origin, economic status, birth, or any other social condition. 2. For the purposes of this Convention, "person"
means every human being.”
Art. 38 of the Statute of the International Court of Justice: “1. The Court, whose function is to decide in accordance
with international law such disputes as are submitted to it, shall apply: (a) international conventions, whether general
or particular, establishing rules expressly recognized by the contesting states; (b) international custom, as evidence
of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) subject to
the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various
nations, as subsidiary means for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo if the parties agree thereto.”
25
This is the only international treaty-based provision that refers to the sources of public international law. It does not
include unilateral legal acts or the legally binding resolutions of international organizations.
26
Hereinafter, the Vienna Convention.
Art. 31 of the Vienna Convention, also indicates the following:
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its
preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in
connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in
connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties
regarding the interpretation 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 parties so intended.”
27
Art. 32: “Supplementary means of interpretation. Recourse may be had to supplementary means of interpretation,
including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning
resulting from the application of article 31, or to determine the meaning when the interpretation according to article
31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or
unreasonable.”
This is what differentiates the interpretation of a treaty from the interpretation of the law in which, in some
countries, such as Chile – according to article 19 of its Civil Code – the literal interpretation prevails: “When the
meaning of the law is clear, its literal meaning should not be disregarded, on the pretext of consulting its spirit.
However, in order to interpret an obscure expression of the law, it is possible to have recourse to its intention or
spirit, clearly expressed in the law, or in the authoritative history of its elaboration.”
28
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