Disputation: Evolutionary interpretation of treaties
Cand. jur Eirik Bjørge will defend his thesis Evolutionary interpretation of treaties
Copyright: Laura Dix
- Professor Inger Johanne Sand, University of Oslo (leader)
- Professor Georg Nolte, Humboldt-Universität zu Berlin (1. opponent)
- Professor Robert Kolb, Université de Genève (2. opponent)
Chair of defence
- Professor Kåre Lilleholt, University of Oslo
- Professor Mads Andenæs, University of Oslo
Evolutionary interpretation of treaties
This thesis shows that there is nothing that distinguishes the evolutionary method of treaty interpretation applied by the European Court of Human Rights from the general law of treaties. We use the term evolutionary interpretation when a court interprets a treaty term in a way which recognises that its content has developed over time. Should modern types of commerce today be understood to be included in the treaty term ‘commerce’ in a treaty from the 1850s? Should ‘torture’ be understood to cover a broader range of actions in 2013 than in 1950? In cases where an international court or tribunal says ‘yes’ to this type of question, it is customary to say that the court has had recourse to evolutionary interpretation.
Although many have argued that human rights bodies apply a more ‘dynamic’ or ‘evolutionary’ method than the International Court of Justice, this thesis shows that that is not the case.
A treaty is to 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; each of these elements guides the interpreter in establishing the common intention of the parties. The thesis shows that evolutionary interpretation is not different from other types of treaty interpretation in international law. In common with other types of interpretation, evolutionary interpretation is a product of the intention of the parties as expressed in the text and object and purpose of the treaty. When international courts and tribunals interpret a treaty evolutionarily all they do is to follow the traditional law of treaties as codified in the general rule of interpretation in the Vienna Convention.