INTERPRETATIVE PRINCIPLES
4.2 H IERARCHY OF INTERPRETATION METHODS ?
The distinction discussed in the previous section between methods and principles revealed that different (types of) arguments can have a different function in the interpretative process. This section will address the question whether different inter- pretation methods can differ in terms of argumentative force. The question can be put differently by asking whether some theoretical hierarchy amongst interpretation methods can be said to exist. This theoretical discussion is relevant as a background for the analysis of the use of the different aids by the CJEU and the ECtHR and the force they accord to the interpretative aids.
The starting point for a discussion on the hierarchy of interpretation methods in the context of treaty interpretation should focus on the Vienna Convention. Article 31 VCLT provides the general rule of treaty interpretation, which holds: ‘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’.15
In its second and third section this article provides what should be considered to constitute the ‘context’ and what can be taken into account apart from the context.16
15 This provision reflects a compromise between three schools of interpretation. The first considered the text of the treaty to be decisive. The second school focused on the intention of the drafters. The final school focused on the object and purpose of the treaty. Shaw (2008), p. 933; Bossuyt (2005), p. 77. See for an overview of the drafting of the Vienna Convention and the period leading to this drafting process: Orakhelashvili (2008), p. 301-316.
16 Article 31 VCLT:
General rule of interpretation
1. 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.
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;
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In its commentary to the Vienna Convention the International Law Commission (ILC) argued that Article 31 VCLT should not be read as establishing a hierarchy of inter- pretative norms.17The ILC held that logic determined the order in which references
to the different interpretation methods were presented and not any hierarchy.18This
does not mean that the rules on treaty interpretation in the VCLT are devoid of any hierarchy. First of all, Article 32 VCLT refers to ‘supplementary’ means of interpreta- tion.19 This means that the interpretation methods included in this article are only
to be used if the methods mentioned in Article 31 VCLT do not lead to a clear meaning of the term or provision that requires interpretation. Secondly, the ILC does consider textual interpretation to be the prime method of interpretation.20The primacy
granted to the text of the treaty provision, thus, means that textual interpretation is, even if this is not explicitly acknowledged by the ILC, at the top of the hierarchy of interpretation methods. Any reasoning based on this method will therefore be considered to have strong argumentative force.
As has already been said, theoretical discussions on (national) interpretation methods could be relevant for the context of treaty interpretation as well. The question may be asked whether any hierarchy has been established in the context of national interpretation methods.21 An interesting example of an attempt to bring order or
(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. 17 See: Commentary to articles of Vienna Convention, Yearbook of International Law Commission,
1966- Vol. II, p. 220. The International Law Commission was involved in drafting the VCLT and its commentary reflects many considerations throughout the drafting process that can help one to understand the final version of the VCLT.
18 See: Commentary to articles of Vienna Convention, Yearbook of International Law Commission, 1966- Vol. II, p. 220. See also Aust (2007), p. 234.
19 Article 32 VCLT:
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.
20 See for reference to the primacy of the text: articles of Vienna Convention, Yearbook of International Law Commission, 1966- Vol. II, p. 220; Bernhardt (1967), p. 495-496; Orakhelashvili (2008), p. 309.
21 According to Alexy no one has succeeded in drafting a catalogue accepted by everyone. Alexy (1989), p. 247. Franken in the Dutch context claims that textual and historical interpretation should take precedence in case of multiple options, since these methods emphasize the fact that a judge is bound by the law. Franken (2003), p. 199.
Interpretation methods and interpretative principles
hierarchy into interpretation methods has been presented by a group of scholars known as the Bielefelder Kreis.22After a study of the use of interpretation methods in many
different jurisdictions, they presented a very simple model of the order in which different interpretation methods should be considered.23 First, linguistic arguments
should be considered; secondly, systemic arguments; and, finally, teleological argu- ments. Only if the interpretative result is not clear enough should one proceed to the next interpretation method. Thus, according to this model, teleological interpretation may only be used if textual and systemic interpretation do not provide a clear result. The question is, however, whether and when it is possible to conclude if a result from textual interpretation is clear. After all, the use of systemic or teleological interpreta- tion might show that the result is not that clear. Nonetheless, apart from this problem the model is useful to show that reasoning based on some methods is sometimes granted more argumentative force than others.24
Both in theoretical literature and in literature on treaty interpretation, no clear hierarchy among interpretation methods has been found to exist, even though textual interpretation is often regarded as the primary method of interpretation (which is perhaps understandable when interpreting a legal text). The problem for our purpose is that interpretation beyond the purely textual or grammatical meaning of treaty notions is often necessary, precisely because the text of treaty provisions is often rather vague. Fundamental rights are generally broadly formulated. An example of this broad formulation is Article 8 ECHR: ‘everyone has the right to respect for his private and family life, his home and correspondence’. Especially the term private life is a broad term that needs further interpretation; textual interpretation might not be very helpful in that case. Furthermore, the fact that, in the Vienna Convention, textual interpreta- tion, systemic interpretation and teleological interpretation are all mentioned as part of the general rule of interpretation might be an indication that the ILC did not intend to create a hierarchy of interpretation methods. It only shows that arguments based on these methods should be given primary consideration.
It will be interesting to see in the case law analysis whether the ECtHR and the CJEU distinguish between the argumentative force of different interpretation methods and whether some form of hierarchy is visible in their argumentation.
22 See MacCormick & Summer (1991) for the outcomes of the study of this group of scholars from different countries.
23 MacCormick & Summer (1991), p. 531.
24 The study by Bielefelder Kreis revealed that in many jurisdictions textual arguments have a strong force in justification. MacCormick & Summer (1991), p. 533.
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