9.1 Introduction
This edited volume reviews how different tribunals and legal systems have used public international law (PIL) principles of interpretation. The World Trade Organization (WTO) Dispute Settlement System (DSS) is governed both by general and specific rules of interpretation. Firstly, Article 3.2 of the DSU provides that the WTO provisions should be interpreted using customary rules of interpretation in PIL. Panels and the Appellate Body (AB) have applied the traditional tools of interpretation (including Articles 31–33 of the Vienna Convention on the Law of Treaties) against the backdrop of the WTO’s unique framework of agreements. Secondly, and more specifically, the Dispute Settlement Understanding (DSU) and the Marrakesh Agreement Establishing the World Trade Organization (WTO Agreement) refer explicitly to the need to consider the historical background of the WTO and its General Agreement on Tariffs and Trade (GATT) practices and decisions. For example, in Article 3.1 of the DSU, WTO Members affirm their adherence to the principles of management of disputes under Articles XXII and XXIII of the GATT 1947. Also, Article XVI of the WTO Agreement requires that the functioning of the WTO (including its dispute settlement system) be guided by the decisions, procedures, and customary practices of the GATT 1947.Footnote 1 The decisions, customary practices, and procedures of the contracting parties thus continue to remain relevant and have a guiding role.
A unique feature of the WTO treaty is that it comprises several agreements all of which bind WTO Members simultaneously and cumulatively (referred to as the ‘WTO covered agreements’) – this principle is known as the single undertaking – a concept that has both political and legal meanings and implications. To understand the complexity of implementing the WTO covered agreements as a Single Undertaking, it must be recalled that they were not negotiated in one coordinated effort, rather, in fifteen different working groups for each covered agreement’s text.Footnote 2 Towards the very end of the Uruguay Round, these texts were brought together and annexed to the WTO Agreement to form the Single Undertaking.Footnote 3 In a way, each covered agreement is like a small treaty: each agreement has their own Preamble and their own object and purpose.
To maintain coherence and reduce conflict within this Single Undertaking, the WTO DSS has engaged in horizontal cross-fertilisation of jurisprudence across agreements. Exactly how panels and the AB identify the ordinary meaning of provisions in their context and in light of the object and purpose of the WTO treaty will be the subject of the following discussion, noting first the nature of the WTO Single Undertaking in more detail. This chapter seeks to first trace the legal implications of the Single Undertaking on interpretations of provisions of the WTO covered agreements and thereafter elaborates on the manner in which the WTO DSS has employed the general rules of interpretation as per Articles 31, 32, and 33 of the Vienna Convention on the Law of Treaties (VCLT).
9.2 Single Undertaking
As explained earlier, although fifteen different working groups negotiated and finalised the text of each corresponding agreement,Footnote 4 it was agreed that no reservations would be possibleFootnote 5 and that all WTO Members were bound by all provisions of all covered agreements.Footnote 6 Thus, all covered agreements created obligations on Members, but there was no formal discussion or express indication on the hierarchy of WTO norms under the covered agreements and how the obligations created by each of these would interact.Footnote 7 This understanding of the WTO covered agreements as a Single Undertaking has significant implications on the interpretation of the provisions of these agreements, and in this section two aspects are explored: first, the cumulative and simultaneous application of all the provisions of the WTO covered agreements becomes an expression of the principle of effectiveness; and, secondly, the principle of Single Undertaking impacts the manner in which conflicts are defined under WTO Agreements and the manner in which they are resolved through treaty interpretation.
9.2.1 Cumulative and Simultaneous Application of All WTO Provisions
To briefly recount the jurisprudence of the WTO DSS relating to the implications of the WTO covered agreements forming a Single Undertaking, the Panel Report in Indonesia – Autos is a useful starting point. Indonesia was challenged for maintaining some local content requirements in its taxes, contrary to the Trade Related Investment Measures (TRIMS) and Subsidies and Countervailing Measures (SCM) Agreements. Indonesia invoked the right to maintain local content prohibitions during three years of transition under TRIMS without any specific notification. The Panel, however, concluded that because WTO Members must comply with all WTO provisions cumulatively and simultaneously, Indonesia was also obliged to comply with the provisions of the SCM Agreement, which allowed for transitional local content requirements only if they were fully notified to the WTO. Since Indonesia did not notify the WTO of its measures, Indonesia was considered to have violated the local content requirements of the SCM and the GATT Article III:4.
Later on, the AB in Korea – DairyFootnote 8 reiterated the cumulative and simultaneous application of the WTO Single Undertaking. This dispute dealt with the relationship between Article XIX of the GATT and the Agreement on Safeguards. The AB, confirming the decision of the panel, concluded that because of the WTO Single Undertaking, the provisions of the GATT and those of the Agreement on Safeguards must apply cumulatively and simultaneously. The AB recalled the following statement of the Panel:
It is now well established that the WTO Agreement is a ‘Single Undertaking’ and therefore all WTO obligations are generally cumulative, and Members must comply with all of them simultaneously.Footnote 9
Given that provisions of different covered agreements may have different, sometimes overlapping and even conflicting scopes, the AB concluded that the provisions of the WTO covered agreements must be interpreted harmoniously and the treaty should be read as a whole. As noted by the AB, this is a necessary implication of the principle of effectiveness, which, in the case of WTO covered agreements, relates to the provisions of the Single Undertaking cumulatively and simultaneously. The AB states that:
In light of the interpretive principle of effectiveness, it is the duty of any treaty interpreter to ‘read all applicable provisions of a treaty in a way that gives meaning to all of them, harmoniously.’ An important corollary of this principle is that a treaty should be interpreted as a whole, and, in particular, its sections and parts should be read as a whole …. Article II:2 of the WTO Agreement expressly manifests the intention of the Uruguay Round negotiators that the provisions of the WTO Agreement and the Multilateral Trade Agreements included in its Annexes 1, 2 and 3 must be read as a whole.Footnote 10
Indeed, the principle of the Single Undertaking has become a general principle of interpretation for the relationship between WTO covered agreements and provisions. The implication being that annexed agreements need to be viewed as a whole and interpreted harmoniously, cumulatively, and simultaneously as a single treaty.
Other instances in which two provisions from different agreements have been given cumulative and simultaneous effect include GATT and GATS provisions in the decisions of EC – Bananas III and Canada – Periodicals,240 GATT Article III and Article XIII of the Agreement on Safeguards in US – Line Pipe,242 Agreement on Agriculture and the SCM Agreement in US – Upland Cotton,Footnote 11 Article XIX of the GATT and the Agreement on Safeguards in Argentina – Footwear (EC),Footnote 12 and the GATT and Article XIII of the Agreement on Agriculture. The principle of effectiveness has been used by the AB to harmoniously apply different provisions of the WTO covered agreements.
A corollary to the application of the principle of effectiveness in the context of the WTO Single Undertaking is that no provision of the treaty should be made a ‘nullity’.Footnote 13 The AB in US – Gasoline found that the principle of effectiveness went hand in hand with the general rule of interpretation under the VCLT. This finding was made in the context of the GATT where the AB held that Article XX (an exception to GATT obligations such as national treatment) does not call for the application of the same standards as Article III of the GATT (dealing with national treatment). The AB cautioned against reading WTO covered agreements in such a manner that would reduce paragraphs or clauses of a treaty to redundancy or inutility.Footnote 14 They referred principally to the general rule of interpretation in Article 31(1) of the VCLT and noted that the Panel Report failed to take adequate account of the words actually used by Article XX in its several paragraphs. This approach has been followed in Brazil – Desiccated Coconut, where it was held that Article VI of the GATT could not be interpreted in a manner that nullifies transitional rights of developing countries under the SCM Agreement.Footnote 15 Similarly, in Turkey – Textiles, it was held that the right to enter into regional trade agreements (RTAs) under Article XXIV of the GATT could not be made a nullity through the interpretation of other GATT provisions.Footnote 16
9.2.2 Narrow Definition of Conflicts and Harmonious Interpretation
The principle of Single Undertaking also influences how potential conflicts inter se between WTO covered agreements are viewed. The guiding rule here is that there is a presumption against conflicts within the WTO Single Undertaking. This section explores how the WTO DSS has been influenced by the principle of Single Undertaking when resolving conflicts, by firstly, adopting a narrow definition of conflict while interpreting WTO covered agreements, and secondly, the manner in which they are resolved through treaty interpretation.
The General Interpretative Note to Annex 1A to the WTO Agreement (the ‘General Interpretative Note’) provides that:
[i]n the event of conflict between a provision of the General Agreement on Tariffs and Trade 1994 and a provision of another agreement in Annex 1A to the Agreement establishing the World Trade Organization (referred to in the agreements in Annex 1A as the ‘WTO Agreement’), the provision of the other agreement shall prevail to the extent of the conflict.
The other agreements in Annex 1A include, inter alia, the Agreement on Sanitary and Phytosanitary Measures and the Agreement on Technical Barriers to Trade. Thus, the latter Agreements prevail over the more general GATT in the event of conflict. However, the manner in which potential conflicts have been resolved by the WTO DSS is more nuanced than a straightforward application of the General Interpretative note and warrants further examination.
Before proceeding to examine the WTO DSS jurisprudence on this, it is also necessary to recount the practice under general international law. In general international law, ‘conflict’Footnote 17 is a rather specific and narrow concept. One possible definition is as stated below:
[T]echnically speaking, there is a conflict when two (or more) treaty instruments contain obligations which cannot be complied with simultaneously …. Not every such divergence constitutes a conflict, however …. Incompatibility of contents is an essential condition of conflict.Footnote 18
Now, coming to the WTO context, a narrow definition of conflict was adopted by the Panel in EC – Bananas III. The Panel found that any conflict between WTO obligations that would warrant one obligation prevailing over another only refers to instances in which there are mutually exclusive obligations or when a rule in one agreement prohibits what is explicitly permitted by a rule in another agreement.Footnote 19 This approach was confirmed by the AB in Guatemala – Cement,Footnote 20 where it held that the mere existence of provisions addressing the same issue would not warrant a finding that one provision prevails over the other. In this dispute, the panel had found that Article 17.3 of the Anti-dumping Agreement (ADA), which provided for consultations, replaced the rules and procedures of the DSU. The AB found that this interpretation was incorrect as there was no conflict between the provisions of the ADA and the DSU, as consultations under the DSU and the ADA were not mutually exclusive.Footnote 21
Subsequently, in US – Hot Rolled Steel from Japan, the AB supported again a narrow definition of ‘conflict’ and stated that ‘there is no conflict between Article 17.6(i) of the ADA and Article 11 of the DSU’Footnote 22 and ‘we see Article 17.6(ii) as supplementing, rather than replacing, the DSU, and Article 11 in particular’.Footnote 23 The strict conflict approach was also followed by the Indonesia – Autos Panel, which referred to the definition of conflict in general public international law and noted that the incompatibility of treaty provisions is essential to a finding of conflict, divergence alone is not sufficient.Footnote 24
In US – Upland Cotton, the AB expanded the definition of conflict by providing three instances in which the Agreement on Agriculture would prevail over the SCM Agreement. These included an explicit carveout from the SCM Agreement, a situation wherein a Member could not comply with obligations under both agreements simultaneously and when the Agreement on Agriculture expressly authorised a measure prohibited under the SCM Agreement.Footnote 25 The AB recalled that all covered agreements form a part of the Single Undertaking and that Members are bound by all obligations contained therein. It was thus the duty of the adjudicator to read all applicable provisions harmoniously so as to give effect to all of them. The AB held that the application of Article 3.1(b) of the SCM Agreement could not be excluded for the purpose of domestic support subsidies in the Agreement on Agriculture as nothing to this effect was stated in the latter.Footnote 26
Therefore, the WTO DSS is seen to have avoided the necessity of finding a conflict between the provisions of various covered agreements under the Single Undertaking, by adopting a narrow definition of conflict. This implied a harmonious construction of two provisions, instead of applying the principle of conflict resolution captured in General Interpretative Note to Annex 1A.
The General Interpretative Note to Annex IA of the WTO Agreement can be considered an expression of the lex specialis derogat legi generali principle. It posits that special law derogates from general law. This legal maxim does not appear in the VCLT but has been referred to in decisions of the International Court of Justice, learned commentators, and decisions of WTO DSS.Footnote 27 The rule of lex specialis helps deal with situations in which there is a general rule and a special rule, both of which cannot be read harmoniously.Footnote 28 In such a situation, the special rule would prevail. However, the implications of lex specialis are still subject to discussion: the special rule could supersede or cancel out the general rule; or lex specialis could be used as a principle of interpretation that does not allow for the general rule to be superseded, rather, the specific provision is taken out of the scope of the general rule.Footnote 29
The use of the principle by Panel and AB decisions are informative of its use as a principle of interpretation.Footnote 30 In EC – Bananas III, the AB Report demonstrated how the relative specificity of an agreement can be used to resolve a situation of conflict. Whenever GATT and another agreement in Annex 1A to the WTO Agreement appear to apply to a measure, the measure should be examined on the basis of the agreement that ‘deals specifically, and in detail’, with measures of that kind.Footnote 31
Therefore, as may be seen from the above section, the principle of Single Undertaking impacts the manner in which conflicts are defined under WTO Agreements and the manner in which they are resolved through treaty interpretation.
The next section examines the application of customary rules of interpretation by WTO DSS in more detail.
9.3 Application of Customary Rules of Interpretation under VCLT – Article 31
The discussion focuses on Article 31 of the VCLT, which requires treaty terms to be interpreted in their context and in light of the object and purpose of the treaty. The AB, very early in US – Gasoline, recognised that the general rule of interpretation under Article 31 of the VCLT has attained the status of customary international law.Footnote 32 The uniqueness of the WTO framework and the implications of the Single Undertaking discussed above also inform the application of Article 31 of the VCLT to WTO covered agreements. Panels and the AB have had to move across WTO covered agreements in search of context and object and purpose of provisions, as the covered agreements are a ‘Single Undertaking’ and interpreted as one treaty. Accordingly, the practice of WTO dispute settlement has been to use Article 31 to facilitate cross-fertilisation across agreements and increase coherence within the Single Undertaking.
Article 3.2 of the DSU requires the WTO DSS to clarify existing provisions of covered agreements in accordance with ‘customary rules of interpretation under public international law’.Footnote 33 Rules of treaty interpretation thus play a significant role in the WTO system as adjudicators have been given the task of clarifying the rights and obligations of WTO Members without adding to them or diminishing them.
All Members seem to agree that customary rules of treaty interpretation refer to rules in the VCLT, namely, those contained in Articles 31–33. Accordingly, this section examines the application of the general rule of interpretation.
The general rule of interpretation contained in Article 31(1) of the VCLT posits that:
[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.
In its first decision, the AB held that the GATT cannot be read in clinical isolation and will have to be interpreted by applying the customary rules of interpretation.Footnote 34 This decision explicitly identified Article 31 of the VCLT as a customary rule of treaty interpretation and thus applicable when interpreting the GATT and other covered agreements.Footnote 35 The crux of the interpretative exercise involves three interrelated elements. The ordinary meaning of a treaty term is discerned using dictionaries and the grammatical construction of the provision, while taking into account the context in which a treaty term is placed and its object and purpose. This exercise is not carried out in distinct steps but is done holistically by the interpreter with each element influencing the other.Footnote 36
9.3.1 Good Faith
Good faith is a recognised general principle of law, a principle of interpretation and it is also explicitly mentioned in the DSU.Footnote 37 The principle of good faith informs the application of Article 31(1) of the VCLT and the use of a treaty term’s context and relevant object and purpose discussed above.Footnote 38 The AB has recognised this role of good faith in the application of treaties and at times combined it with the principle of abus de droit.Footnote 39 In US – Shrimp, for instance, the AB held that the Chapeau of Article XX of the GATT, which requires Members to apply measures that derogate from GATT obligations in a manner that is not arbitrary or a disguised restriction on trade, was an expression of good faith.
The chapeau of Article XX is, in fact, but one expression of the principle of good faith. This principle, at once a general principle of law and a general principle of international law, controls the exercise of rights by states. One application of this general principle, the application widely known as the doctrine of abus de droit, prohibits the abusive exercise of a state’s rights and enjoins that whenever the assertion of a right ‘impinges on the field covered by [a] treaty obligation, it must be exercised bona fide, that is to say, reasonably’. An abusive exercise by a Member of its own treaty right thus results in a breach of the treaty rights of the other Members, as well as, a violation of the treaty obligation of the Member so acting. Having said this, our task here is to interpret the language of the chapeau, seeking additional interpretative guidance, as appropriate, from the general principles of international law.Footnote 40 Good faith interpretation of treaty obligations became one of the central issues in Russia – Traffic in Transit wherein the Panel found that the discretion of a Member to designate particular concerns as an ‘essential security interest’ was limited by their obligation to interpret and apply the security exception in good faith.Footnote 41
9.3.2 Ordinary Meaning and the Use of Dictionaries
In EC – Asbestos, the AB referred to a dictionary, as a starting point for determining the meaning of the word ‘like’, which appears in Article III.4 of the GATT. The AB was, however, quick to note that questions regarding what product characteristics were important to assess likeness could not be answered by simply looking at the dictionary meaning.Footnote 42 The adjudicator also had to make a judgment with regard to the degree of likeness required under Article III and to the perspective from which this likeness was to be ascertained (consumers or producers).Footnote 43 To answer these questions, the AB turned to the context of Article III.4, thus applying the general rule of interpretation.
There are rare occasions in which the AB has considered the dictionary meaning, or definition, to be conclusive or sufficient in interpreting a term.Footnote 44 In Brazil – Aircraft (Article 21.5 – Canada), the AB referred to the ordinary meaning of the term ‘withdraw’ under Article 4.7 of the SCM Agreement on whether Brazil had complied with the recommendation of the DSB to withdraw the subsidy in question. The AB referred to the Oxford Concise Dictionary and Black’s Law Dictionary, concluding that the ordinary meaning of withdraw was the ‘removal’ or ‘taking away’ of a subsidy. However, it may be possible that the AB relied on contextual elements without mentioning them in the Report to arrive at the ordinary meaning in this case.Footnote 45
9.3.3 Context
9.3.3.1 Immediate Context – within the Covered Agreement
The search for context by WTO panels and the AB is not restricted to the covered agreement in which a relevant provision is found. Recalling that obligations of the Single Undertaking fall simultaneously and cumulatively on Members, this discussion examines how panels and the AB have identified context in the Single Undertaking framework.
The AB has considered the provisions within the immediate vicinity of a treaty term as its context. In US – Shrimp, for instance, the AB faulted a panel’s findings because they did not reflect the immediate context of sub-paragraph (g) of Article XX, which was the Chapeau of Article XX. In US – Clove Cigarettes, AB used the context provided by Article 2.2 of the Technical Barriers to Trade (TBT) Agreement to find that not all obstacles to international trade are prohibited under Article 2.1. In other instances, panels and the AB have moved across WTO covered agreements when searching for the context and object and purpose required to interpret a provision. The AB used this approach when it had the occasion to examine the meaning of the term ‘like’ in Article III.4 of GATT for the first time.Footnote 46 In interpreting the term, the AB held that ‘like’ under GATT may not have the identical meaning as the same term used in other covered agreements. But these covered agreements would nonetheless be relevant context in interpreting the term under Article III.4 of the GATT. This is further elaborated below.
9.3.3.2 Context across WTO Covered Agreements
The search for context by the WTO adjudicators is indicative of a holistic approach to interpreting the Single Undertaking recognising the need to maintain coherence between the obligations of the various covered agreements. As mentioned above, the AB has noted that the term like products was used in several WTO covered agreements such as the GATT, the SCM Agreement, the ADA, the Agreement on Safeguards, etc. Likeness was thus a key concept used across WTO disciplines. In some agreements, the meaning attributable to the term was specific and expressed in clear terms in the agreement. For instance, Article 2.6 of the ADA states that the term ‘like product’ should be interpreted to mean identical products throughout the Agreement and in the event that such product does not exist, like products would be those products that are not alike in all respects but still have characteristics that closely resemble each other. However, in most covered agreements, no such specific definition exists. Accordingly, the AB held that the term ‘like products’ should be interpreted in light of the context and the object and purpose of the provision in which it is found and the object and purpose of the relevant covered agreement. This means that the same term may have different scope, different components across different agreements.Footnote 47
The AB decision in US – Clove Cigarettes is a valuable illustration of how context is found within the relevant covered agreement and other WTO covered agreements. In this dispute, the operation of the WTO covered agreements as a single treaty and their collective relevance in the interpretation of treaty provisions was noted by the AB. It recalled its decision in EC – Asbestos, which identified the context of a provision as the terms within the covered agreement in question and similar terms in other covered agreements.Footnote 48
The AB used Article III.4 of the GATT and its jurisprudence as context for interpreting the meaning of ‘like’ products under Article 2.1 of the TBT and identifying the balance between rights and obligations contained within the article. The US had appealed the panel’s finding that clove and menthol cigarettes were like products. The US argued that clove and menthol cigarettes are not like products because clove cigarettes were disproportionally smoked by young smokers whereas menthol cigarettes are smoked evenly by both young and adult smokers.Footnote 49 The US submissions thus emphasised that not all consumers were willing to substitute clove and menthol cigarettes to the same degree (youth, for instance, had a stronger preference for clove cigarettes). The AB found that it was not necessary to show that a product was substitutable for all consumers in order to establish that they were alike.
In reaching its conclusion on likeness, the AB referred to its decision in Philippines – Distilled Spirits,Footnote 50 which discussed the second sentence of Article III.2 where like products are defined as products that are directly competitive or substitutable. The AB held that the interpretation of like products under Article III.2 would be relevant for the purpose of Article III.4 of the GATT and Article 2.1 of the TBT Agreement because a competitive relationship between products is determinative of likeness in each of these provisions. Though young smokers preferred clove cigarettes, for those who were starting to smoke, menthol and clove cigarettes were preferred as they both masked the otherwise harsh taste of tobacco. For the AB, the interchangeability of these cigarettes among young smokers was sufficient to establish their likeness for the purpose of Article 2.1.Footnote 51
After examining the meaning of likeness under Article 2.1 of the TBT Agreement and its application to clove and menthol cigarettes, the AB turned to the interpretation of Article 2.2 of the TBT and its interaction with Article 2.1. Specifically, the AB sought to understand the extent to which Article 2.1 permitted discrimination for the purpose of achieving legitimate regulatory objectives. Article 2.2 requires that technical regulations be put in place by Members only to achieve legitimate objectives, that they are not applied in a manner so as to cause arbitrary discrimination, and any regulations should not be more trade restrictive than necessary to achieve the objective of the regulation. The AB used Article 2.2 as context for Article 2.1, which allowed it to interpret the latter as not prohibiting all technical regulations that are obstacles to international trade. The AB used the principle of effectiveness and found that a strict reading to Article 2.1, which prevented all differentiation between like imported and domestic products, would amount to depriving Article 2.2 of the TBT Agreement of its effet utile.Footnote 52 Article 2.2, which provides the context for Article 2.1, suggests that obstacles to international trade would be permitted insofar as they are not found to be ‘unnecessary’. Therefore, if any prohibition on international trade was sufficient to establish a violation of Article 2.1, it would deprive Article 2.2 of its effet utile.
In order to interpret whether the US regulations banning clove cigarettes conferred less favourable treatment to products of foreign origin under Article 2.1 of the TBT Agreement, the parties and the AB found it useful to turn to Article III.4 of the GATT. On the issue of regulatory distinctions, the AB referred to EC – Asbestos, which held that regulatory distinctions that afford protection to domestic production would accord treatment less favourable to like imported products.Footnote 53 The requirement to accord treatment no less favourable was interpreted broadly under the GATT, and the AB followed this position for Article 2.1 of the TBT Agreement as well. However, it found the need to temper this requirement because of the specific context of the TBT Agreement, especially as evident from the Preamble of the agreement.
Therefore, context as a tool of interpretation by the WTO DSS has seen the employment of provisions that are both within the Agreement in question, as well as other Agreements that are part of the WTO covered agreements. This is a direct consequence of the principle of Single Undertaking.
9.3.3.3 Preambular Language as Context
Preambular language has been an important source of context in several decisions of the AB.Footnote 54 Of note is the decision in US – Shrimp, which used preambular language to give a contemporaneous interpretation of Article XX of the GATT. As mentioned above, Article XX is the exceptions clause of the GATT and allows Members to derogate from their market access and other obligations of the GATT to meet certain policy objectives. Any measures enacted under Article XX must not be applied in an arbitrary or discriminatory manner or be a disguised restriction to trade. The policy objectives for which Article XX may be invoked are provided in the text of the provision. These objectives include the protection of public morals; human, plant, and animal life and health; conservation of gold and silver reserves; and measures relating to prison labour. The dispute in US – Shrimp concerned Article XX(g), which refers to measures relating to the conservation of exhaustible natural resources if such measures are in conjunction with domestic production and consumption.
The United States had invoked this exception to defend a measure that banned the import of shrimp that was caught without using Turtle Excluder Devices (TEDs). TEDs were designed to allow turtles to swim out of shrimp nets instead of getting caught in them and suffering from injury or suffocating. One of the arguments of the complaining parties (India, Pakistan, and Thailand) was that exhaustible natural resources referred to non-living, non-renewable natural resources. Their interpretation of Article XX(g) was based on arguments made by delegations when the provision was being negotiated. The complaining parties posited that exhaustible natural resources referred to substances such as minerals and other non-biological natural resources.Footnote 55 The AB was not persuaded by this reasoning and referred to the text and context of Article XX(g) to determine its meaning.
The AB noted that half a century had passed between the drafting of Article XX(g) and the dispute. During the Uruguay round that established the WTO, there was a chance to modify Article XX(g) but this did not occur. However, the WTO Agreement was adopted in this round along with its Preamble that referred to the objective of sustainable development.Footnote 56 The use of the phrase sustainable development in the Preamble of the WTO Agreement prompted the AB to interpret Article XX(g) in a more fluid and contemporaneous manner. The meaning of exhaustible natural resources would not remain static and tied to the understanding of the term fifty years ago. The United Nations Convention of the Law of the Sea (UNCLOS), for instance, defines natural resources as both living and non-living. Taking a cue from the international community, which acknowledges the need to protect living natural resources and the recognition of the objective of sustainable development, the AB held that turtles were exhaustible natural resources, the protection of which would be a legitimate policy objective under Article XX(g).
As this preambular language reflects the intentions of negotiators of the WTO Agreement, we believe it must add colour, texture and shading to our interpretation of the agreements annexed to the WTO Agreement, in this case, the GATT 1994.Footnote 57
Once identified, the context of a provision has been used to breathe life into it and inform new interpretations of it. In US – Shrimp, the value of the WTO Agreement’s preambular language guided the interpretive efforts of the AB helping it arrive at a contemporaneous meaning for Article XX(g).
Turning once again to US – Clove Cigarettes, the dispute serves as another example of the use of Preambular language as context. The sixth recital of the Preamble of the TBT Agreement recognises that Members should not be prevented from taking measures that are necessary to prevent deceptive practices; protect animal, plant, and human life or health; and decide the appropriate levels of protection it wants to afford to each of these concerns. The prohibition contained under Article 2.1 thus needs to be balanced with Members’ right to regulate as enshrined in the Preamble and under Article 2.2. The AB noted that unlike the GATT, which explicitly allows for derogations from Article III (and other Articles of the GATT) through Article XX, the TBT Agreement does not contain a provision containing exceptions. Nonetheless, the AB found that the balance struck by the TBT Agreement between trade liberalisation and Members’ right to regulate, found in Article 2.1 itself, was not principally different from the balance struck by the GATT through the introduction of Article XX.Footnote 58 AB decisions in US – COOLFootnote 59 and US – Tuna II (Mexico)Footnote 60 also follow this approach and used Article III.4 of GATT as relevant context for interpreting Article 2.1 of TBT.
9.3.4 Object and Purpose of Covered Agreements and/or Specific Provisions
The object and purpose of a treaty refers to the teleology or the mission of a treaty.Footnote 61 The concept itself is an evolving one and can only be defined in general terms if one is not referring to a specific treaty.Footnote 62 The phrase ‘object and purpose’ under Article 31 of the VCLT is understood as referring to the object and purpose of the treaty as a whole and not to individual provisions of a treaty.Footnote 63 Panels and the AB have often used the object and purpose of a provision in addition to the treaty to shed light on the ordinary meaning of a provision.Footnote 64
When deciding what the phrase ‘based on’ under Article 5.1 of the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) meant, the AB referred in EC – Hormones to the object and purpose of the provision to find that the phrase required an objective relationship between sanitary and phytosanitary measures (SPS measures) and the risk assessment of the persisting situation.Footnote 65
We believe that ‘based on’ is appropriately taken to refer to a certain objective relationship between two elements, that is to say, to an objective situation that persists and is observable between an SPS measure and a risk assessment. Such a reference is certainly embraced in the ordinary meaning of the words ‘based on’ and, when considered in context and in the light of the object and purpose of Article 5.1 of the SPS Agreement, may be seen to be more appropriate than ‘taking into account’.Footnote 66
In EC – Hormones, the AB held that while the European Communities had a right to establish a higher level of protection, it was bound to comply with the requirements of Article 5.1 of the SPS Agreement such as taking into account risk assessment techniques developed by relevant international organisations.Footnote 67 In arriving at this conclusion, the AB referred to the object and purpose of the SPS Agreement as a whole and of Article 3 in particular. Article 3.1 of the SPS Agreement requires Members to base their SPS measures on international standards, guidelines, and recommendations. The thrust of this paragraph under Article 3 is to promote harmonisation. If Members decide to take SPS measures that conform to international standards (thus implying a closer link than measures that are ‘based on’ international standards as under Article 3.1), they benefit from a rebuttable presumption that these measures conform to the SPS Agreement. Under Article 3.3 of the SPS Agreement, Members have the right to introduce measures that achieve a higher level of sanitary and phytosanitary protection than what would be achieved by measures based on international standards.
With respect to object and purpose of the provision, the object and purpose of Article 3 was identified as promoting the harmonisation of SPS measures while recognising and safeguarding Members’ right to regulate and protect the life and health of their people.Footnote 68 The SPS Agreement attempted to strike a balance between the promotion of international trade and the protection of the life and health of human beings. Considering this, Article 5.1 was an important countervailing force to Article 3. The two had to be read in conjunction with each other.Footnote 69
One implication of the teleological approach in the context of the WTO covered agreements is that the object and purpose of ostensibly similar provisions allows for their varied interpretation and application. The ordinary meaning of a provision requires an examination of the provision’s context and object and purpose, and this extends to exceptions as well. In US-Shrimp, the panel report had found that the WTO Agreement emphasises multilateralismFootnote 70 and used this to hold that Article XX of the GATT, when read in light of the context and object and purpose of the GATT and the WTO Agreement, would not accommodate unilateral measures.Footnote 71 The AB found that the panel had erred in arriving at this conclusion. The panel’s error was attributed to its interpretative approach and incomplete identification of the relevant object and purpose. For the AB, the panel had improperly ignored the object and purpose of the Chapeau of Article XX during its interpretative exercise. The AB took issue with the panel’s exclusive focus on the object and purpose of the GATT as a whole and the WTO Agreement. The panel found that the object and purpose of the Chapeau of Article XX was the prevention of abuse of exceptions under Article XX. This, however, did not result in an a priori prohibition of unilateral measures.Footnote 72 To the contrary, the AB found that unilateral measures fell within the scope of the sub-paragraphs of Article XX as long as they could be linked to the policy objectives and meet the requirements of the Chapeau of Article XX.Footnote 73 Similarly, in US – Gasoline, the AB had held that though Article XX of the GATT conferred a legal right, to be exercised in a manner that did not frustrate legal obligations of a Member under the WTO Agreement.Footnote 74
9.3.4.1 Interpretation of Justifications – Use of Object and Purpose and Rebalancing Burden of Proof
In the context of exceptions, the burden of proof falls on the defendant to justify their invocation of the exception once the complaining party has fulfilled the burden of showing the violation of the general rule.Footnote 75 Under Article XX of the GATT, for instance, it is for the responding party invoking the exception to show that the design of the measure falls under one of the sub-paragraphs of Article XX and that it passes the Chapeau test. There are some types of exceptions that offer a contrasting example, where the burden of proof is rebalanced and shifted towards the complaining party. This is not to say that the defending party no longer has the burden of justifying the invocation of a defence; but in the cases discussed below, the AB has required the complainant to do more before the burden of proof falls on the defendant.
In EC – Hormones, the AB found that Article 3 of the SPS agreement and its sub-paragraphs, though characterised as an exception, were qualitatively different from Article XX of the GATT.Footnote 76 The AB held that Article 3.3 of the SPS Agreement conferred an autonomous right on Members to adopt their own levels of protection or measures that achieve a level of protection that goes beyond international standards. It was emphasised that characterising a provision as an exception would not automatically warrant a stricter or narrower interpretation of that provision. The interpretation of an exception would also require an adjudicator to arrive at its ordinary meaning in light of its context and the object and purpose of the treaty.Footnote 77 A similar interpretation was adopted with reference to the interaction between Article 2.2 and Article 5.7 of the SPS Agreement.Footnote 78
Subsequently, in EC – Sardines, the AB found that its decision in EC – Hormones, which clarified the burden of proof under arts 3.1 and 3.3 of the SPS Agreement, would be relevant to a case involving Article 2.4 of the TBT Agreement as well. Though the provisions at issue in EC – Hormones and EC – Sardines were found in different covered agreements (SPS and TBT, respectively), the AB in EC – Sardines used the conceptual similarity of these provisions to maintain a consistent approach to their interpretation.Footnote 79 Article 2.4 of the TBT Agreement requires Members to base their technical regulations on international standards except when these standards would be ineffective or inefficient for the fulfilment of the objective pursued by the Member. The AB in EC – Sardines used Articles 3.1 and 3.3 as context, holding that like those articles under the SPS Agreement, Members’ ability to deviate from international standards as a basis for measures under Article 2.4 of the TBT Agreement was not an exception. Rather, it was a right given to Members, and a complaining party would bear the burden of showing that international standards are in fact inappropriate for fulfilling the objective of the responding Member.Footnote 80 Accordingly, it was for the complainant to show that a technical regulation is not based on an international standard and that international standards are adequate to fulfil the legitimate objectives of the responding member.Footnote 81
The AB referred to its jurisprudence on Article XX of the GATT while interpreting Article XIV of the GATS in US – Gambling. Article XIV is analogous to Article XX and follows a similar structure (enumeration of policy objectives in sub-paragraph with an overarching requirement for measures not to be discriminatory or operate as a disguised restriction to trade in the Chapeau). The GATS, concluded in 1994, is a more recent agreement compared to the GATT. However, the AB used a consistent interpretive approach to both agreements. In US – Gambling, the AB reiterated that the exceptions provision under Articles XX and XIV gave Members the right to set their own desired level of protection with relation to the policy objectives enumerated in the exceptions. While the responding Member had to demonstrate the necessity of the measure, it was for the complaining party to demonstrate the existence of alternative measures, if any. These measures proposed by the complaining party would be considered alternatives only if they were equally feasible for the responding member, did not impose an undue burden, and achieved the level of protection set by the responding Member. The treatment of exceptions under the GATS and the GATT is a valuable example of cross-fertilisation between agreements and the AB’s attempt to maintain internal coherence.
The Enabling Clause and special and differential treatment provisions are also examples of how exceptions are treated differently depending on their object and purpose. The Enabling Clause allows developed country Members to give enhanced market access to products from developing country Members. It is thus an exception to Article I.1 of GATT that requires that Members accord to all Members, immediately and unconditionally, the same level of treatment without favouring one Member over others. Despite being characterised as an exception, the general rule for allocation of burden of proof used for exceptions does not strictly apply to the Enabling Clause. In EC – Tariff Preferences, the AB noted the special and fundamental nature of the Enabling Clause to the WTO DSS. Pursuant to its important role, the AB held that a complaining party had to do more than simply allege inconsistency of a measure with Article I.1 of GATT, it has also to explain why the challenged measure is also inconsistent with the provisions of the Enabling Clause.Footnote 82 Specifically, a complaining Member alleging a violation of the Enabling Clause would have to explain which conditions of the Enabling Clause were not met by the provider of the special and differential treatment. It is only upon such identification that the burden of proof would switch to the defending party.
In the light of the extensive requirements set forth in the Enabling Clause … a complaining party cannot, in good faith, ignore those provisions and must, in its request for the establishment of a panel, identify them and thereby ‘notif[y] the parties and third parties of the nature of [its] case’. For the failure of such a complaining party to raise the relevant provisions of the Enabling Clause would place an unwarranted burden on the responding party.Footnote 83
The AB adopted a similar line of reasoning when interpreting Article 27.4 of the SPS Agreement in Brazil – Aircraft. Article 27 is a special and differential treatment provision under the SCM Agreement and allows developing country Members to maintain export subsidies that are required for their development needs. Article 27.4 contains certain conditions that developing country Members need to fulfil in order to avail of the special and differential treatment under Article 27; for instance, developing country Members need to phase out export subsidies in a progressive manner and not increase their level of export subsidies. The AB found that the conditions under Article 27.4 are ‘positive obligations’ and not ‘affirmative defences’.Footnote 84 Accordingly, the burden of proof falls on the complaining party to demonstrate that any of the conditions set out in Article 27.4 have not been complied with by a developing country Member.Footnote 85
Therefore, as may be seen from the above cases, the interpretation of a provision as a positive right, as opposed to an affirmative defence, determines the burden of proof applicable in a present case.
9.3.5 Agreement at the Time of Conclusion of the Treaty – Article 31(2) of the VCLT
Article 31(2) of the VCLT elaborates on two sources of ‘context’ for the purposes of interpretation of a treaty. It refers to any agreement relating to the treaty that was made between all the parties in connection with the conclusion of the treaty and any instrument made by one or more parties in connection with the conclusion of the treaty and accepted by other parties as an instrument related to the treaty. In EC – Computer Equipment, the AB noted that the Panel erred in not considering the International Convention on the Harmonized Commodity Description and Coding System, and its Explanatory Notes, in interpreting the terms of Schedule LXXX. Although they did not explicitly refer to these as falling within the scope of Article 31(2), they do note that the EC and the United States were parties to the Harmonized System during the Uruguay Rounds implying that this could be within the scope of agreement at the time of conclusion of the treaty.Footnote 86
As noted by the AB in China – Auto Parts, this context is relevant for a treaty interpreter to the extent that it may shed light on the interpretative issue to be resolved. It is not just sufficient that the agreement or instrument fall within the scope of Article 31(2). The AB narrows the scope of Article 31(2) further by stating that the agreement or instrument must have some pertinence to the language being interpreted that renders it capable of helping the interpreter determine the meaning of such language. In China – Auto Parts, while it was accepted that the Harmonized System is apt to shed light on the meaning of terms used in the WTO Members’ Schedule of Concessions, it was stated that it does not automatically imply that it is also context relevant for the interpretative question faced by the Panel.Footnote 87 The interpretative task of the Panel was the assessment of the respective scope of application of ‘ordinary customs duties’ in the first sentence of Article II:1(b) and ‘internal charges’ in Article III:2 of the GATT. Therefore, the Harmonized System was not considered context relevant for such interpretative exercise.
In EC – Chicken Cuts, the AB noted that the Harmonized System would be such relevant context for the interpretation of the EC Schedule. The interpretative task was of the term ‘salted’ in heading 02.10 of the EC Schedule. The broader context includes the other headings in Chapter 2 of the EC Schedule, other WTO Member Schedules, as well as the Harmonized System, although not formally a part of the WTO Agreement.Footnote 88
On the substantive requirements under Article 31(2), the AB in US – Gambling found that the W/120 and the 1993 Scheduling Guidelines did not constitute sufficient context for the interpretation of the United States’ GATS Schedule. It was noted that the parties in the negotiations had not accepted them as agreements or instruments related to the treaty. The AB has also excluded from the scope of Article 31(2), jurisprudence of the WTO DSS,Footnote 89 and the Tokyo Round Subsidies Code, which was a predecessor agreement.Footnote 90
9.3.6 Subsequent Agreement, Subsequent Practice, and Relevant Rules of International Law – Article 31(3) of the VCLT
9.3.6.1 Subsequent Agreement Regarding Interpretation or Application of its Provisions
Article IX:2 of the WTO Agreement sets out specific requirements for decisions that may be taken by the Ministerial Conference or the General Council to adopt interpretations of provisions of the WTO covered agreements. However, these are exclusively intended to clarify the meaning of existing provisions and should not be used to undermine the amendment provisions under Article X. The AB in EC – Bananas III has noted that a multilateral interpretation pursuant to Article IX:2 is akin to a subsequent agreement recognised under Article 31(3)(a) of the VCLT on the interpretation of the concerned agreements.Footnote 91 However, the AB in US – Clove Cigarettes emphasised that Article IX:2 of the WTO Agreement, and Article 31(3)(a) of the VCLT have different functions and have different legal effects.Footnote 92 In order to fall within the scope of Article 31(3)(a), it is necessary to look at the substance, rather than the form of the agreement. Therefore, the AB found that a decision adopted by Members at the Doha Ministerial Conference may constitute a ‘subsequent agreement’ on the interpretation of the term ‘reasonable interval’ in Article 2.12 of the TBT Agreement, under Article 31(3)(a) of the VCLT.Footnote 93 The AB in US – Tuna II held that the TBT Committee Decision on international standards is a ‘subsequent agreement’ for the purpose of Article 31(3)(a) since it was adopted subsequent to the conclusion of the TBT Agreement by consensus and with the objective of clarifying the application of the TBT Agreement.Footnote 94
9.3.6.2 Subsequent Practice Establishing Agreement Regarding Its Interpretation
In establishing ‘practice’ within the meaning of Article 31(3)(b) of the VCLT, the AB in US – Gambling identified two necessary elements: (i) that there must be a common, consistent, discernible pattern of acts or pronouncements; and (ii) those acts or pronouncements must imply agreement on the interpretation of the relevant provision. In the said case, speaking of the 2001 Guidelines adopted by the Council for Trade in Services, it was concluded that this could not constitute subsequent practice for the interpretation of the GATS as this was in the context of negotiation of future commitments. Therefore, such Guidelines could not constitute an agreement regarding Members’ interpretation of existing commitments.Footnote 95
Now, coming to the question of how many parties need to undertake a ‘practice’ to satisfy the threshold of Article 31(3)(b), the AB in EC – Chicken Cuts provides guidance. While clarifying that it would be possible to establish a common intention of all the parties, even if the practice has not been undertaken by all the parties, the AB was interpreting the tariff commitments in the WTO Schedule of the European Communities. However, the AB disagreed with the Panel that the practice of one Member alone could establish subsequent practice as per Article 31(3)(b). There was a need to establish an agreement of all the Members, even those that had not engaged in the said practice. The mere lack of reaction or protest to a practice by one Member, although sufficient in some cases, cannot in all cases be sufficient to establish agreement with the interpretation of the Member.Footnote 96
It is also necessary to recall the caution advocated by the AB in Japan – Alcoholic Beverages II in relying on ‘subsequent practice’ for purposes of interpretation, stating that it must not lead to interference with the ‘exclusive authority’ of the Ministerial Conference and the General Council to adopt interpretations of WTO covered agreements that are binding on all Members as per Article IX:2 of the WTO Agreement.Footnote 97
9.3.6.3 Relevant Rules of International Law Applicable in the Relations Between the Parties
There are three elements to be established in order to fall within the scope of Article 31(3)(c) of the VCLT: the principle must be a ‘rule of international law’, the rule must be ‘relevant’, and lastly, such rule must be applicable in the relations between the parties. Regarding the first two of these criteria, the AB in US – Anti Dumping and Countervailing Duties elaborated that:
First, the reference to ‘rules of international law’ corresponds to the sources of international law in Article 38(1) of the Statute of the International Court of Justice and thus includes customary rules of international law as well as general principles of law. Second, in order to be relevant, such rules must concern the same subject matter as the treaty terms being interpreted.Footnote 98
Now, coming to the final element of Article 31(3)(c), the parties to which the rule is relevant, there is still uncertainty as to the threshold to be satisfied. This becomes important as the relevant rule can be a rule of customary international law, that is generally applicable to all parties, or a treaty rule, that may be applicable only to certain parties. The question that arises is whether the term ‘the parties’ refers to the parties to a present dispute, or whether it means parties to the WTO Agreement as a whole.
The European Communities in EC – Biotech argued that the WTO covered agreements must be interpreted and applied by reference to relevant rules of international law arising outside the WTO context, as reflected in international agreements and declarations. They argued that the 1992 Convention on Biological Diversity and the 2000 Cartagena Protocol on Biosafety to the Convention on Biological Diversity fall within the scope of Article 31(3)(c) of the VCLT for the purposes of interpretation of the SPS Agreement, TBT Agreement, and GATT 1994. The Panel makes the following observations about the threshold requirements under Article 31(3)(c):
Furthermore, and importantly, Article 31(3)(c) indicates that it is only those rules of international law which are ‘applicable in the relations between the parties’ that are to be taken into account in interpreting a treaty. This limitation gives rise to the question of what is meant by the term ‘the parties’. In considering this issue, we note that Article 31(3)(c) does not refer to ‘one or more parties’. Nor does it refer to ‘the parties to a dispute’. We further note that Article 2.1(g) of the Vienna Convention defines the meaning of the term ‘party’ for the purposes of the Vienna Convention. Thus, ‘party’ means ‘a State which has consented to be bound by the treaty and for which the treaty is in force’. It may be inferred from these elements that the rules of international law applicable in the relations between ‘the parties’ are the rules of international law applicable in the relations between the States which have consented to be bound by the treaty which is being interpreted, and for which that treaty is in force. This understanding of the term ‘the parties’ leads logically to the view that the rules of international law to be taken into account in interpreting the WTO agreements at issue in this dispute are those which are applicable in the relations between the WTO Members.Footnote 99
The Panel therefore concluded in favour of a narrow interpretation of this clauseFootnote 100 because all WTO Members, including some parties to the dispute, were not parties to the Convention on Biological Diversity and the Biosafety Protocol. However, given that even the more liberal requirement was not satisfied, as the disputing parties were not all parties to the Convention on Biological Diversity and the Biosafety Protocol, the Panel in effect refused to consider if the term ‘the parties’ in Article 31(3)(c) of the VCLT was a reference to all the parties to treaties.
Later, the AB in EC – Aircrafts noted that in a multilateral context like the WTO, a balance is required to be struck between the individual WTO Member’s international obligations and ensuring a harmonious approach to interpretation of WTO law among all WTO Members.Footnote 101 This AB report suggests a move away from a purely conservative approach. However, in this case, the AB did not proceed to settle this issue as the second requirement under Article 31(3)(c) relating to relevance of the rule was not satisfied. Therefore, the AB has yet to conclusively pronounce on this issue, and it is presently under consideration by the ILC study group on fragmentation of international law and stands unresolved.Footnote 102
At this juncture, it is also necessary to explain a peculiarity of the WTO DSS with respect to application of rules and interpretation of rules. This is particularly important in the context of understanding the relationship between WTO covered agreements and general international law. The mandate of the WTO DSS, through Panels and the AB, is to determine whether the provision of WTO covered agreementsFootnote 103 have been violated. The provisions of the DSU governing the terms of reference to Panels,Footnote 104 on function of Panels,Footnote 105 and recommendations of Panels and ABFootnote 106 limit in various ways the applicable law before the WTO DSS. In all these instances, the applicable law is restricted to WTO covered agreements, and the WTO DSS can only apply these WTO rules in any given dispute.Footnote 107 However, this restriction does not imply clinical isolation of the WTO rules from the rest of international law.Footnote 108 This restriction is precisely what makes Article 31(3)(c) of the VCLT an important tool in the interpretation of WTO covered agreements: It is an entry point for the relationship between WTO rules and public international law and a mechanism to promote coherence in international law. This makes the scope of Article 31(3)(c) and the interpretation of the term ‘the parties’ a critical determinant in allowing Panels and the AB to use non-WTO rules. If a strict and narrow interpretation of this term is adopted, to mean all WTO Members, this detracts from allowing Members to comply cumulatively and simultaneously with all their international obligations.
In this regard, an important consideration to be kept in mind with respect to the WTO Agreement is that the membership includes customs territories having full autonomy of its trade policies. However, other treaties do not include such actors within the scope of their membership. If a narrow interpretative approach is adopted to determine the scope of ‘parties’ in Article 31(3)(c) as meaning all the parties to the treaty, it would restrict the possibility of taking into account various other international agreements that may be relevant for the interpretative exercise and to promote coherence.
9.4 Supplementary Means of Interpretation and Treaties Authenticated in Multiple Languages
Articles 32 and 33 of the VCLT are considered customary international law along with Article 31, which has been the subject of discussion thus far.Footnote 109 When there are any gaps or ambiguity that persist regarding the meaning of a treaty term after the application of Article 31, the VCLT provides for further rules of interpretation under Articles 32 and 33. Recourse to supplementary means of interpretation under Article 32 can be used to confirm the meaning resulting from the application of Article 31 or to clarify it. Supplementary means of interpretation can be used when the meaning of a treaty term after the application of Article 31 is ambiguous or obscure or leads to a result that is manifestly absurd or unreasonable.Footnote 110 Article 33 of the VCLT is pertinent in the context of the WTO as the texts of the covered agreements have been authenticated in three languages – English, French, and Spanish. According to Article 33 of the VCLT, the texts in each of these languages would be authoritative.
9.4.1 Article 32 – Supplementary Means of Interpretation
The VCLT mentions preparatory work and circumstances under which the treaty was concluded as supplementary means of interpretation. The AB has emphasised that Article 32 does not provide an exhaustive list and that an interpreter retains flexibility when considering sources that may shed light on the common intention of parties.Footnote 111 In EC – IT Products, the panel held that HS2007 (Harmonized System)Footnote 112 could be a supplementary means of interpretation though it was concluded after the covered agreements and does not constitute preparatory work.Footnote 113 The panel noted that HS Codes are subject to evolution and if a current HS Code reflects the intention of parties at the time of concluding the treaty, it would serve as a supplementary means of interpretation.Footnote 114 The panel ultimately did not rely on HS2007 in this dispute as it found that the updated HS code did not reflect the common intention of parties when the treaty was concluded.
Supplementary means of interpretation have been used on several other occasions to confirm the meaning of treaty terms. In Canada – Dairy and US – Gambling, the AB used supplementary means to clarify the meaning of entries in the goods and services schedules of Canada and the US, respectively. The supplementary means used in Canada – Dairy were the circumstances surrounding the conclusion of the treaty, namely negotiations between Canada and the US on reciprocal market access. Scheduling Guidelines were used as a supplementary means in US – Gambling.Footnote 115 In the context of preparatory work, the AB has been cautious while giving weight to the negotiating history of a provision because there is no official record of negotiations for the WTO.Footnote 116
When considering circumstances of the conclusion of a treaty as a supplemental means of interpretation, the value of unilateral practices of Members has often come up.Footnote 117 With respect to practices relating to tariff classifications, the AB has held that the practice of one Member would have limited value but would not be wholly irrelevant. In EC – Computers, the AB found that the panel had erred by not considering the tariff classification practice of the US.Footnote 118 In EC – Chicken Cuts, the AB broadened the scope of things that could be considered ‘circumstances of the conclusion’ of a treaty to include consistent classification practice of customs authorities, legislations’ and judgemnts of domestic courts.Footnote 119 Dispute settlement reports have consulted a variety of sources under Article 32 of the VCLT. However, panels and the AB have been cautious when discerning a common interest from the negotiating history of the WTO as there is no official record.Footnote 120
9.4.2 Article 33 – Treaties Authenticated in Two or More Languages
The last paragraph of the WTO Agreement unequivocally states that the English, French, and Spanish language versions of the treaty are authentic. When a treaty is authentic in more than one language, the presumption is that the provisions of all treaty texts have the same meaning and reflect the common intention of parties.Footnote 121 The Spanish and French versions of the GATT were used by the AB to explain the meaning of ‘like’ products under Article III:4,Footnote 122 when deciding between two meanings that could be ascribed to the preposition ‘under’ in Article X:2 of the GATT. Specifically, the AB was examining whether ‘under’ qualified the phrase ‘rate of duty’. After referring to the French and Spanish versions, which used the phrase ‘en vertu de’ and ‘en virtud de’ (which translates in English as ‘by virtue of’), the AB concluded that ‘under’ could not qualify the phrase ‘rate of duty’ as this would not be a possible construction in the Spanish and French versions.Footnote 123 The AB thus opted for an interpretation that was reconcilable with the other two versions.Footnote 124 The Panel in United States – Origin Marking (Hong Kong, China) refered to the texts in all three authenticated languages to find that not every tension or difference in international relations is an ‘emergency in international relations’. The situation has to represent a breakdown or near breakdown of international relations.Footnote 125
Despite the covered agreements being authentic in three languages, Members will often designate only one or two of these languages as authentic for the purpose of their Schedules. Argentina’s Schedule for specific commitments in Services is authentic only in Spanish.Footnote 126 Similarly, the Schedule of Concessions for goods of Canada was authenticated only in English and French at the conclusion of the Uruguay Round.Footnote 127 The latest version of the Schedule, however, is authentic only in English.Footnote 128 Following this practice, the Accession Protocol of Russia explicitly states that the protocol itself is authentic in the three official languages; however, the Schedule annexed is authentic only in English.Footnote 129
One should also note that the negotiations during the Uruguay Rounds took place in English and the agreements were translated into French and Spanish before being authenticated. Thus, there is no formal hierarchy of languages in the WTO, and one may say that the WTO Agreement prohibits such a hierarchy. However, the question of whether, in practice, the authentic texts operate with a hierarchy is one worth exploring. Van Damme, for instance, posits that the AB has often failed to respond to Members contentions that are based on comparisons between texts of converted agreements in the three languages.Footnote 130 It would be interesting to see how claims made by a WTO Member relying on the French or Spanish text as the primary treaty text would be interpreted in light of the English text, before a WTO DSS body.
9.5 Other Principles Applicable to Treaty Interpretation in the WTO Context
While the VCLT codified some of the relevant customary rules of treaty interpretation, they are not exhaustive. There are several uncodified principles of treaty interpretation that Panels and the AB have resorted to. The AB in US – Gasoline held that the principle of effectiveness is one of the corollaries of the general rule of interpretation under the VCLT. An interpreter should, in light of good faith and the object and purpose of the treaty,Footnote 131 give meaning and effect to all the terms of the treatyFootnote 132 harmoniously.Footnote 133 The principle of evolutionary interpretation was used by the AB in US – Shrimp while holding that the term ‘natural resources’ in Article XX(g) of the GATT is not static and should be interpreted in light of ‘contemporary concerns of the community of nations’.Footnote 134 In factual situations where two laws apply simultaneously, Panels and the AB have used the lex specialis doctrine to apply the one that applies specifically to the factual situation over the general one.Footnote 135
9.6 Interpretation v. Application
Panels under the WTO DSS are, under their terms of reference, restricted from applying any legal instrument other than the covered agreements in examining a dispute referred to them.Footnote 136 Pursuant to Article 19 of the DSU, a Panel or AB can only make a finding and recommendations on the challenged measure’s alleged inconsistency with a covered agreement.Footnote 137 No finding or recommendation can be made with respect to any legal instrument that is not a covered agreement.Footnote 138
In Peru – Agricultural Products, the AB held that Members cannot enter into an agreement to maintain WTO-inconsistent measures. While Peru relied on Article 41 of the VCLT (agreements to modify multilateral treaties between certain of the parties only) to justify such WTO-inconsistent measures, the AB held that specific provisions on amendments, waivers, or exceptions for RTAs under the WTO covered agreements would prevail over the general provision in the VCLT.Footnote 139
However, this does not mean that non-WTO covered agreements have no role to play in WTO dispute settlement process. As stated by the AB in US – Gasoline, WTO covered agreements should not be interpreted in clinical isolation. As discussed herein above, the customary rules of interpretation may cause the interpretation of WTO provisions to be altered and influenced by other international rights and obligations. Article 31(3)(c) of the VCLT can be particularly important in this regard.Footnote 140
9.7 Conclusion
The WTO dispute settlement system, through panels and the AB, has used the tools and principles of treaty interpretation to maintain an internal coherence between the various WTO covered agreements. The peculiarities of the WTO rules must be kept in mind while understanding the manner in which the WTO DSS employs customary rules of interpretation, specifically relating to the principle of the Single Undertaking.
The process of horizontal cross-fertilisation between agreements during the interpretative exercise has contributed to reducing conflict in the interpretation of similar provisions. By prioritising the principle of effective interpretation, the AB has ensured that Members’ rights continue to be recognised in contemporaneous circumstances which may not have been foreseen by GATT negotiators (for instance, the interpretation of exhaustible natural resources in US – Shrimp). That context is found across various provisions of the WTO covered agreements and in the immediate surrounding words of the treaty term in question and this has allowed dispute settlement reports to maintain consistency without compromising on the specific purpose of provisions in different WTO covered agreements. For instance, when deciding on issues relating to burden of proof for provisions framed as exceptions, the AB used the context and object and purpose of these provisions to identify how burden of proof should be allocated. Likewise, in EC – Tariff Preferences, the AB found the Enabling Clause was an exception but one of a different shade given its objective to encourage non-most-favored-nation (non-MFN) treatment for developing countries by developed countries. The use of the customary rules of interpretation has thus facilitated the coherent application of WTO covered agreements, which have myriad rules but no formal normative hierarchy that informs their application. Further, they hold the potential, through provisions like Article 31(3)(c) of the VCLT, to avoid clinical isolation of the WTO rules and promote coherence between WTO rules and international law.
10.1 Introduction
This chapter aims to analyze the interpretation of the territoriality requirement under international investment treaties and explore the application of customary international law and the Vienna Convention on the Law of Treaties (VCLT), in particular Article 31, in international investment arbitration. It focuses on whether and to what extent special rules and methods pertaining to the process of interpretation have emerged in the field of international investment law.Footnote 1 International investment treaties, as a rule, extend protection only to assets that qualify as ‘investments’. Similarly, the foreign private party’s right to initiate dispute resolution against the host State under a treaty or investment law extends only to disputes arising out of that party’s investments.Footnote 2
The reason for this limitation is the perception among both less-developed and industrialized States that private investment is a catalyst for development and prosperity.Footnote 3 International investment treaties, including the Washington Convention and bilateral investment treaties (BITs),Footnote 4 constitute a conscious, and potentially politically costly, derogation of State sovereignty.Footnote 5 The State’s sacrifice of freedom of action is done for a particular purpose, and that purpose closely defines the scope of operation of international investment treaties. The primary motivation for both developing and developed States to enter into these agreements is, in the words of the Washington Convention preamble, ‘the need for international cooperation for economic development, and the role of private international investment therein’, along with the need to create an international dispute resolution mechanism that can effectively protect foreign investments.Footnote 6 Thus, there is a recognition that a certain category of cross-border economic action, called ‘foreign investment’, helps expand welfare around the globe.Footnote 7 In addition, the majority of BITs indicate in the preamble their purpose to protect investments. The corollary is that other kinds of activities are not considered to have the same effect: short-term capital flows, particularly those involving speculation in debt or currency, are widely seen by host States as sources of monetary or economic instability, rather than stability and prosperity.Footnote 8 The derogation of State sovereignty necessary for a direct investor-State dispute resolution system is therefore generally viewed to be worth undertaking to the extent that it helps a developing country compete to attract ‘good’ asset flows, designated as ‘investments’.Footnote 9
However, one of the most challenging issues in international investment treaties is defining what qualifies as an ‘investment’. This definition is crucial because it determines whether a foreign investor can initiate dispute resolution under a treaty or contract and whether the arbitral tribunal has jurisdiction ratione materiae.Footnote 10 Treaties signed before the 1990s often provided a relatively restricted definition of ‘investment’, sometimes expressly linking the concept to ‘capital’ or requiring that a local business enterprise be established to qualify for protection.Footnote 11 Other BITs based on developed countries modelsFootnote 12 provided a broader and a more descriptive definition of investments including new forms of investments based on a non-exhaustive list of assets.Footnote 13
The vast majority of international investment treaties include a specific wording in defining the term ‘investment’ or ‘covered investment’, requiring the investment to be made ‘in the territory’ of the host State. A typical example of a Treaty defining ‘investment’ is Article 1(2)(a) of the Colombia-UK BIT (2010) according to which ‘Investments means every kind of economic asset, owned or controlled directly or indirectly, by investors of a Contracting Party in the territory of the other Contracting Party, in accordance with the law of the later.’Footnote 14 According to this condition, that the investment shall be made ‘in the territory of the host State’, it is evident that ratione materiae jurisdiction relies upon a territorial requirement. Arbitral tribunals follow specific rules and methods of interpretation in determining the territoriality requirement of investments in international investment arbitration.
On many occasions, arbitral investment tribunals have adopted interpretative approaches that prioritize the object and purpose of investment treaties – typically the promotion and protection of foreign investment – over other interpretative elements outlined in Articles 31 to 33 of VCLT.Footnote 15 The object and purpose of an international investment treaty is usually referred to in the preamble of the treaty, which has a different wording and style than the main text of the treaty. This chapter explores how arbitral tribunals use the object and purpose of international investment treaties in interpreting territoriality, according to the rule of interpretation set forth in Article 31 of the VCLT. However, as it will be shown, the use of the object and purpose of a treaty shall not be used in a way to extend the obligations of the respondent State by overriding the text of the treaty.Footnote 16
Arbitral tribunals tend to interpret the treaty’s scope ratione loci and ratione materiae more broadly, requiring the territorial application of international investment treaties as compatible with the object and purpose of the treaties. Arbitral tribunals, in these instances, seem to lean towards pro investore interpretative constructions by prioritizing teleological interpretation and the principle of effectiveness, sometimes over other interpretative elements, including that of the principle of systemic integration. They do so, by resorting to specific objectives such as the protection and promotion of foreign investments, and the economic development of the States, considering them as the main purpose of international investment treaties.
As will be analyzed in Section 10.2, such methods may apply to economic services performed outside the national jurisdiction of host States. In more detail, the economic dimension of the territorial requirement may differ according to the interpretative approach taken by investment tribunals. Section 10.2.1 will focus on the ‘economic benefit’’ approach. Section 10.2.2 will supplement this analysis by examining the ‘economic unity of the investment’ approach.
Section 10.3 will then argue that the interpretative methods employed by investment tribunals that give preference to teleological and effectiveness interpretative constructions, and which prioritize the protection of the investor (pro investore interpretation), may also apply to foreign investments established in the territory of another state where the host State exercises effective control but does not have sovereign rights. In more detail, this chapter will delve into the extraterritorial application of BITs in situations where these investments are located in occupied areas, such as recent arbitration cases that are related to Russia’s illegal annexation of Crimea (Section 10.3.1). While the primary focus remains on the investment law implications, it is important to acknowledge that the scenarios under discussion also engage broader and complex questions of sovereignty, territorial status and the legality of competing claims. Although these issues fall outside the core scope of the present analysis, their relevance cannot be overlooked, and they are therefore briefly addressed at appropriate points in the chapter to provide necessary context.
10.2 The Territorial Nexus between the Investment and the Host State (ratione materiae): The Economic Dimension of the Territorial Requirement
The notion of investment and its definition has yet to become a serious barrier to jurisdiction in investor-State arbitration.Footnote 17 Nevertheless, respondent States have raised the issue as a jurisdictional objection in a large number of ICSID cases. Tribunals have tended to approach each such objection largely on its own merits and with regard to the circumstances of the case at hand.Footnote 18
According to the majority of international investment treaties, the territorial requirement of investment is considered as a jurisdictional condition. Only investments made ‘in the territory’ of the host State can be a ‘protected investment’. The territoriality requirement plays a central role in determining the scope of application ratione materiae of BITs, as it links the protection afforded by the treaty to investments made within the territory of the host State.Footnote 19 While the ICSID Convention does not explicitly define the territorial requirement, it implicitly incorporates this notion through its reference to a ‘dispute arising directly out of an investment’ under Article 25. In practice, ICSID tribunals often rely on the territorial scope defined in the underlying BIT or investment contract to assess whether the dispute falls within their jurisdiction.Footnote 20 Thus, arbitral tribunals have jurisdiction ratione materiae to adjudicate a case only when the investment at stake is located in the territory of the host State.Footnote 21 However, unlike tangible assets that have physical presence and it is easy to identify the investment (e.g. immovable property), it is difficult to determine whether non tangible assets, such as contractual rights, financial transactions and economic activities performed outside of the host State, are ‘located’ in the territory of the host State. Those assets have an immaterial nature as they lack a physical location.
In general, as a jurisdictional condition for the arbitral system of dispute resolution, ‘the conception of an investment at the jurisdictional stage can only serve the object and purpose of the treaty if it is conducive to a relatively high degree of legal certainty’.Footnote 22 One of the necessary elements in determining the investment concept is the territorial connection with the host State. In addition, considering the notion of territory, international investment treaties often implicitly or explicitly tie the concept of territory to the sovereign power of the host State. Sovereign power refers to the State’s capacity to govern and exercise authority over its territory and people. This includes creating and enforcing laws, regulating economic activities and upholding public order. The exercise of enforcement jurisdiction is particularly significant as it denotes not only a State’s legal authority but also its actual ability to apply and enforce its laws within a given territory.Footnote 23 Actually, the territorial link between an investment and the host State and the extent of sovereign power of contracting states to enforce their laws are at the heart of international investment law.Footnote 24 Otherwise, arbitral tribunals cannot accept that the alleged violations fall within the jurisdiction of the host State. Therefore, no international responsibility can be attributed to the host State if it has no jurisdiction and sovereign power over the investment or the investor. Thus, the essential rule of international investment law that contracting States must avoid any arbitrary behaviour towards foreign investments in their territory (the so called ‘political’ or ‘sovereign’ risk)Footnote 25 is combined with their obligation to enforce their national laws ‘consistently’ along with their responsibility to protect investments.Footnote 26 In fact, the host State’s obligation to protect investments located in its territory is the primary objective of all international investment treaties, along with the economic development of the host State and the enhancement of economic cooperation between the contracting States. Host States are not required to protect investments located outside their territory, unless a territorial link is established.Footnote 27
Where contractual rights or intangible ‘assets’ constitute an investment, there is still a need for that investment to qualify for a territorial link with the host State. Therefore, it is a requirement of international law that the territorial jurisdiction of the host State is necessary even for non-tangible investments, to enforce its laws in accordance with its general obligation to protect the investment.
For this reason, this section seeks to identify methods of interpreting territoriality applied by arbitral tribunals in determining their jurisdiction for cases involving financial transactions or other economic activities.Footnote 28
To interpret territoriality according to customary law as enshrined in Article 31 VCLT, there are several criteria applied by arbitral tribunals in order to satisfy the condition of the BITs on the definition of protected investment. Taking into consideration these criteria, there are two approaches used in arbitral practice: (i) the subjective approach to the ‘economic utility of the investment for the host State’, the so called ‘economic benefit test’; and (ii) the integrated aspect of the investment, the so called ‘economic unity of the investment’ test.Footnote 29
10.2.1 The ‘Economic Benefit’ Test
The ‘economic benefit’ test or approach was taken by arbitral tribunals in cases related to various financial instruments issued by the host State, such as promissory notes,Footnote 30 bonds,Footnote 31 hedging agreements,Footnote 32 loansFootnote 33 and others. According to these cases, arbitral tribunals interpreted the territorial requirement by using economic characteristics of the investment, such as whether there is any economic contribution to the host State, which is an assertion made simply favouring an interpretation that gives full effect to the rights of investors. For example, the arbitral tribunal in Abaclat adopted a functional (economic) interpretation of the investment’s territorial-link requirement for the financial assets at stake to be considered as ‘covered investments’ under the Italy-Argentina BIT:
With regard to investments of a purely financial nature, the relevant criteria should be where and/or for the benefit of whom the funds are ultimately used, and not the place where the funds were paid out or transferred. Thus, the relevant question is where the invested funds ultimately made available to the Host State [sic] and did they support the latter‘s economic development … it was used by Argentina to manage its finances, and as such must be considered to have contributed to Argentina’s economic development and thus to have been made in Argentina.Footnote 34
For some types of investment like financial instruments and transactions taken outside the host State, arbitral tribunals considered that physical presence of an investment should not be a decisive factor, because the relevant criteria cannot be the same as those applying to an investment with a tangible nature. An important factor for the territorial requirement of investments with a purely financial nature should be whether such financial transactions were made available and utilized for the economic benefit of the host State.Footnote 35
Such an interpretative approach of the territorial requirement based on the economic benefit condition is problematic. In fact, by replacing the required territorial link between the investment and the host State with the condition of the host State’s economic benefit, it creates different results than the textual meaning of the investment treaties’ provisions.Footnote 36 According to arbitral tribunals, the ‘economic benefit’ test replaces the requirement that an investment be ‘made in the territory of the host State’ by a subjective criterion, that an investment be made for the ‘benefit of the host State’. In this vein, there is neither a need to localize financial instruments nor to demonstrate whether financial entitlements are associated with a specific investment project located in the host State, therefore invalidating territoriality as a jurisdictional requirement in international investment arbitration. Finally, concerning the application of the benefit test to sovereign debt instruments like the bond cases in Argentina, apart from the difficulty to prove that the host State is the ultimate beneficiary of financial entitlements on the secondary market,Footnote 37 it is quite unclear how to establish the required connection of the funds generated by the purchase of such instruments for the benefit or economic development of the host State.Footnote 38 Otherwise, if arbitral tribunals assume that any financial instrument that can benefit the host State can satisfy the concept of ‘investment’ or ‘protected investment’ through such a ‘functional’ interpretation of the territoriality requirement, then there is no substantial difference between foreign direct investments and portfolio investments or simple cross-border payments.Footnote 39 Therefore, such a broad and loose interpretation of territoriality leads to a subjective and absurd result that is contrary to the textual interpretation of the territorial clause contained in most international investment treaties.
10.2.2 The ‘Economic Unity of the Investment’ Test
In order to fulfil the territorial requirement of investment and establish the ratione materiae jurisdiction of arbitral tribunals, it is important to justify a connection between the financial operation and the territory of the host State. Such territorial nexus cannot be circumvented by a loose and exaggerated interpretation of the territorial requirement contained in most international investment treaties, transforming the territorial into an economic or functional element.Footnote 40 Judge Abi-Saab in his Dissenting Opinion in Abaclat criticized the opinion of the majority in defining investment and emphasized that the ordinary meaning of the investment made in the territory of the other Party could not be clearer, ‘except by tracing it to a specific project, enterprise or activity in that territory that corresponds to the economic meaning of investment in article 25 of the ICSID Convention’.Footnote 41 As the tribunal held in SGS v Philippines, ‘[i]n accordance with normal principles of treaty interpretation, investments made outside the territory of the Respondent State, however beneficial to it, would not be covered by the BIT’.Footnote 42
Alternatively, arbitral tribunals have developed through their case-law a method of interpreting territoriality based on the ‘economic unity of the investment’.Footnote 43 Such an approach is different to the ‘economic benefit’ concept as it does not circumvent the textual interpretation of territorial clauses but can still be adopted in investments with a non-physical nature or operations performed outside the host State. The ‘economic unity of the investment’ test examines whether each activity is a ‘substantial and non-severable aspect of the overall service’ that is provided in the territory of the host State.Footnote 44 According to this approach, if an activity or a financial transaction is carried outside the host State, and is verified as an integral part of the overall operation (the investment), or can be traced to a specific project that is localized in the territory of the host State, then this activity can qualify as a protected investment in the territory of that State.Footnote 45
This approach, known as the ‘economic unity of the investment’ doctrine, assesses whether or not separate activities can be regarded as part of an overall operation that needs to be performed in the territory of the host State.Footnote 46 For example, in SGS v Philippines, the activity at stake performed outside the Philippines was related to the provision of pre-shipment inspection services for exports directed to the host State with the objective of improving the import trade of the Philippines. Such activities were carried out in accordance with the main goal of the investment contract, the improvement of a reliable inspection certificate system, and were not subdivided with the overall services provided within the Philippines, therefore they were classified as investments made in the territory of the host State.Footnote 47 In this case, as well as in other cases such as Deutsche telecom AG v IndiaFootnote 48 and in Deutsche Bank v Sri LankaFootnote 49 concerning financial instruments, the Tribunal examined the overall purpose of the investor’s activities in order to assess whether the territoriality requirement is fulfilled. It concluded that even if the activities at issue are performed outside the host State or consist of financial instruments, contracts, licences and other agreements or arrangements, which alone do not qualify as an investment, they can still constitute protected investment when they are a substantial and interrelated part of the wider activity that is performed in the territory of the host State.Footnote 50 In conclusion, financial instruments, notwithstanding their remoteness from the economic activity or project in the territory of the host State, have to be interconnected with that activity or project in order to qualify as a ‘protected investment’.Footnote 51 Otherwise, they would probably be identified as mere cross-border trade transactions.Footnote 52
In this regard, for non-tangible investments to be considered covered investments, arbitral tribunals tend to interpret territoriality by applying two different approaches. The ‘economic benefit’ approach represents a subjective and investor-centric method, which tends to decouple the investment from the territory of the host State by focusing primarily on the investor’s economic gain, rather than on where the core investment activities take place. In contrast, the ‘economic unity of the investment’ approach applies a more textually and contextually consistent interpretative method, aligning more closely with the object and purpose of territorial clauses in investment treaties – namely, to ensure that treaty protections apply only to investments genuinely linked to the host State’s territory and regulatory control. This latter approach supports the tribunal’s ratione materiae jurisdiction by reinforcing the territorial scope contemplated in both treaties and contracts.
However, this interpretive trend illustrates the increasing prominence of teleological and effectiveness-based reasoning in investment arbitration. Rather than adhering strictly to the ordinary meaning or textual constraints of territorial clauses, some tribunals appear to prioritize the effective realization of the treaty’s overarching purpose – such as the promotion and protection of foreign investment – even if this requires stretching the geographic or legal boundaries of what qualifies as a territorial link. In this respect, the investment arbitration jurisprudence may signal a divergence from a holistic approach under Article 31(1) VCLT, which requires that treaty terms be interpreted in good faith according to their ordinary meaning, in context, and in light of their object and purpose. Here, the teleological element seems to assume a driver’s seat in the interpretative exercise, sometimes at the expense of textual and contextual fidelity.
In the next section, we examine how arbitral tribunals use a teleological interpretation of the territoriality requirement, not as a condition of BITs to determine a protected investment pursuant to ratione materiae jurisdiction but to determine territory when the investment is located in occupied areas over which a State exercises de facto control.
10.3 The Extraterritorial Application of BITs
The term extraterritorial jurisdiction traditionally refers to a State’s exercise of legal authority over conduct or persons outside its sovereign territory, subject to the limits set by international law. However, in the context of investment arbitration, this term may be misleading. Rather than exercising jurisdiction in a strictly extraterritorial sense, some arbitral tribunals have interpreted BITs as applying to investments located beyond the internationally recognized borders of the host State – such as in occupied territories – so long as the host State exercises effective control over the area. This practice blurs the line between territorial and extraterritorial application, raising important questions about how territorial clauses in BITs are interpreted in light of sovereignty disputes.
Crucially, the question is whether shifts in effective control over a territory may also affect the tribunal’s jurisdiction ratione loci, as jurisdiction under a BIT often hinges on whether the host State had sufficient authority to extend treaty protections to the investment at the relevant time.Footnote 53
Extraterritorial jurisdiction has been jurisprudentially validated by international courts and tribunals, such as the European Court of Human Rights (ECtHR).Footnote 54 Actually, international investment law and international human rights law share foundational principles – such as the protection of individual rights against State interference and access to international adjudicationFootnote 55 – which allows for meaningful interaction between the two fields.Footnote 56 Moreover, observing a growing reference to human rights in investment arbitration case law, it is interesting to explore whether investment tribunals should take into consideration ECHR and other human rights treaties as relevant rules for the interpretation of their respective investment agreements, according to the customary principle of systemic integration as enshrined in Article 31(3)(c) VCLT.Footnote 57
This section examines the notion of extraterritoriality and the methods of interpretation that arbitral tribunals have used under article 31 VCLT in order to assess the territoriality requirement, and their jurisdiction ratione loci to adjudicate a case.Footnote 58 For the purpose of this chapter, the extraterritoriality of a BIT refers to its territorial extension applying to investments made in the territory of a State,Footnote 59 which is partially occupied by the State that is a contracting party to that BIT. In particular, this chapter explores whether the changes of ‘effective control’ over the territoryFootnote 60 affects an arbitral tribunal’s jurisdiction under that BIT.Footnote 61
Following the recent developments of international arbitration related to the illegal annexation of the Crimean Peninsula by Russia, this chapter uses the Crimean conflict as a case study in exploring whether investments that existed prior to the armed conflict and were damaged, not necessarily by the host State, but rather by another State that occupies part of the host State’s territory, can be protected through the BIT framework. On the occasion of the Crimean investment-arbitration cases, this section examines whether international investment treaties apply to occupied territories in view of the effective (or de facto) control of the aggressor State party over that territory.Footnote 62
Notably, it analyzes the Russia-Ukraine BIT applicability in the territory of Crimea as an investment protection mechanism (in the context of disputed borders), by determining the scope of ‘investment’ and ‘territory’, terms that determine the arbitral tribunal’s jurisdiction.
10.3.1 The Protection of Foreign Investments in Occupied Territories: The Crimea Investor-State Arbitrations
Following the 2014 annexation, Ukrainian investors that lost their properties or suffered severe damages initiated several ad hoc arbitral proceedings against the Russian Federation under the UNCITRAL Arbitration Rules, pursuant to the Russia-Ukraine BIT, considering themselves as foreign investors and Crimea as a territory over which Russia exercises de facto control. These proceedings, administered by the Permanent Court of Arbitration (PCA), were seated in Switzerland.
Even though the respondent State (Russia) contested the tribunals’ jurisdiction by selecting not to participate in the process,Footnote 63 several arbitral awards were rendered affirming the tribunals’ jurisdiction and the admissibility of the investors’ claims.Footnote 64 While many of the investor-State arbitrations are at the moment of writing of this chapter still pending, some of the arbitral tribunals proceeded to the adjudication of the dispute on the merits and awarded damages to the claimant, as they found Russia to be in breach of its obligations under the applicable BIT due to unlawful expropriation. Interestingly, the Swiss Federal Supreme Court held public deliberations in two separate appeal proceedings, rejecting Russia’s appeal to set aside the interim awards on jurisdiction rendered by the respected arbitral tribunals.Footnote 65
The disputes focused on the territorial scope of the Russia-Ukraine BIT, on whether the BIT extended to Crimea, over which Russia exercised de facto control. Arbitral tribunals in this case confirmed that the concept of ‘territory’ encompasses regions over which a contracting State exercises de facto control.Footnote 66 Even if BITs do not have any specific explanation for the term ‘territory’ or any reference to ‘effectively controlled’ areas, arbitral tribunals interpret ‘territory’ in accordance with Article 31 VCLT. Regarding the term ‘territory’, the Russia-Ukraine BIT contains wording similar to the majority of BITs,Footnote 67 which must be interpreted according to the ordinary meaning under international law and enhance the twofold object and purpose of the BIT as defined in the Treaty’s Preamble.Footnote 68 Such an interpretative approach was taken in the Ukrnafta & Stabil cases taking into consideration the ‘useful result’ requirement of the BIT’s object and purpose, stating that:
The Appellant rightly does not question that the principles of interpretation of Art. 31 et seq. VCLT are to be observed in interpreting the 1998 Investment Protection Agreement. In particular, according to Art. 31(1) VCLT a treaty is to be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in light of its object and purpose. Together with interpretation in good faith, a teleological interpretation guarantees the treaty’s ‘effet utile.’ If there are multiple possible interpretations, the term to be interpreted is to be assigned the meaning that guarantees its effective application and does not lead to a result that conflicts with the treaty’s object and purpose.Footnote 69
Therefore, a teleological (and grammatical) interpretation (according to Article 31(1) VCLT) supported the fact that the Ukraine-Russia BIT served in its preamble two purposes, the promotion and protection of investments.Footnote 70 A broad protection of investments, including investments located in the territory of the Russian Federation only because of subsequent border changes (even if this border change is unlawful), does not contradict the object and purpose of the Ukraine-Russia BIT.Footnote 71 The object and purpose of the BIT cannot be restricted just because there is a change in the effective control of the territory in question. Conversely, a narrow interpretation of the term ‘territory’ due to the de facto control of the aggressor State would not only leave investments in the territory at stake unprotected (which would go against the object and purpose of the Treaty) but also allow the aggressor State to benefit from its unlawful action without any responsibility or consequence.Footnote 72 Otherwise, a stricto sensu interpretation would leave investors in a legal vacuum. A strict interpretation of territorial scope would deprive arbitral tribunals of jurisdiction over such claims, creating a legal vacuum, as harmful acts taken place in occupied territories would be attributable to no State. Therefore, as it is already referred, the Swiss Supreme Court emphasized the principle of effectiveness method of interpretation.Footnote 73 The tribunal also concluded that it was unnecessary, for the purpose of applying the Ukraine-Russia BIT, to determine whether the annexation of Crimea was lawful under public international law. From the point of view of the object and purpose of an investment treaty, the important fact is to ascertain whether the Contracting Party has effective control (authority) over the territory at stake and not whether that control was acquired legally or illegally. While this reasoning might appear to sideline the international law on occupation, it does not necessarily conflict with it. Rather, it reflects a functional approach according to which investment tribunals assess de facto control to establish jurisdiction, without making a determination on the legality of that control under the law of armed conflict or occupation.Footnote 74
Even in case of subsequent territorial changes, a treaty remains applicable to the entire territory of each contracting State, without the need for a supplementary agreement (Article 29 VCLT) and therefore the illegality of the annexation of Crimea is irrelevant for the purpose of the application of the Ukraine-Russia BIT. Nevertheless, this does not mean that arbitral tribunals recognize any illegal acquisition of territory as legitimate.Footnote 75 On the contrary, the arbitral tribunals emphasized that ‘for the assessment of its jurisdiction under Art. 9 IPA 1998, it was not required to address the question of the permissibility of the accession of Crimea into the Russian Federation or the lawfulness of the associated territorial claims’.Footnote 76 Therefore, the arbitral tribunals adopted the position of the Ukrainian observations (third party submission) according to which Crimea remained Ukrainian territory, but was temporarily under Russian effective control due to the occupation, exclusively for the purposes of the application of the Russia-Ukraine BIT.Footnote 77 Otherwise, such recognition would violate public international law, notably the UN Charter (Article 2 (4)) and would be subject to challenge or annulment.
10.4 Conclusion
This chapter analyzed the interpretation of the territoriality requirement in international investment treaties and investment arbitration in light of customary international law and the Vienna Convention on the Law of Treaties (in particular Article 31). Investigating the extent to which special rules and methods have emerged regarding the interpretation process in the field of international investment law, it is found that the notion of territory is conceived in terms of extending investment protection. Arbitral tribunals interpret the territorial requirement based on the intention of the contracting parties to create favourable conditions for the promotion of investments and economic cooperation. Such an interpretive approach creates an expansive tendency of the territorial application of international investment treaties.
The ‘economic benefit’ approach to the interpretation of territoriality uses one of the BIT’s purposes (namely, the economic development of the host State) in contradiction to the wording of the treaty and, therefore, against the interpretation method of Article 31 of the VCLT. More specifically, the text of jurisdiction clauses contained in most BITs and international investment contracts requires a territorial nexus of the investment at stake with the host State and not one of economic benefit. Such method of interpreting the Treaty’s purpose over-expands the international investment law’s scope of protection, disconnecting the notion of protected investments from the territorial requirement.
On the contrary, the ‘economic unity of the investment’ approach to the interpretation of territoriality seems to follow the territorial requirement of most jurisdiction clauses, as it requires the connection between a financial transaction or an activity carried outside the host State and the specific investment or project that is localized in the territory of the host State. However, in order to satisfy the territoriality requirement, this approach requires that the activities at stake shall form a substantial and integral part of the overall operation carried out within the territory of the host State.
In addition, the significance of the Tribunals’ awards in the Crimea investor-State arbitrations cannot be underestimated, as it was the first time that an arbitral tribunal had found a BIT to be applicable in a territory regarded by the international community as illegally occupied. For the purpose of the application of the Ukraine-Russia BIT, arbitral tribunals found unnecessary to determine the lawfulness of Russia’s control over Crimea. Making a teleological interpretation that was supported by the object and purpose of the Ukraine-Russia BIT in its preamble to protect investments, arbitral tribunals confirmed that the concept of ‘territory’ encompasses regions over which a contracting State exercises de facto control. Otherwise, a strict interpretation of the territorial scope of BITs would deprive tribunals of jurisdiction over such claims, leaving foreign investors in a legal vacuum.
Finally, the conclusions of the Crimea investor-State arbitrations could also apply in the midst of complex and overwhelming situations in the international political arena. In light of the object and purpose of international investment treaties, arbitral tribunals could adopt a ‘pragmatic approach’ in the future by extending the application of the treaty to areas where the aggressor State exercises effective control.
11.1 Introduction
In the two decades that have lapsed since the entry into force of the Rome Statute, the field of international criminal law has grown in both vibrancy and reach. Whilst the International Criminal Court (ICC) is at the centre of the system created by the Rome Statute, States are called to play a key role in investigating and prosecuting core international crimes, in accordance with the principle of complementarity.Footnote 1 In order to do so, States need to adopt national implementing legislation incorporating the crimes at the domestic level. To date, many States have adopted legislation to implement the Rome StatuteFootnote 2 and have, therefore, offered their interpretation of the Statute in the process. However, this engagement has often led to divergent approaches, with several States deviating from the Statute. This chapter explores what happens when there is a clash between what is in the Rome Statute and when core international crimes are interpreted differently within and outside the ICC. It further looks into what happens at the interface. Unpicking this interaction not only offers useful insights into the practice and evolution of the core international crimes provisions but may also contribute to a better understanding of the rules of international criminal law interpretation, as well as pave the way for possible Rome Statute amendments. Whereas many works have focused on the implementation of the Rome Statute, looking at this interface from the interpretation angle has been overlooked, to date.
This chapter will start with a brief consideration of those institutions that gave rise to international criminal law – namely, the Nuremberg and Tokyo International Military Tribunals (IMTs) and the ad hoc Tribunals for the former Yugoslavia and Rwanda. It will consider the influence of customary international law in defining and interpreting core international crimes, as well as its relationship with the principle of legality, a key principle underpinning international criminal justice. Moving then to one of the major instruments of international criminal law of our time – the Rome Statute establishing the ICC – the chapter will discuss to what extent the definitions of crimes contained in Articles 6–8bis of the Rome Statute codify customary international law or rather constitute progressive development in the field. Although these categories of crimes can be regarded as largely reflective of customary international law of the time, it is important to note, as recognised under Article 10 of the Statute, that the exclusion of certain crimes from the Rome Statute or the adoption of retrograde definitions must not be read as limiting or precluding the existing customary international law framework or the progressive development of new customary law outside the Statute. Customary international law in this area has considerably developed alongside the Rome Statute, including through the national laws of States. Notably, when adopting domestic implementing legislation, State Parties have often significantly limited or expanded the scope of application of core international crimes enshrined in the Statute. It is, therefore, crucial to consider how different national core crimes provisions can influence the interpretation of the definitions of core international crimes crystallised in the Rome Statute when the ICC is required to step in owing to the national legal system being unwilling or unable genuinely to investigate or prosecute, in line with the principle of complementarity.
This chapter will consider how this potential new state practice and emerging customary law interacts with the treaty provisions and what this means for their interpretation. This chapter will argue that a distinction should be made between creating new substantive law and an interpretation within the scope of existing law. Subsequent practice or customary international law cannot, therefore, be invoked to unacceptably restrict, broaden, or modify the text of the Statute. Nevertheless, ICC judges need to remain cognisant of how core international crimes have been interpreted through implementation at the domestic level.
11.2 The IMTS and ad hoc Tribunals: Between Customary International Law and the Principle of Legality
The birth of modern international criminal law can be traced back to the Nuremberg and Tokyo IMTs, established by the victorious Allied Powers following the Second World War.Footnote 3 Notably, the definitions of the core crimes in international criminal law – namely, genocide, crimes against humanity, war crimes, and aggression – have been developed at the international level ever since the inception of the field with the creation of these two Tribunals. Core international crimes have since become established categories of crimes in international law, enabling the prosecution of alleged perpetrators at the international level.
At Nuremberg, the Military Tribunal observed that ‘the law of war is to be found not only in treaties, but in customs and practices of States which gradually obtained universal recognition’ and that ‘in many cases, treaties do no more than express and define for more accurate reference the principles of law already existing’.Footnote 4 Therefore, the Nuremberg IMT explicitly referred to customary international law in defining the law applicable to the crimes falling within its jurisdiction.Footnote 5 Likewise, the Tokyo Tribunal engaged in the practice of determining whether the crimes listed in the Far East Charter constituted customary international law.Footnote 6
It was said at the time that ‘the [Nuremberg] Charter is not an arbitrary exercise of power on the part of the victorious nations, but … it is the expression of international law existing at the time of its creation’.Footnote 7 Efforts were made to demonstrate respect for the principle of nullum crimen sine lege – that is, the principle of legality.Footnote 8 Nevertheless, the inclusion of certain crimes in the Nuremberg and Tokyo Charters raised concerns about retroactivity and compliance with the principle of legality.Footnote 9 Notably, it is questionable whether crimes against peace and crimes against humanity constituted crimes under international law at the time of their occurrence during the Second World War.Footnote 10 Therefore, the Nuremberg and Tokyo IMTs have received a great deal of criticism on account of the fact that individuals were prosecuted for crimes that had not existed at the time they were committed.Footnote 11 Confronted with such a challenge, the Nuremberg judgment developed a relatively weak conception of the principle of legality, which can operate as a ‘principle of justice’ rather than as a ‘limitation of sovereignty’ and can, therefore, be outweighed by considerations of substantive justice.Footnote 12
In response to the so-called victors’ justice criticism of the Nuremberg and Tokyo paradigm, and after a long period of inactivity owing to the Cold War,Footnote 13 at the time of the establishment of the ad hoc Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) in the 1990s, every effort had been made for core crimes definitions enshrined in their Statutes to reflect existing customary international law in the field.Footnote 14 The UN Secretary-General’s report that preceded the establishment of the ICTY expressly stated that the Tribunal’s material jurisdiction is limited to conducts that are, ‘beyond any doubt’,Footnote 15 recognised under customary international law, so that ‘the problem of adherence of some but not all States to specific conventions does not arise’.Footnote 16 However, in the case of the ICTR, the Security Council adopted a more expansive approach to the choice of the applicable law, including within its subject-matter jurisdiction ‘international instruments regardless of whether they were considered part of customary international law’.Footnote 17
The UN Secretary-General’s report on the ICTY reveals a presumption in favour of customary international law, according to which ‘provisions of the Statute defining the crimes within the jurisdiction of the Tribunal should always be interpreted as reflecting customary international law, unless an intention to depart from customary international law is expressed in the terms of the Statute, or from other authoritative sources’.Footnote 18 However, concerns were raised at the time on whether breaches of the Geneva Conventions in a non-international armed conflict constituted customary international law,Footnote 19 and whether customary international law for crimes against humanity required a nexus with an armed conflict.Footnote 20
In any case, the primary role played by customary international law in the ad hoc international criminal Tribunals’ experience has been deemed necessary to comply with the principle of nullum crimen sine lege and, specifically, with the prohibition against retroactive application of criminal law. By recognising that ‘the tribunal’s power to convict an accused of any crime listed in the Statute depends on its existence qua custom at the time this crime was allegedly committed’,Footnote 21 the drafters wanted to avoid risking a possible violation of the principle of legality in the event that a party to the conflict did not ratify a relevant treaty.Footnote 22 For the same reason, a few years later, the UN Secretary-General’s report on the establishment of a Special Court for Sierra Leone expressly recognised that the international crimes enumerated in the draft statute ‘are crimes considered to have had the character of customary international law at the time of the alleged commission of the crime’, linking the presumption of interpretation consistent with customary law with the principle of legality and the ban against the retroactive application of the law.Footnote 23
11.3 The Rome Statute Crimes: Codification of Custom or Progressive Development?
The adoption of the Rome Statute of the ICC in 1998 provided a further opportunity for crystallising the customary international law of the time. In developing the definitions of core international crimes,Footnote 24 the intention of the drafters at Rome was to limit the Court’s jurisdiction to crimes existing under customary international law.Footnote 25 To reach the widest possible consensus among States and promote its universal application, it was understood that the Rome Statute was not the ‘right place for progressive development of the law into uncertain areas, or for the elaboration of new and uncertain international criminal law’.Footnote 26 As stated by Philippe Kirsch, the Court’s first president, ‘the definitions of crimes in the ICC Statute were to reflect existing customary international law, and not create new law’.Footnote 27 Although the Rome Statute does not expressly specify whether the crimes listed in Articles 6–8bis are declaratory of custom,Footnote 28 these categories of crimes can be regarded as largely reflective of customary international law at the time.Footnote 29 This ensures consistency with the principle of legality, as formulated in Article 22 of the Rome Statute.
However, the drafting of an international treaty is always an arduous process. It is hard to hold the narrow line between a pure codification of existing customary law and progressive or retrogressive developments.Footnote 30 The Rome Statute was the product of intense multilateral negotiation,Footnote 31 which revealed the existence of profound and diverging national positions. The substantive provisions contained in Articles 6–8bis ‘represent a consensus reached by a large number of States following a lengthy and complex drafting process’.Footnote 32 Therefore, the numerous compromises that were made to build consensus among States led to divergence from the then existing content of customary international law.Footnote 33
While the provisions on genocide,Footnote 34 crimes against humanity,Footnote 35 war crimes,Footnote 36 and aggressionFootnote 37 are generally considered in line with customary law,Footnote 38 the Rome Statute shows, in places, both (limited) progressive development, as well as instances of regression – in particular when looking at the definitions of crimes under Articles 7 and 8 of the Rome Statute. Indeed, as it has been observed by the ICTY in the Furundžija case, ‘depending on the matter at issue, the Rome Statute may be taken to restate, reflect or clarify customary rules or crystallise them, whereas in some areas it creates new law or modifies existing law’.Footnote 39 Therefore, the Rome Statute can be regarded as largely, but not completely, reflective of customary law.Footnote 40
Provisions that have been considered by some authors as going beyond customary international law include, among war crimes, the conscription or enlistment of children under fifteen years of age into the national armed forcesFootnote 41 and the indirect transfer by an occupying power of its civilian population into the occupied territory.Footnote 42 Moreover, the customary law status of certain acts amounting to crimes against humanity has been called into question, such as forced pregnancy,Footnote 43 enforced disappearance and apartheid,Footnote 44 as well as the long list of grounds of persecution.Footnote 45 Lastly, the policy element required by Article 7(2)(a) of the Rome StatuteFootnote 46 has also been seen to narrow the customary definition of crimes against humanity.Footnote 47 Similar reasoning has been employed regarding the qualification of the concept of persecution as occurring ‘in connection with any act or any crime within the jurisdiction of the Court’.Footnote 48 However, such progressive definitions, which were not regarded as declaratory of customary international law at the time of the Statute’s adoption, are likely to have gradually evolved and crystallised into custom as a result of other international and domestic courts, or domestic implementing legislation, accepting them as ‘encapsulating the world community’s opinio juris on the matter’.Footnote 49
On the other hand, the lack of prohibition on conspiracy to commit genocide constitutes a retrograde deviation from custom.Footnote 50 Moreover, in the context of war crimes, the Statute has inadequately codified prohibited weapons and clearly excluded the legal prohibition on the use of weapons of mass destruction.Footnote 51 The Statute also retains some retrograde distinctions between international and non-international armed conflicts, with significantly fewer categories of war crimes included in this latter section. For instance, Article 8(2)(e) lacks a comparable provision to that of Article 8(2)(b)(xx) on the use of weapons that cause superfluous injury and unnecessary suffering, or weapons that are inherently indiscriminate. Other crimes that are not replicated in internal armed conflicts include compelling a prisoner of war or other protected persons to serve in the armed forces of a hostile power;Footnote 52 intentionally directing attacks against civilian objects;Footnote 53 intentionally launching indiscriminate attacks likely to cause incidental loss of life, injury to civilians or damage to civilian objects, or widespread, long-term, and severe damage to the natural environment;Footnote 54 attacking undefended places, which are not military objectives;Footnote 55 improper use of flags and markings;Footnote 56 use of human shields.Footnote 57
11.4 Temporality of International Criminal Law
Codifying customary international criminal law, as was largely the case with the adoption of the Rome Statute, ensures legal clarity, as well as better consistency and coherence of the law. However, it should be stressed that ‘customary law continues to exist and develop alongside treaty law.’Footnote 58 International criminal law is a dynamic system. It is not intended to be frozen in time but evolves and develops continuously. As it has been observed by the Nuremberg IMT, ‘the laws of the war are not static, but by continual adaptation follow the needs of a changing world’.Footnote 59 Concerns have therefore been expressed that the definitions of crimes adopted by the Rome Statute might have ‘frozen customary definitions in a process of rapid evolution’, thus leading to the ‘stagnation, if not decline’ of the field.Footnote 60
The Rome Statute itself recognises that the ICC does not operate in a vacuum. Indeed, Article 10 stipulates that: ‘Nothing in this part shall be interpreted as limiting or prejudicing in any way existing or developing rules for international law for purposes other than this Statute.’Footnote 61 This provision, which had been proposed by the late M. Cherif Bassiouni on behalf of the Egyptian delegation and with the strong support of the ICRC,Footnote 62 sought to mitigate concerns regarding the codification of some but not all customary international crimes contained in the Statute.Footnote 63 Likewise, Article 22(3) of the Statute confirms that the exclusion of criminal liability – in application to the principle of legality – for those conducts not criminalised under the Rome Statute ‘shall not affect the characterization of any conduct as criminal under international law independently of this Statute’. Therefore, the exclusion of certain crimes from the Rome Statute, or departure from customary law, is not intended to prejudice the existing customary international law framework or the progressive development of new customary law in the field.Footnote 64
While such provisions are intended to restrict the influence of the Statute on the development of customary law, they are not aimed at determining the role of custom for interpretation purposes. Such an approach is, however, of particular relevance, given that customary international criminal law has further developed alongside the Rome Statute, including through the adoption of national implementing legislation by States.
11.5 The Adoption of Divergent Domestic Implementing Legislation
With the principle of complementarity being the cornerstone of the Rome system of justice and the ICC operating as a court of last resort,Footnote 65 the primary responsibility to investigate and prosecute core international crimes rests with States.Footnote 66 The ICC can only intervene when States are ‘unwilling’ or ‘unable’ genuinely to do so.Footnote 67 To enable States to exercise primary jurisdiction over core international crimes, and investigate and prosecute these crimes domestically, enacting legislation implementing the provisions of the Rome Statute in their respective national legal systems is key. National implementation is indispensable for meeting the ‘duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’ – as stated in the Preamble of the Rome Statute.Footnote 68 Whilst the Rome Statute does not expressly mandate the enactment of national implementing legislation with regard to the Statute crimes, and the decision to implement is left at the discretion of States, over half of the State Parties have so far at least partially adopted domestic implementing legislation with respect to the four core crimes listed under Article 5 of the Statute.Footnote 69
Importantly, the Rome Statute also does not expressly require States to enact domestic implementing legislation incorporating the core crimes in a uniform manner. As such, States are afforded wide discretion when carrying out the implementation task. Substantive differences, therefore, exist in how core international crimes have been interpreted when transposed into national systems. A number of States have replicated the exact wording of the Rome Statute or made explicit reference to its relevant provisions.Footnote 70 Other States have instead reformulated, rephrased, and redrafted the conducts criminalised in the Rome Statute, using different terms from those employed by Articles 6–8bis of the Rome Statute in both retrograde or progressive ways.Footnote 71
Some States have adopted narrower definitions of core international crimes – for instance, omitting racial groups or ethnic groups in the domestic definition of genocide,Footnote 72 or adopting restrictive definitions of torture or enforced disappearance of persons.Footnote 73 Conversely, other States have employed broader definitions based on general international law, other applicable treaties, or new developments in customary international law. Indeed, the implementation task carried out by States is ‘not performed in a vacuum’ but is necessarily influenced by developments in the field of international criminal law.Footnote 74 For instance, several State Parties – such as some Latin American and ex-Soviet countries – have expanded the scope of application of genocide by increasing the number of protected groupsFootnote 75 or broadening the list of punishable acts to include displacement or deportation.Footnote 76 Other States, like Germany, have also included conducts that have been omitted during the negotiations of the Rome Statute – for example, the prohibition on the use of chemical and biological weapons among their war crimes provision.Footnote 77 Moreover, while some States have maintained in their legislation the distinction between international and non-international armed conflicts,Footnote 78 this has been blurred by others.Footnote 79 A number of States consider direct attacks against civilian objects, disproportionate attacks, and human shields to be war crimes also in non-international armed conflicts, even though the Statute only recognises these as war crimes solely when committed in the course of an international armed conflict.Footnote 80
Whilst provisions of national legislation do not always correspond to the definitions enshrined in the Rome Statute, they purport to criminalise the same conduct. It is, therefore, crucial to consider what happens if national core crimes provisions differ from those found in the Statute – for instance, in a situation case where a State Party conflates international and non-international armed conflicts. Where the ICC is required to step in owing to the national legal system being unwilling or unable genuinely to investigate or prosecute in line with the principle of complementarity, it is at that interface that the interpretation of the national core crime provision in relation to the provision found in the Rome Statute becomes relevant.
11.6 Rules of Interpretation at the ICC
Since its coming into force, ICC judges have been repeatedly tasked with interpreting and applying the Rome Statute.Footnote 81 The applicable sources of law to be employed by the ICC are clearly laid down in Article 21 of the Rome Statute, which places primary importance on the text of the Statute, its Elements of Crimes, and the Rules of Procedure and Evidence.Footnote 82 Only residually, and ‘where appropriate’, judges should apply applicable treaties and principles and rules of international law,Footnote 83 as well as general principles of law derived by the Court from national laws, including the national laws of States that would normally exercise jurisdiction over the crime.Footnote 84
While Article 21 of the Rome Statute does not explicitly address the issue of interpretation, the inclusion of a list of applicable sources therein creates a de facto framework that guides ICC judges in their interpretative process. In this regard, paragraph 3 of Article 21 explicitly refers to both ‘application’ and ‘interpretation’ of the law, acknowledging the intertwined nature of the two processes. Although a distinction exists between application and interpretation,Footnote 85 interpretation is the first step in the process of applying the law. Therefore, Article 21 sets out a hierarchy between sources that ICC judges are to apply when interpreting core international crimesFootnote 86 and places the definitions contained in the Statute at the top to increase legal certainty and ensure better respect for the principle of legality.Footnote 87 Whilst the other sources of law, including custom,Footnote 88 occupy a subsidiary position,Footnote 89 they still have an acknowledged role to filling gaps in the text of the Statute or as an aid for the purposes of interpretation.Footnote 90 In any case, these rules of interpretation seem to provide an imperfect solution. They only apply to the Court itself and fail to take into account how States behave within the Rome system of justice created by the Statute, outside it but, in any case, not before the Court.
However, as an international treaty, the Rome Statute is also subject to rules and principles of interpretation codified by the 1969 Vienna Convention on the Law of Treaties (VCLT) – in particular, Articles 31 and 32.Footnote 91 As a general principle of interpretation, a treaty shall be interpreted ‘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’.Footnote 92 Moreover, according to Article 31(3) of the Convention, judges are required to take into account subsequent agreements, practice, and law when interpreting a treaty.Footnote 93
The provisions of the ICC Statute on applicable law and the rules set forth by the 1969 VCLT share common ground, yet they are also distinguishable. Both the ICC Statute and the VCLT emphasise the importance of interpreting treaties in accordance with the ordinary meaning of terms, the context, and in light of their object and purpose. Furthermore, Article 31(3) of the VCLT, on the consideration of subsequent agreements, practice, and relevant rules of international law, aligns with the ICC’s approach outlined in Article 21. By virtue of this provision, judges are expected to take into account applicable treaties and principles and rules of international law. It could therefore be argued that the ICC Statute is a specialised regime of the VCLT’s general principles for treaty interpretation able to meet the specific needs, complexities, and criminal nature of the ICC.
In any case, the interplay between Article 21 ICC Statute and Article 31(3) of the 1969 VCLT, puts ICC judges at the interface: taking into account subsequent agreements, practice and other sources of international law, including custom, when interpreting the Rome Statute. As customary law and general principles of law will continue to evolve beyond the Statute, and new relevant treaties between States will continue to be concluded, the definitions of crimes cannot be considered frozen in time but need to be interpreted in the light of the law existing when the crime is alleged to have been committed.Footnote 94
11.7 The Role of Domestic Implementing Legislation in Interpreting the Rome Statute Crimes
The idea of international criminal law not being static raises questions of how domestic implementing legislation can influence the interpretation of the definitions of core international crimes crystallised in the Rome Statute. This is particularly the case when the Court steps in in light of the principle of complementarity, that is, when national authorities are unwilling or unable to genuinely investigate or prosecute the case. It is, therefore, crucial to understand how potential new State practice and emerging customary international law would interact with the treaty provisions and what this means for their interpretation. The adoption of divergent national legislation on core international crimes does not necessarily have an impact on the interpretation of such crimes.Footnote 95 However, a ‘systematic, repetitive and concordant’ practice of StatesFootnote 96 interpreting and applying the definitions of core international crimes at the domestic level might contribute to the evolution of international customary law alongside the definitions of crimes contained in the Rome Statute.Footnote 97 If a considerable number of States, both parties and non-parties to the Rome Statute, enacted a particular definition for a crime that departs in some way from Articles 6–8bis of the Statute, it might be argued that a new State practice and possibly opinio juris emerges on the content of the elements of that crime under customary international law. If several States consistently interpret and apply definitions of core international crimes at the domestic level, in a way that departs from the Rome Statute but aligns with one another, this can be perceived as subsequent practice that reflects a common understanding among those States. In this context, the consistent domestic practices might qualify as evidence of the parties’ agreement regarding the interpretation of the relevant treaty provisions, falling under Article 31(3)(b) of the 1969 VCLT.Footnote 98 Furthermore, even when such consistent State practice does not fully align with the common intention of the parties but reflects general practice among a significant number of States, it could still fall under Article 32 of VCLT, as a supplementary means of interpretation. It could help clarify the treaty provisions in question and confirm the meaning resulting from the application of Article 31.Footnote 99
For instance, with regard to the definition of genocide, a clear trend in State practice towards expanding the list of protected groups to include political and social groups can be identified. To the extent that this evidence of State practice is supported by opinio juris, it could be argued that a larger number of protected groups has crystallised into customary law.Footnote 100 Moreover, there is also a growing trend to abandon the distinction between international and non-international armed conflicts among war crimes, which appears in line with customary international law.Footnote 101 But does this mean that where a State Party has blurred the distinction between international and non-international armed conflicts – and the ICC steps in owing to complementarity – ICC judges could extend their subject matter jurisdiction to war crimes that constitute customary international law but have been excluded from the list of Articles 8(2)(e) of the Rome Statute?
In this regard, it is key to emphasise that the International Criminal Court is bound by the principle of legality. Article 22 provides that no one can be held responsible under the Rome Statute ‘unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court’.Footnote 102 Moreover, the definition of a crime shall be ‘strictly construed’.Footnote 103 The goal of the drafters in Rome was to set out all crimes falling under the jurisdiction of the ICC, in as specific and detailed a manner as possible.Footnote 104 Therefore, ICC judges are strictly bound by the limits of the Statute’s wording when undertaking their interpretative task.Footnote 105
A certain level of flexibility within the Statute’s framework is still acceptable ‘to avoid excessive rigidity and to keep pace with changing circumstances’.Footnote 106 However, whilst the rule of strict construction shall not be intended as curbing the progressive juridical clarification or specification of the content of an offence,Footnote 107 the Rome Statute cannot be stretched to create new criminal prohibitions that would then be applied retrospectively. An interpretation based on the object and purpose of the Statute could not be used to create a body of law extraneous to the terms of the treaty or incompatible with the literal reading of the text.Footnote 108 It is therefore necessary to distinguish between the creation of new substantive law and an interpretation within the scope of existing law. Whilst a reinterpretation based on subsequent practice or customary international law can be considered acceptable, if it can be reasonably accommodated by the actual text of the Statute, modification of the text under the guise of interpretation is not permissible. A significant departure from the intention of the drafters in order to give effect to a creative interpretation of the Statute would appear to be ‘an inappropriate arrogation of the legislative function by the judiciary’.Footnote 109
The principle of legality, and the primacy of the Statute’s text, therefore, prevents judges from expanding the Court’s jurisdiction to prosecute crimes that are merely based on subsequent practice or custom but are not clearly defined in the Statute.Footnote 110 For instance, ICC judges could not extend their subject matter jurisdiction to the war crime of intentionally directing attacks against civilian objects, as this would broaden the punishable acts beyond Article 8(2)(e) of the Rome Statute. However desirable this may be, and even though a trend is beginning to develop in national legislation to conflate the two, the Statute provision remains abundantly clear. Similarly, finding an accused guilty of political or social genocide before the ICC would clearly constitute a violation of the principle of legality.Footnote 111
Such an approach may seem unduly restrictive, if not conservative. A rigid textual interpretation of the Rome Statute promotes a narrower scope for the definitions of core international crimes.Footnote 112 Brave acts of judicial activism have also occurred in a number of instances in the past, including before international tribunals. For instance, in Tadić, the ICTY Appeals Chamber held that the nexus with an armed conflict in crimes against humanity was no longer required under customary law.Footnote 113 In the Akayesu judgment, the ICTR Tribunal expanded the traditionally protected groups under the definition of genocide to include ‘any stable and permanent group’.Footnote 114 However, although the Rome Statute’s provisions offer some flexibility, they are not fully flexible. It is important not to try and stretch them beyond their limits and intended scope.
ICC judges need to be cautious when taking into account subsequent practice and customary international law that significantly narrow or broaden the scope of a crime. Whilst they should be mindful of developments both in State practice and customary law, they must also recognise that the Statute is a treaty and that the interpretation and application role of the judiciary must be kept distinct from the law-making role.Footnote 115 It is the Assembly of States Parties, as the ‘management oversight and legislative body’ of the ICC,Footnote 116 that can initiate amendments to the Statute following the Article 121 Rome Statute process. For example, a unified approach to war crimes committed in non-international and international armed conflicts could only be taken at the ICC if an amendment were to be made to Article 8(2)(e) of the Rome Statute to incorporate analogous provisions to those found in Article 8(2)(b).Footnote 117
11.8 Concluding Remarks
The chapter has explored what happens at the interface of domestic legal systems having interpreted core international crimes differently from the Rome Statute and the International Criminal Court. Addressing the question of how national implementing legislation can influence the interpretation of the definitions of core crimes crystallised in Articles 6–8bis of the Rome Statute provides useful insights into the progressive evolution of international criminal law and sheds some light on the under-explored interaction between implementation and interpretation of the Statute. However, the rules of interpretation laid down in Article 21 of the Rome Statute do not represent an adequate framework to fully unpick this interaction. They only apply to the Court itself and fail to take into account the interpretation of core international crimes provided at the domestic level.
ICC judges ought to be cognisant of how State Parties have implemented core international crimes in their domestic law when engaging in the interpretation of the Rome Statute. Under the 1969 VCLT, judges are required to take into account subsequent agreements, practice, and other sources of international law when interpreting a treaty. It may be that some flexibility within the Statute exists, and judicial activism and creativity may be inevitable or even desirable to keep pace with progressive developments in the field. However, it remains necessary to distinguish between an interpretation within the scope of the existing law and modification of the text of a treaty. ICC judges cannot expand the scope of core international crimes’ definitions to include new types of conduct or contextual circumstances that are not clearly supported by the text of the Statute. Therefore, where (re)-interpretation based on subsequent State practice cannot be reconciled with the text of a specific provision, formally amending the Statute – following the procedure set forth in Article 121 of the Rome Statute – remains the only available route. Keeping the Rome Statute under review and ensuring its continued evolution in accordance with customary international law would maintain the unity of the international criminal law system and avoid (further) fragmentation.
12.1 Introduction
Crimes against humanity’s complicated origin story has generated confusion regarding its modern content and legal foundations. It has nonetheless become a critical component of modern international justice. This chapter explores the development of the crime in the twentieth century, including its evolution in customary international law and its codification in the Rome Statute of the International Criminal Court (‘Rome’ or ‘ICC Statute’). It also takes up the current proposal to re-codify it in a new, specialized, multilateral convention based upon the International Law Commission’s (ILC) 2019 Draft Articles on Crimes Against Humanity(‘Draft Articles’),Footnote 1 a project that 124 States have, thus far, explicitly committed to.Footnote 2 It identifies five phases in the crime’s development, from its nineteenth-century natural law origins through its codification in the ICC Statute, and finally its possible recodification in a new treaty.
Consistent with the theme of this volume, after exploring the historical genesis and current status of crimes against humanity in customary international law, this chapter evaluates the position of States as regards the unity, evolution, and diversity of their interpretative approach to the ILC Draft Articles and particularly the definition of crimes against humanity in Draft Article 2. Among State supporters of this new treaty, most have embraced the idea of unity in approaching the definition of crimes against humanity in the new treaty.Footnote 3 By unity, they seem to mean that the new treaty should essentially serve as a horizontal ‘add-on’ to the Rome Statute of the International Criminal Court (ICC), making the two instruments seamlessly consistent as a matter of text and application.
Other States, however, are tempted by the idea of evolution, which could adjust the definition to consider developments found in customary international law,Footnote 4 such as the prohibition on the slave trade or the emergence of new crimes.Footnote 5 Indeed, some States have suggested that the new treaty offers the possibility, consistent with Article 13 of the UN Charter, for progressive development and have proposed the addition of new crimes, including economic crimes,Footnote 6 environmental crimes,Footnote 7 and the crime of gender apartheid.Footnote 8 They agree with taking the Rome Statute definition as the centerpiece of the new treaty but have proposed or accepted modifications they believe will make it a treaty responding to the modern needs of the international community.
Finally, the Draft Articles themselves, like the ICC Statute, have also recognized that there may be a diversity of codifications in national legislation, and that customary international law may continue to evolve outside treaty codifications of crimes against humanity. This was the position of the ILC itself, which thus included a ‘without prejudice’ clause in Draft Article 2(3) to provide States with flexibility in adapting a new treaty to municipal law, so long as the definition they adopt is ‘broader’.Footnote 9
The consequences that might flow from national – or international – variations of the crimes are not spelled out by the Draft Articles, or by the Rome Statute, a point returned to periodically in Sections 12.2, 12.3, and 12.4. Yet, as evidenced by the 2021 judgment of the ICC Appeals Chamber in Abd-Al-Rahman, the relationship between treaty codifications of crimes against humanity, including the Rome Statute and customary international law, is important in considering the legality principle with respect to the prosecution of non-Rome Statute State Party nationals for ICC crimes or eventually in universal jurisdiction cases heard by national courts. The purpose of this contribution is not to evaluate these three approaches but to offer some reflections that may be useful to their consideration. This analysis is particularly important given the ongoing negotiations of a new treaty on crimes against humanity.
12.2 Historical Development of Crimes Against Humanity
In the mid-1990s, when the Rome Statute was being negotiated, the international community was experiencing a renaissance in the domain of international law and international lawmaking. Thus, when crises arose, including the collapse of the former Yugoslavia and its descent into war, and the 1994 Rwandan genocide, the response was, in part, to resurrect the project of creating international criminal tribunals and courts to address the commission of atrocities, which had lain fallow since 1945.
But it was not clear what law these new courts and tribunals apply, as the gap between the modern origins of international criminal law at Nürnberg and Tokyo and the efforts, some fifty years later, to enshrine these precedents in modern institutions was considerable. This was particularly true for crimes against humanity, which had no treaty basis prior to its inclusion as Article 6(c) of the Charter of the International Military Tribunal at Nürnberg (IMT Charter)Footnote 10 and Article 5(c) of the Charter of the International Military Tribunal for the Far East (IMFTE Charter).Footnote 11 Indeed, it was unclear whether the legal basis for crimes against humanity was a treaty, based on the status of the IMT Charter as a treaty signed by twenty-three States,Footnote 12 or a matter of customary international law, as later evidenced by its subsequent adoption by the General Assembly as the Nürnberg Principles of 1950.Footnote 13 It was unclear during the period of the crime’s emergence, and experts have debated this question for more than seventy years.Footnote 14
The IMT based its interpretation on the Charter it was given, famously noting that, in its view: ‘The Charter is not an arbitrary exercise of power on the part of the victorious nations, but […] the expression of international Law existing at the time of its creation; and to that extent is itself a contribution to International Law.’Footnote 15 Presumably, the IMT was referencing customary international law. That said, given a dearth of State practice or case law on crimes against humanity, the IMT construed Article 6(c) of its Charter (on crimes against humanity) relatively narrowly. For example, the tribunal required that crimes against humanity have a connection to the other crimes in the Charter (war crimes and/or crimes against peace) to be indictable, which eliminated persecutions committed by the Nazis in the 1930s, prior to the invasion of Poland, from the charges faced by the accused. It also found that the crime of persecution in Article 6(c) was not independent from the other crimes listed in the Charter (murder, extermination, etc.), a limitation later critiqued by scholars.Footnote 16
Nonetheless, three key ideas emerged from the text of the Charter and the Judgment of the Tribunal: (1) crimes against humanity, unlike war crimes, protect all civilians – including a State’s own nationals – from widespread or systematic attacks on certain human rights and persecutory campaigns; and (2) neither the accused’s official position nor national law is a defence. Finally, (3) the crimes themselves are particularly egregious, ‘characterized either by their seriousness and their savagery […] or by their magnitude, or by the fact that they were part of a system designed to spread terror, or that they were a link in a deliberately-pursued policy against certain groups’.Footnote 17
Because no treaty was ever adopted for crimes against humanity after the war,Footnote 18 other than its partial codification in the form of treaties on the crime of genocide (1948), and later apartheid (1974), torture (1984), and enforced disappearance (2006), crimes against humanity persisted in customary international law but without a firm treaty foundation. The ILC had undertaken but not finalized the task of codifying it along with other international crimes. The ILC had also drafted articles to be used in establishing an international criminal court, producing two separate documents in the 1990s, one for a Court in 1994Footnote 19 and one for a draft code of crimes in 1996.Footnote 20 Both texts referenced crimes against humanity, but neither was ready to serve as the basis of an international criminal court. Instead, when the Security Council established the ad hoc international criminal tribunals for the former Yugoslavia (ICTY)Footnote 21 and Rwanda (ICTR),Footnote 22 it did not rely on the Commission’s work but adopted Statutes annexed to Security Council Resolutions adopted under Chapter VII of the United Nations Charter for each of the two entities.
The Secretary-General’s Report supporting the establishment of the ICTYFootnote 23 stated that the Security Council would not be ‘creating or purporting to legislate’ but that the ICTY would have the ‘task of applying existing international law’.Footnote 24 The Report added:
In the view of the Secretary-General, the application of the principle nullum crimen sine lege requires that the international tribunal should apply rule of international humanitarian law which are beyond any doubt part of customary law so that the problem of adherence of some but not all States to specific conventions does not arise.Footnote 25
The Report suggested that the relevant treaties to be applied were the four Geneva Conventions of 12 August 1949, the Hague Convention (IV) Respecting the Laws and Customs of War on Land and the Regulations annexed thereto of 18 October 1907, and the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, in addition to the Nürnberg Charter.Footnote 26
As for crimes against humanity, the Report noted the absence of a treaty thereon, a lacuna that the international community is endeavouring to fill at the present moment,Footnote 27 and to which this chapter returns in Section 12.3. Thus, the Report suggested, the Charter and Judgment of the Nürnberg Tribunal and Control Council Law No. 10Footnote 28 would be the relevant referents. In addition, the Report observed that ‘[c]rimes against humanity are aimed at any civilian population and are prohibited regardless of whether they are committed in an armed conflict, international or internal in character’.Footnote 29 Despite this, the armed conflict nexus was retained in the chapeau of Article 5 when the Statute was finally adopted.Footnote 30 Conversely, Article 3 of the ICTY’s sister tribunal, the IICTR excluded the ‘armed conflict’ element, but included a requirement that the crime be committed ‘on national, political, ethnic, racial or religious grounds’.Footnote 31 This tendency to codify the crime by adding new material elements depending on the facts of specific conflicts is a problem that persists today. I return to this point in Section 12.2.
Thus instructed, the two ad hoc tribunals began adjudicating cases and developing a modern jurisprudence of crimes against humanity as customary international law. Between them, 161 individuals were indicted at the ICTY,Footnote 32 and 93 at the ICTR.Footnote 33 In a 2013 study, I found that at the ICTY, crimes against humanity represented 40.6 per cent of all indicted offences, and war crimes charges approximately 56.9 per cent. Conviction rates were approximately the same for both the crimes against humanity charges and the war crimes charges (39.3 per cent and 37.5 per cent, respectively). Genocide charges were few, and convictions rare.Footnote 34
In 1999, the ICTY found that under customary international law, crimes against humanity could occur in peace time as well as during armed conflictFootnote 35 and rejected the idea that they must be accompanied by discriminatory intent.Footnote 36 The Kunarac decision also rejected the requirement that crimes against humanity could only be committed pursuant to a State or organizational policy.Footnote 37 Some of these important holdings, which, as noted above, were articulated as norms of customary international law, followed and therefore contradicted the earlier codification of crimes against humanity in Article 7 of the ICC Statute, which was adopted on July 17, 1998.
Subsequent decisions of both the ICTY and the ICTR also contributed extensively to an understanding of the murder-type crimes and the crime of persecution and elaborated a comprehensive jurisprudence on sexual and gender based violence as well.Footnote 38 As former ICTY Judge Patricia Wald has noted, ‘crimes against humanity [became] the growth stock of Tribunal jurisprudence’.Footnote 39 Meanwhile, as the ad hoc tribunals began their work, the ICC Statute was being negotiated, first in New York during the Preparatory Committee meetings held at the Headquarters of the United Nations and then in Rome during the summer of 1998.
12.3 The Codification and Development of Crimes Against Humanity at the ICC
12.3.1 The Negotiations at Rome
There was little doubt that crimes against humanity would be included in the Rome Statute, given its origins in the Charters of the Nürnberg and Tokyo Tribunals. That said, it had not been included as such in the 1991 Draft Code of Crimes against the Peace and Security of Mankind produced by the ILCFootnote 40 although it was reinserted in the 1996 text and was not within the automatic jurisdiction of the proposed court envisaged by the ILC in 1994.Footnote 41 During the Preparatory Committee meetings held prior to the Court’s Statute, it was agreed that the definition should reflect the elements of the crime under customary international law.Footnote 42
Yet ascertaining the content of that custom was challenging. Crimes against humanity had originated as natural law in the nineteenth century to condemn slavery and the slave tradeFootnote 43 and King Leopold’s atrocities in the Congo.Footnote 44 In the twentieth century, it began to take shape as customary international law, with the judgments of the Nürnberg and Tokyo Tribunals. The texts of the ICTY and the ICTR Statutes were another important source of customary international law, as were judgments from national courts, including the BarbieFootnote 45 and Eichmann cases, from the Supreme Courts of France and Israel, respectively. In Eichmann, in particular, the Israeli courts were exercising universal jurisdiction over the accused, as Israel was neither the State or the territory of which the crimes were committed, nor the State of the accused (or the victims) nationality. As the Supreme Court of Israel noted:
The abhorrent crimes … [are] crimes which offended the whole of mankind and shocked the conscience of nations are grave offences against the law of nations itself … in the absence of an International Court, the international law is in need of the judicial and legislative authorities of every country, to give effect to its penal injunctions and to bring criminals to trial. The jurisdiction to try crimes under international law is universal.Footnote 46
Thus, unlike war crimes and genocide, for which treaty texts were available, defining crimes against humanity during the Rome Statute’s negotiation required achieving a consensus as to which elements of the crime represented customary international law.Footnote 47 This was a considerable challenge in part because unlike the ad hoc tribunal statutes, which were drafted after the crimes had already been committed or as they were ongoing, and with a specific crime base in mind, the ICC was drafted for future cases.
The link to customary international law was also important because of the potential for worldwide application of the Rome Statute through the vehicle of a Security Council referral of a situation involving the nationals of non-State Parties. For this reason, as several contemporaneous accounts suggest,Footnote 48 the negotiators intended the Rome Statute to represent, like the ICTY and ICTR Statutes, customary international law and were not intending to create new law.Footnote 49 That said, they included some adaptations that would take into account the fact that a new court was being established to prosecute the crimes therein, which would have its own set of jurisdictional limitations and prosecutorial priorities. In the sense of the North Continental Sea judgment of the International Court of Justice,Footnote 50 there were elements of codification, crystallization, and customary international law creation at Rome as to crimes against humanity.Footnote 51 Much of the Statute tracked the Nürnberg definition (codification), some elements that had been debated in prior case law and by scholars were clarified, such as the severing of the link to armed conflict (crystallization), and others, such as the new provisions on sexual and gender-based violence, emerged as new crimes at Rome (creation).
Like other core international crimes, crimes against humanity are composite offences, comprising a material element (an actus reus), a mental element (mens rea), and a chapeau containing context elements that internationalize the crime and distinguish it from ordinary crimes like murder, torture, and crimes of sexual violence, for example. In crafting the chapeau containing the context elements of crimes against humanity, the drafters eliminated the element requiring a connection to armed conflict but retained in Article 7(1) the requirement of an ‘attack’ directed against a civilian population and that the attack on the civilian population be either widespread or systematic, rejecting the view that the attack must fulfill both requirements under customary international law. They also eliminated the requirement of discriminatory intent found in the ICTR Statute. However, they added, in Article 7(2)(a), a requirement that the crime be committed ‘pursuant to or in furtherance of a state or organizational policy’, an element that the ICTY and ICTR had rejected, and which many scholars believe is not required by customary international law.Footnote 52
The eleven offences in Article 7(1)(a) through (k) requires the actus reus of the offence be limited to violent attacks upon corporal integrity (and similar offences), tracking the Statutes of the ad hoc tribunals, but with important additions. The list of prohibited acts includes murder, extermination, deportation and forcible transfer, imprisonment, torture, rape, and other forms of sexual, gender-based, and reproductive violence, persecution, and a catch-all provision: other inhumane acts. The inclusion of ‘other inhumane acts’Footnote 53 raises the possibility of new atrocities emerging as crimes against humanity in the future. It has already been used to capture the crime of forced marriageFootnote 54 and has been charged in other ICC cases, including the Abd-Al-Rahman case, discussed further below. The drafters declined to add environmental and/or economic crimes as certain States had urged during the negotiations of the Rome StatuteFootnote 55 and as the ILC had discussed during its work on the Draft Code of Crimes. This possibility has reappeared in discussions pertaining to the new treaty discussed Section 12.4.
Unlike predecessor tribunals, the ICC operates in real time and with the link to armed conflict explicitly severed in the text of Article 7, it is now understood that crimes against humanity may occur in times of relative peace. Thus, crimes against humanity have emerged as a pivotal offence at the ICC and have been charged or alleged in virtually all the situations referred to the Court to date. In situations involving armed conflict, crimes against humanity charges often track war crimes charges or target persecution or sexual violence. In other situations, crimes against humanity are the only charges that can be brought in the absence of armed conflict (at least at the outset of the referral) and the implausibility of alleging genocide. Given the ubiquity of the crimes against humanity charges at the ICC, we see that the ICC has become, in many ways, a crimes against humanity court.Footnote 56
The early case law of the ICC defined the terms ‘widespread’ and ‘systematic’ with relative ease, relying upon jurisprudence from the ad hoc international criminal tribunals to do so. It also concluded that the ‘attack’ against the civilian population need not be a military operation. Prosecutor v Dominic Ongwen held that an attack under Article 7 must be ‘a course of conduct’, by which is meant a ‘series or overall flow of events, as opposed to a mere aggregate of random or isolated acts’ committed by a State or ‘organization’; the latter requiring only that ‘the organization has a set of structures or mechanisms, whatever those may be, that are sufficiently efficient to ensure the coordination necessary to carry out an attack directed against a civilian population’.Footnote 57
The meaning of ‘State or organizational policy’ has presented more difficulties of interpretation as it was not included as a context element at the ICTY or the ICTR. The Court addressed it first in connection with a request to open an investigation into the 2007 post-election violence that took place in Kenya, which the Prosecutor argued constituted a crime against humanity. In considering the Prosecutor’s request, a Majority of Pre-Trial Chamber II noted that the policy element was eventually abandoned by the ad hoc tribunals but drew upon earlier cases in examining the Rome Statute.Footnote 58 Finding that the plan to commit the attack may be inferred from the commission of ‘a series of events’, including a variety of factors,Footnote 59 using classic methods of treaty interpretation, the Majority read ‘state or organizational’ in Article 7(2)(a) disjunctively, rejecting the notion that only ‘State-like organizations may qualify’. Rather, examining its prior decisions, as well as the text of the Statute itself, the jurisprudence of the ad hoc Tribunals, and the travaux préparatoires including the work of the International Law Commission in elaborating the 1996 Draft Code of Crimes, it focused upon ‘whether a group has the capability to perform acts which infringe on basic human values’. The Chamber added that the organization need not be ‘State-like’, and that the policy need not have been conceived at the highest level of the State, for ‘regional or even local organs of the State could satisfy the requirement of a State policy’.Footnote 60 Although Judge Hans-Peter Kaul penned an influential dissent, contending that the organization must be ‘State-like’ for its policies to fall within the ambit of Article 7, the Majority view has prevailed at the Court.
At the Rome Conference, some delegations wanted to delete the words ‘civilian population’, arguing that they were imprecise and unnecessary, but this traditional limit on the ambit of crimes against humanity has remained. Thus far, the ICC has followed the ICTY, holding that the definition of ‘civilian’ in Article 50 of Additional Protocol I to the Geneva Conventions on the laws of war sets forth the relevant standard.Footnote 61 That said, as the ICTY has also held, the ICC has found that ‘despite the requirement that the attack be directed against a civilian population, there is no requirement that the individual victims of crimes against humanity be civilians for the purpose of international humanitarian law (IHL), but may include persons otherwise protected under this body of law’.Footnote 62 The Extraordinary Chambers in the Courts of Cambodia (ECCC) has recognized this in its judgments, as well.Footnote 63 This is logical: because crimes against humanity, unlike war crimes, can be committed in peacetime, the civilian/combatant distinction may not apply.
The crimes against humanity charged to date have included murder, extermination, torture, deportation or forcible transfer, rape, forced marriage, forced pregnancy, persecution, sexual slavery, and other inhumane acts, among others. The ICC, even with the small number of final judgments achieved to date, is thus generating significant and important jurisprudence setting out the elements for each of these crimes. Of particular significance, the Ntaganda and Ongwen decisions recognized sexual violence during wartime as a crime against humanity.Footnote 64 Ongwen added convictions for forced marriage as other inhumane acts under Article 7(1)(k) and forced pregnancy under Article 7(1)(g).Footnote 65
12.3.2 The Status of the ICC’s Definition as Customary International Law: The Abd-Al-Rahman Case
The Rome Statute exists in a complex international ecosystem. The drafters clearly intended to track customary international law because they intended the Statute to have universal application. While cognizant of the fact that at least in its early years, not all States would become party to the Statute, they nonetheless made ICC law (Rome law) potentially applicable to all persons worldwide through the Security Council referral triggering mechanism for the Court. In addition, under the doctrine of complementarity, the idea is that States would adopt national legislation allowing them to prosecute ICC crimes in order to assume their roles as the primary enforcers of international law. While the assumption may have been that States would ‘copy-paste’ the text of the Rome Statute into their national legislation, in fact many States have departed from the text of the Rome Statute considerably.Footnote 66 Even within the text of the Rome Statute itself, the drafters changed the elements of the crimes slightly and added new crimes, suggesting a certain evolution of international criminal law and creating diversity in the field by departing from the statutes of the ad hoc international criminal tribunals. Thus, the unity of international criminal law, its evolution, and its diversity were all present at the founding.
Given this evolution and diversity, the question remains whether it is fair and legal to apply Rome law to non-State Party nationals. This question arose and was less than satisfactorily addressed by the ICC Appeals Chamber in the Abd-Al-Rahman case. The defendant, Abd-Al-Rahman, was a Sudanese national accused of crimes against humanity and war crimes who had surrendered himself to the Court. He challenged the ICC’s jurisdiction, inter alia, on the basis that since Sudan was not a State Party to the Rome Statute at the time of the Security Council’s referral and the events underlying the charges against him, his prosecution violated the principles of nullum crimen sine lege and non-retroactivity ratione personae in Articles 22(1) and 24(1) of the Statute, unless those crimes were defined either in Sudan’s national law or in international treaties and customary international law applicable to Sudan.Footnote 67
The Pre-Trial Chamber made short work of the Defendant’s arguments, noting that the purpose of Articles 22 and 24 was to ensure that the Court ‘does not deviate from the intention of the drafters that it should apply the statutorily defined crimes, and no others’.Footnote 68 Looking to the importance of the Article 13(b) triggering mechanism included in the Statute permitting Security Council referrals, the Chamber reasoned that it would ‘call into question the very raison d’être of that particular triggering mechanism’ to suggest it could only be applied after a searching analysis of the legal obligations expressly accepted or included by the relevant StateFootnote 69 and declined to examine whether the crimes were prohibited under customary international law.Footnote 70
On appeal, the defence continued to challenge the legality of Mr Abd-Al-Rahman’s prosecution. The Prosecutor’s appeal brief noted that the ‘crimes set out in articles 6, 7, and 8 of the Statute are substantially similar to those in customary international law’,Footnote 71 and the Appeals Chamber concluded that the charges ‘draw upon norms that were recognized globally, including in Sudan, and were fully ascertainable at the time of the conflict in Darfur’.Footnote 72 Unlike the Pre-Trial Chamber, however, the Appeals Chamber examined the history of the referral under Security Council Resolution 1593 and noted that the Commission of Inquiry on violations of international humanitarian law and human rights law in Darfur had already reported on the conflict and included, in its reports, an analysis of the ‘framework of international human rights and humanitarian laws applicable in Sudan at the time; and found criminal violations thereof’.Footnote 73 Therefore, the Security Council’s referral ‘encompassed violations of binding international obligations carrying a risk of individual criminal liability’.Footnote 74
Unlike the ICTY and the ICTR, the ICC Appeals Chamber did not seem to agree that the Security Council referral alone solved the nullum crimen problem. Instead, it asserted that under the Rome Statute, it must be foreseeable that an accused could have reasonably expect to face prosecution, and the relevant laws must have been ascertainable, in the sense they were sufficiently clear and accessible to the accused.Footnote 75 The Appeals Chamber then added that the foreseeability test is not met simply because the ‘crimes charged can be found in the text of the Statute’. Rather, the Court based the legality of Mr Abd-Al-Rahman’s prosecution on the fact that the accused had spent a considerable part of his career as a non-commissioned officer in the military who had actual experience with the application of common Article 3 of the 1949 Geneva Conventions and was personally ‘in a position to understand and comply with his obligations in armed conflict under international law’.Footnote 76 Only after examining the personal familiarity of Mr Abd-Al-Rahman with the laws of war did the Appeals Chamber conclude:
[T]he Appeals Chamber notes, generally, that the statutory crimes [of the ICC] are a product of a concerted effort to codify the developing state of international law so as to provide the clarity that was lacking in the preceding international tribunals. In principle, the Appeals Chamber considers that the crimes under the Statute were intended to be generally representative of the state of customary international law when the Statute was drafted. This weighs heavily in favour of the foreseeability of facing prosecution crimes within the jurisdiction of this Court, even in relation to conduct occurring in a State not party to the Statute.Footnote 77
Thus, the Chamber found that the risk of international criminal liability was ‘acute to such a degree that it was foreseeable to an officer of Mr Abd-Al-Rahman’s rank’.Footnote 78
The decision of the Appeals Chamber suggesting that non-State Party Nationals are entitled to an individualized determination of whether the Rome Statute can be applied to them consistent with the legality principle raises serious conceptual and practical concerns. While certain authors have embraced the decision’s restrictive approach,Footnote 79 others have noted that it may lead to ‘disconcerting results, no sound normative principle supports it, and [it] […] does not correspond to the design of the creators of the ICC Statute’.Footnote 80
Indeed, it is hard to imagine how the Court will function if the norms in the Statute cannot be applied to individuals hailing from countries that have not joined the Court or whose national legislation does not include ICC crimes. At the present time, the list of non-State party nationals indicted or under investigation by the ICC for crimes committed either in their own jurisdiction (Sudan and Libya) or on the territories of other ICC States Parties or States accepting the jurisdiction of the Court is extensive. It includes the situation in Bangladesh/Myanmar, State of Palestine, and Ukraine, and before the preliminary examinations were dismissed also included the Registered vessels of the Comoros and the Situation in South Korea. It appears that some authors have embraced the notion of a ‘Court à la carte’ – which was the model rejected at Rome – due to a fundamental misapprehension of the principles underlying the ICC’s jurisdiction. A full discussion of this issue is not possible within the confines of this short chapter; however, as I have written elsewhere, jurisdiction is conferred by States upon the ICC, not ‘delegated’ to them, meaning that they do not transfer bits of their national sovereignty to the Court when they join but instead collectively confer power and authority on the ICC as an independent judicial entity.Footnote 81 The ICC is an international institution that, like the ad hoc tribunals for the former Yugoslavia and Rwanda, exercises the ius puniendi of the international community.Footnote 82
Crimes against humanity have been identified as crimes that the international community and States have a shared responsibility to protect under paragraphs 138 and 139 of the 2005 World Summit Outcome Document,Footnote 83 as jus cogens offences by the International Law Commission,Footnote 84 and have been included in every international criminal court and tribunal Statute established since the Nürnberg tribunal except for the Special Tribunal for Lebanon. Moreover, Article 7 is increasingly seen by international and national courts and tribunals, including the ICTY, the European Court of Human Rights, the Inter-American Court of Human Rights, US federal courts, and the UK House of Lords, as codifying the customary international law of crimes against humanity.Footnote 85 Since there is no treaty on crimes against humanity, many States also have no legislation on crimes against humanity.
The Appeals Chamber’s decision in Abd-Al-Rahman raises the specter that certain Rome Statute crimes might be opposable vis-a-vis certain accused whereas others would not, depending on the national legislation in force at the time and place the crimes occur. This would mean that the ICC’s judges are incorporating through the backdoor by means of judicial interpretation arguments raised about the Rome Statute that were rejected during the negotiations. Indeed, the ICC judges were conceptualizing the ICC as if it were a foreign court operating under the principle of universal jurisdiction, where double criminality might indeed pose difficulties. In 2021, a panel of the French Cour de Cassation found that a Syrian national could not be tried for crimes against humanity under universal jurisdiction because Syria had not criminalized crimes against humanity, which violated the principle of double criminality.Footnote 86 This was reversed by the full Court, which found that the underlying acts of murder, rape, and torture were criminal, and therefore the prosecution could proceed. That holding notwithstanding, the Court noted that certain war crimes and the crime of persecution could not be prosecuted in France under universal jurisdiction.Footnote 87 It did not consider the possibility that those crimes could be tried under customary international law.
12.4 The Proposed New Crimes Against Humanity Convention and Its Relationship to Customary International Law
12.4.1 Article 7 of the Rome Statute: Theme and Variations
I have asserted in this chapter that Article 7 of the Rome Statute codified, crystallized, and to a limited extent created a customary international law of crimes against humanity in 1998, and that this body of law can fairly and legally be applied to the nationals of State and non-States parties by the Court. In one important aspect, it is narrower and more restrictive than customary international law in requiring proof of a State or organizational policy. In other limited ways, it is modestly more progressive as a limited number of new crimes were added to the text. It is also evident that the Rome Statute codification is different than the texts of the various ad hoc tribunals. Finally, there are variants of crimes against humanity in national legislation. What is to be done about the various iterations of this crime in national and international law?
During the Rome Statute’s negotiation, recognizing this, the late Professor M Cherif Bassiouni, who chaired the Drafting Committee at Rome, proposed the inclusion of a provision in the future court’s statute to endeavour to preserve the existence of customary international law outside the Rome Statute.Footnote 88 It was incorporated as Article 10, which provides that ‘[n]othing in this Part of the Statute shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute’.Footnote 89 Thus, the ICC Statute itself envisages that, like war crimes, crimes against humanity in the Rome Statute emerged from customary international law, represents a partial codification of customary international law, and remains in relationship to customary international law, which may continue to develop outside the Rome Statute itself in both national and international courts. The implication of this for the new treaty on crimes against humanity is discussed below.
12.4.2 Drafting a New Crimes Against Humanity Convention: Unity, Diversity, and Evolution
Returning to our theme of ‘unity, diversity, and evolution’, the negotiation of a new multilateral treaty on crimes against humanity has evinced the same trends and instincts manifested during the negotiation of the Rome Statute and its subsequent interpretation by the Court and in academic writings. As noted earlier, States are in the process of discussing a new treaty on crimes against humanity.Footnote 90 This conversation has been ongoing ever since the Crimes Against Humanity InitiativeFootnote 91 published a Proposed Convention on the Prevention and Punishment of Crimes Against Humanity in 2010.Footnote 92 Attention increased after the ILC added ‘crimes against humanity’Footnote 93 to its long-term programme of work in 2013. In October 2019, the second (final) set of draft articles was taken up by the United Nations General Assembly’s Sixth Committee, which considers legal issues.Footnote 94 After six years of consistent advocacy by States and civil society, the treaty has finally been sent to negotiations by the UN General Assembly on the basis of consensus, after significant negotiations occurring during the Fall of 2024.Footnote 95 Pursuant to Resolution 79/122, the negotiations will begin in 2026 with the convening of a Preparatory Committee that will meet in two sessions (2026 and 2027), followed by two rounds of treaty negotiations at a UN Diplomatic Conference to take place in 2028 and 2029.Footnote 96 During the negotiations in 2024, 124 States voiced support for moving forward,Footnote 97 and a declaration supporting the adoption of a new treaty was adopted and circulated by more than 650 civil society organizations and individuals from around the world.Footnote 98 Resolution 79/122 was adopted without a vote by the General Assembly and on the basis of consensus by the Sixth Committee; however, the Russian Federation dissociated on both occasions. Given that negotiations on the new treaty will begin in earnest in 2026, the question of how the crime should and will be defined remains on the table.
12.4.2.1 Unity and Evolution
When it adopted a model draft treaty in 2010, the Crimes Against Humanity Initiative took the view that the definition of the crime in a new treaty should track the Rome Statute. Most participants in the meetings held in St Louis and The Hague in 2009 were of the view that the ‘convention must complement the Rome Statute and do no harm to the ICC’.Footnote 99 The International Law Commission took the same position, based upon the large number of States already adhering to the Rome Statute. The Commission also wished to support and promote the harmonization of existing international law.Footnote 100 Thus, Draft Article 2(1) and (2) of its text was drawn almost verbatim from Article 7(1) and (2) of the Rome Statute of the Rome Statute, with three exceptions, two of which, the deletion of the definition of genderFootnote 101 and the narrowing of the definition of persecution, were substantive.
At the same time, paragraph 2(3) contains a ‘without prejudice’ clause, making it clear that inclusion of the Rome Statute’s definition was without prejudice to broader definitions that may exist in international instruments, customary international law, or national law. Indeed, the ILC, notably, did not see its task as reflecting customary international law in the new treaty’s definition. Rather, in the Commission’s view:
While some aspects of these draft articles may reflect customary international law, codification of existing law is not the objective […] rather, the objective is the drafting of provisions that would be both effective and likely acceptable to States, based on provisions often used in widely adhered to treaties addressing crimes, as a basis for a possible future convention. Further, the draft articles are without prejudice to existing customary international law.Footnote 102
Particularly over the last two years, meeting pursuant to a structured meeting schedule and clear rules for debate set forth in Resolution 77/249 and organized by the Bureau of the Sixth Committee, States have debated whether or not a new treaty on crimes against humanity should take Article 7 of the Rome Statute as a given. Delegations have urged caution in amending the existing definition given that it was difficult to achieve consensus on the definition of crimes against humanity at Rome. Thus, the case for ‘unity’ is a strong one, particularly given the delicate compromise achieved in 1998.
At the same time, a trend away from ‘strict’ unity towards evolution has become evident during the past two years. This seemed particularly true during the April Resumed Session of 2024, held from 1–5 April 2024, during which many States expressed the view that evolution has taken place over the past twenty-five years and minor changes, reflecting the current state of the law, could and should be accommodated.Footnote 103 In their view, while the overall goal was a clear, stable, and useful definition of crimes against humanity, the treaty should function as a ‘floor’, not a ‘ceiling’, as some States might wish to adapt the definition in their national law by eliminating the policy element, for example, if they believed it was more consistent with customary international law. Many States suggested that this should be particularly so given that elements were added during the Rome Statute’s negotiation as jurisdictional filters to avoid overloading the docket of the Court and to reinforce the principle of complementarity. Thus, the preoccupation would not necessarily apply to a crimes against humanity convention implemented directly by States at the horizontal level.Footnote 104
12.4.2.2 Diversity
During the final Resumed Session of the Sixth Committee, which met between 1–11 April 2024, two trends seemed apparent. First, even the large group of States Parties to the Rome Statute, which have been generally supportive of the crimes against humanity treaty, expressed openness to consider a limited number of changes to the text, as discussed above.Footnote 105 Another quite small group, led by China, that is not supportive of the treaty, has suggested that the ILC needs to go back and study State practice.Footnote 106
In terms of the issues and amendments currently on the table, several are worth noting. These are helpfully summarized by Written Chair Summary of the last two years Resumed Sessions, as well as the Oral Report of the co-Facilitators of the Sixth Committee session.Footnote 107 Issues have been raised regarding sexual and gender-based crimes, as well as reproductive violence. Many, but not all, States have expressed support for the Commission’s decision to remove the definition of gender in Article 7(3) of the Rome Statute, finding it to be outdated. Other suggestions have been the inclusion of forced marriage as a new crime. A proposal has also been advanced to amend the crime of forced pregnancy and recognize the existence of other forms of reproductive violence.Footnote 108 An amendment to Draft Article (2)(1)(g) has been proposed to add ‘sexual or reproductive violence’ (proposed additional text is italicized) to recognize grave violations of reproductive autonomy that may exist in addition to the two codified crimes. Finally, a proposal is on the table to amend the definition of apartheid in Draft Article 2(1)(j) by adding gender apartheid to the text.Footnote 109 While the inclusion of forced marriage would be a codification of a customary international law development, given its adjudication by three international criminal courts to date as an ‘other inhumane act’, the addition of new crimes involving reproductive and sexual violence, and the inclusion of gender apartheid, would involve either the crystallization of an emerging norm or the inclusion of a new norm of international criminal law as these crimes have not yet been accepted as part of existing state practice.
Another set of changes proposes amending the definition of enforced disappearance in Draft Article 2(2)(i) to bring it into line with the 2006 International Convention for the Protection of All Persons from Enforced DisappearanceFootnote 110 and another would broaden the definition of persecution in Draft Article 2(1)(h) either by removing the necessity of a linkage between this crime and one of the other crimes entirely or expanding the crimes for which the linkage could be established.Footnote 111 A proposal that has received widespread support and is being championed by Sierra Leone is to add the slave trade to Draft Article 2(1)(c). Sierra Leone has also tabled a proposal to submit amendments on slavery and the slave trade to Articles 7 (crimes against humanity) and 8 (war crimes) of the Rome Statute. Finally, as mentioned earlier, other possible new offences have been of interest to States including colonialism, starvation of a civilian population, environmental crimes and ecocide,Footnote 112 unilateral coercive measures against civilians, terror related acts, use of nuclear weapons, exploitation of natural resources, and crimes against indigenous peoples.Footnote 113 While many of these suggestions have not yet been advanced as formal proposals, over the next three years, as the treaty gets negotiated, there will be an opportunity for them to do so.
12.5 Concluding Thoughts
As discussed earlier, crimes against humanity exist in a complex international ecosystem. They emerged first as a natural law objection to slavery and the slave trade that was found legally wanting even if morally compelling. Only later, in the first half of the twentieth century, faced with the horror of the Holocaust, did they find footing in treaty and customary international law. They were then codified and crystallized as treaty law in the guise of the Rome Statute and are now used by national systems in achieving post-conflict justice and in universal jurisdiction casesFootnote 114 and at the ICC. Through judicial development at the ad hoc tribunals, national courts, and later at the ICC, the overall contours of this crime now appear to be relatively well-settled although different iterations continue to appear in international law statutes, national legislation, and customary international law. This diversity of text and its application by national and international courts and tribunals has allowed the crime to evolve more freely than, for example, war crimes, which are heavily codified in international treaties, so as to respond to new manifestations of criminality or even highlight long-standing injustices such as colonialism and the slave trade that have historically been condemned but left outside modern texts of international criminal law. The potential expansiveness of this offence, however, has raised questions of legality and fairness to the accused, which have been explored in national and international courts.
What does this mean for the re-codification of this crime in a new treaty? While the ILC largely transplanted the Rome Statute definition of the crime into its draft text, as did our non-governmental project, there now appears to be a certain appetite for change amongst States and members of civil society. This is understandable, for, as Carsten Stahn recently wrote, the Rome Statute is ‘still modern, but with growing age, it also gains wrinkles’.Footnote 115 Each of these codifications is seen as a ‘floor’ rather than a ceiling; a minimum ‘must have’ that States must incorporate in order to comply with their treaty obligations. If the Rome Statute is the current floor, any additions in the new crimes against humanity treaty would presumably not be more restrictive but would potentially add new crimes to the eleven now found in Article 7 of the Rome Statute. At the end of the day, however, States will have to decide how to manage their treaty obligations, and some may not wish to ratify a new treaty that has a different definition than the Rome Statute, particularly if they are required to amend existing national legislation to do so.Footnote 116
Of course, a large number of Rome Statute State Parties never incorporated crimes against humanity in their national laws, because the Rome Statute does not actually require them to do so. Instead, the preamble speaks only of a general ‘duty’ of States to prosecute international crimes.Footnote 117 And the sixty-eight or so non-ICC Party States will presumably not find themselves in a conflictual position. The United States, for example, does not currently have national legislation on crimes against humanity, and Ukraine did not until very recently. Thus, it may be both desirable and achievable for States to amend the definition of the crime in negotiating the new treaty. Finally, States are not required to copy-paste either the Rome Statute or the definition of the new treaty into their national law; while they arguably would not be in compliance with the new treaty if they adopted more restrictive provisions than those provided for in the text, Draft Article 2(3) as it currently stands allows them to adopt more expansive definitions, so long as the definition is ‘broader’.
In its Draft Articles, the ILC took a positivist approach, suggesting at one point in the commentaries that any deviation from the definition would mean that a State could not rely upon the rest of the treaty in terms of cooperation, etc.Footnote 118 Yet although modifications of the definition might under some circumstances raise questions under the doctrine of double criminality with respect to mutual legal assistance, assuming the variations are ‘material’,Footnote 119 they are not usually firm impediments to interstate cooperation. This comment by the Commission represents a shift away from the universalist approach of the Rome conference itself,Footnote 120 towards a more restrictive approach to even the most serious international crimes.
The preamble of the Draft Articles notes the jus cogens status of crimes against humanity. The question of what this means is vitally important for the functioning of this possible new treaty. In the Furundžija case, decided during the same period as the Rome Statute’s negotiation and adoption, the ICTY found that the peremptory status of the norm against torture meant not only that States had a duty not to commit torture but that they were permitted to try or extradite individuals accused of torture on the basis of universal jurisdiction, could not be subject to any statute of limitations, and were crimes of a ‘universal character’.Footnote 121 Both the proposed draft treaty and the Rome Statute itself envisage the possibility that States might develop new iterations of crimes against humanity, that may, in turn, create new customary international law. Thus, even with the re-codification of crimes against humanity in a new treaty, the need to consult customary international law both in the interpretation of that instrument and in terms of its continued development, will remain important. In this way, the crime will continue to evolve as a matter of customary international law, and we can expect to see a certain degree of divergence from the Rome Statute and diversity even in national laws on the subject. While mindful of the need for clarity and uniformity to protect to the rights of the accused and ensure that States understand their obligations of prevention and punishment, a certain degree of flexibility – such as we have seen in adjudications of crimes against humanity over the past thirty years – will allow this important category of international crime to remain a critically important legal protection for civilians, in peacetime and during armed conflict, from egregious attacks on their dignity and security.
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