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| I. | Substantive International Law - First Part |
| 7. | LAW OF TREATIES |
| 7.8. | Interpretation |
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LaGrand Case
(Germany v. United States of America)
Judgment of 27 June 2001
[pp. ] 99. ... The Court will ... now proceed to the interpretation of Article 41 of the Statute. It will do so in accordance with customary international law, reflected in Article 31 of the 1969 Vienna Convention on the Law of Treaties. According to paragraph 1 of Article 31, a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of the treaty's object and purpose.
100. The French text of Article 41 reads as follows:
"1. La Cour a le pouvoir d'indiquer, si elle estime que les circonstances l'exigent, quelles mesures conservatoires du droit de chacun doivent être prises à titre provisoire.
2. En attendant l'arrêt définitif, l'indication de ces mesures est immédiatement notifiée aux parties et au Conseil de sécurité." (Emphasis added.)
In this text, the terms "indiquer" and "l'indication" may be deemed to be neutral as to the mandatory character of the measure concerned; by contrast the words "doivent être prises" have an imperative character.
For its part, the English version of Article 41 reads as follows:
"1. The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.
2. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council." (Emphasis added.)
According to the United States, the use in the English version of "indicate" instead of "order", of "ought" instead of "must" or "shall", and of "suggested" instead of "ordered", is to be understood as implying that decisions under Article 41 lack mandatory effect. It might however be argued, having regard to the fact that in 1920 the French text was the original version, that such terms as "indicate" and "ought" have a meaning equivalent to "order" and "must" or "shall".
101. Finding itself faced with two texts which are not in total harmony, the Court will first of all note that according to Article 92 of the Charter, the Statute "forms an integral part of the present Charter". Under Article 111 of the Charter, the French and English texts of the latter are "equally authentic". The same is equally true of the Statute.
In cases of divergence between the equally authentic versions of the Statute, neither it nor the Charter indicates how to proceed. In the absence of agreement between the parties in this respect, it is appropriate to refer to paragraph 4 of Article 33 of the Vienna Convention on the Law of Treaties, which in the view of the Court again reflects customary international law. This provision reads "when a comparison of the authentic texts discloses a difference of meaning which the application of Articles 31 and 32 does not remove the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted".
[p. ] 104. Given the conclusions reached by the Court above in interpreting the text of Article 41 of the Statute in the light of its object and purpose, it does not consider it necessary to resort to the preparatory work in order to determine the meaning of that Article. The Court would nevertheless point out that the preparatory work of the Statute does not preclude the conclusion that orders under Article 41 have binding force.
[pp. S.O. Shi] 3. In paragraph 77 of the Judgment, the Court, basing its interpretation of the subparagraph on the clarity of meaning of the text of the provision read in context, upheld that claim by Germany. I can readily accept this finding of the Court only if its interpretation of Article 36, paragraph 1 (b), is appropriate in the present case. Undoubtedly, the Court's interpretation is consistent with the well-known jurisprudence of this Court and of its predecessor that, if the relevant words in their natural and ordinary meaning make sense in their context, that is the end of the matter and there is no need to resort to other methods of interpretation (Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, I.C.J. Reports 1950, p. 8). However, in my view, indiscriminate reliance on such a dictum in any circumstances may not always be dependable or helpful in determining the true intention of the parties to a treaty. It can happen that for one reason or another - e.g., hasty or careless drafting, last-minute compromise in negotiations - the meaning clearly apparent from the text does not necessarily reflect that which the parties intended it to bear. Recourse to customary rules of interpretation as reflected in Article 31 of the Vienna Convention on the Law of Treaties may seem superfluous when the normal meaning of the text appears to be clear, but it does serve as a double check to prevent any possibility of misinterpretation.
