A Research On Application And Limitation Of Evolutionary Interpretation

With the passage of time, a treaty may not adapt to the situation when it was first concluded. Permissible modifications to a treaty that take into account the passing of time thus often require a new interpretation of its terms. To this end, a judge is often requested to redefine the meaning of a treaty without altering its nature. Such a manner of interpreting treaties is called evolutionary interpretation.Recent case law suggests that evolutionary interpretation has become a new trend in the area of treaty interpretation. With the passage of time, situation can never be the same with that when the treaty was first concluded. In thatcase, the court could use evolutionary interpretation if necessary. However, treaty interpretation is such a dynamic process, especially for a new interpretation method such as evolutionary interpretation. Since this method hasn’t been accepted as an international custom, and doesn’t have accurate rules about its applying, it gives the court too much power to decide when and how to use it. In some circumstances, it might lead to the abuse of power. Therefore, it is of great importance to set rules to this method. Firstly, the court should base on the intention of the contracting parties while using it, and find if the intention of the contracting parties is to make the treaty last for a long time. A treaty can evolve with time only if it lasts. Secondly, it is important to distinguish the construction meaning and application meaning of phrases in the treaty. The former is the activity of establishing the linguistic or semantic meaning of a text; the latter the activity of translating that text into workable legal rules to be applied in a given case. Only in this way can a treaty evolve with time without generating judicial activism.This article is divided into four chapters. Chapter One is an overview of the meaning of evolutionary interpretation. Chapter Two analyzes how evolutionary interpretation applies to treaties between equal sovereigns, and specify this process through the Case concerning the River San Juan. In such cases, the international judge will take particular care in ensuring that his interpretation is based on the will of the parties as manifested in the past. Chapter Three analyzes how evolutionary interpretation applies to worldwide institutional treaty. In such cases, the judge does not act as a mere instrument of the parties. He exercises an institutionalized judicial power the purpose of which is to ensure the continuing existence of objectives articulated by a community, and he will thus interpret meaning pursuant to these communal interests. Take its applying to WTO as an example. In Chapter Four, the limit to evolutionary interpretation will be discussed.The innovation of the thesis is that evolutionary interpretation will be discussed in two different kinds of treaties:one between equal sovereigns; the other worldwide institutional treaty. The differences between evolutionary interpretation and other treaty interpretation methods included in VCLT will be discussed as well.This article also discuss the limit to evolutionary interpretation from an unusual perspective:distinguish the construction meaning and application meaning of phrases in the treaty.