¹ 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331, Art. 31, General rule of interpretation, ‘1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: a. any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; b. any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: a. any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; b. any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; c. any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended’.

² Legality of the Threat or Use by a State of Nuclear Weapons, Advisory Opinion of 8 July 1996, [1996] ICJ Rep. 66, at 75, para. 19, states Art. 31 of the Convention to express ‘the customary rule of interpretation’.

³ J. Alvarez, International Organizations as Law-makers (2005), 1: ‘IOs are typically collections of sovereign states that have banded together as states to create, under a constitutive international agreement governed by international law usually know as a “charter” or a “constitution,” an apparatus, more or less permanent, charged with the pursuit of certain defined common ends.’ And fn.1: ‘This simple, albeit vague, definition is the most commonly accepted in the field . . . three elements are important, namely, establishment (1) by international agreements between states; (2) of at least one organ distinct from member states and capable of so acting; and (3) under international law’.

⁴ Art. 4 of the VCLT precludes application of the Vienna Convention to treaties whose entry into force predates the Convention, although this is stated to be without prejudice to rules of treaty interpretation with a basis in international law, independent from the Convention.

⁵ See Nuclear Weapons, supra note 2, at 74, para. 19.

⁶ Ibid.

⁷ The First Admissions case, Admission of a State to the United Nations (Charter, Article 4), Advisory Opinion of 28 May 1948, [1948] ICJ Rep. 57; Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, [1949] ICJ Rep. 174; the Second Admissions case, Competence of Assembly regarding Admission to the United Nations, Advisory Opinion of 3 March 1950, [1950] ICJ Rep. 4; Effect of Awards of Compensation made by the United Nations Administrative Tribunal, Advisory Opinion of 13 July 1954, [1954] ICJ Rep. 47; and Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, [1962] ICJ Rep. 151.

⁸ See Nuclear Weapons, supra note 2.

⁹ Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization, Advisory Opinion of 8 June 1960, [1960] ICJ Rep. 150.

¹⁰ Art. 34(3) of the 1945 Statute of the ICJ, 1 UNTS 16, within Chapter II, Competence of the Court is as follows: ‘Whenever the construction of the constituent instrument of a public international organization or of an international convention adopted thereunder is in question in a case before the Court, the Registrar shall so notify the public international organization concerned and shall communicate to it copies of the written proceedings’.

¹¹ Art. 69(3) of the 1978 Rules of Court (as amended) states: ‘In the circumstances contemplated by Article 34, paragraph 3, of the Statute, the Registrar, on the instructions of the Court, or of the President if the Court is not sitting, shall proceed as prescribed in that paragraph. The Court, or the President if the Court is not sitting, may, as from the date on which the Registrar has communicated copies of the written proceedings and after consulting the chief administrative officer of the public international organization concerned, fix a time-limit within which the organization may submit to the Court its observations in writing. These observations shall be communicated to the parties and may be discussed by them and by the representative of the said organization during the oral proceedings’.

¹² However, notably, Art. 34(3) is more often engaged on its alternate basis, because the Court is called upon to construe an international convention adopted under the authority of an IO. In this way, the 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 974 UNTS 178, accounts for multiple notifications to the International Civil Aviation Organization (see Aerial Incident of 27 July 1955 (Israel v. Bulgaria), Judgment of 26 May 1959, [1959] ICJ Rep.127; Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment of 18 August 1972, [1972] ICJ Rep. 46; and Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom, Libyan Arab Jamahiriya v. United States of America), Judgment of 27 February 1998, [1998] ICJ Reps. 3 and 114); the 1948 Pact of Bogata (i.e., American Treaty on Pacific Settlement, 30 UNTS 55) for references to the Organization for American States (see Border and Transborder Armed Actions (Nicaragua v. Honduras), Judgment of 20 December 1988, [1998] ICJ Rep. 69; and Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Judgment of 24 September 2015); and the Genocide Convention (see Application of Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Judgments of 11 July 1996, [1996] ICJ Rep. 595, and of 26 February 2007, [2007] ICJ Rep. 43); the 1979 Convention on Discrimination against Women, 1249 UNTS 13, (see Armed Activities on the Territory of the Congo (New Application) (DRC v. Rwanda), Judgment of 3 February 2006, [2006] ICJ Rep. 6); and the 1965 International Convention on the Elimination of Racial Discrimination, 660 UNTS 195 (see Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Judgment of 1 April 2011, [2011] ICJ Rep. 70) to the Secretary General of the United Nations.

¹³ This pattern attracts comment in Section 4.2.

¹⁴ Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment of 18 August 1972, [1972] ICJ Rep. 46.

¹⁵ Whaling in the Antarctic (Australia v. Japan; New Zealand intervening), Judgment of 31 March 2014, [2014] ICJ Rep. 226.

¹⁶ The Status of South-West Africa case, International Status of South-West Africa, Advisory Opinion of 11 July 1950, [1950] ICJ Rep. 128; the Voting Procedure on South-West Africa case, Voting Procedure on Questions Relating to Reports and Petitions Concerning the Territory of South-West Africa, Advisory Opinion of 7 June 1955, [1955] ICJ Rep. 67; and the Presence in South-West Africa case, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, [1971] ICJ Rep. 16.

¹⁷ A. Aust, Modern Treaty Law and Practice (2013), 208.

¹⁸ See ILC Draft Articles on the Law of Treaties with Commentaries, 1966 YILC, Vol. II, at 219, para. 8, emphasizing that interpretation using Art. 31 is a ‘single combined operation’.

¹⁹ Fitzmaurice, M., ‘The Practical Working of the Law of Treaties’, in Evans, M. (ed.), International Law (2010), 172 CrossRefGoogle Scholar at 184.

²⁰ ILC Commentary, supra note 18, at 220, para.11.

²¹ See Alvarez, supra note 3, at 84.

²² See UN Doc. A/RES/113(II) (1947).

²³ Art. 4(1) reads as follows: ‘Membership of the United Nations is open to all other peace-loving States which accept the obligations contained in the present Charter, and in the judgment of the Organization, are able and willing to carry out these obligations’.

²⁴ See First Admissions, supra note 7, at 58.

²⁵ Ibid.

²⁶ Ibid., at 60.

²⁷ Ibid., at 61.

²⁸ Ibid., at 62.

²⁹ Ibid., the Court states: ‘The English and the French texts of paragraph 1 of Article 4 have the same meaning, and it is impossible to find any conflict between them.’ The ICJ's predecessor (the Permanent Court of International Justice in a 1924 judgment) has said: ‘Where two versions possessing equal authority exist one of which appears to have a wider bearing than the other, it is bound to adopt the more limited interpretation which can be made to harmonise with both versions and which, as far as it goes, is doubtless in accordance with the common interpretation of the parties’ (see Fitzmaurice, supra note 19, at 184). Whereas Art. 33 of the VCLT relies upon a linguistic reconciliation ‘having regard to the object and purpose of the treaty’.

³⁰ See First Admissions, supra note 7, at 62.

³¹ Ibid., at 63.

³² Ibid., at 65.

³³ Ibid., at 64.

³⁴ Ibid., at 82 (Judges Basdevant, Winiarski, Sir Arnold McNair and Read, Dissenting Opinion).

³⁵ Ibid., at 86.

³⁶ Ibid., at 62.

³⁷ Ibid., at 63.

³⁸ Ibid., at 62.

³⁹ See UN Doc. A/RES/296(IV) (1949).

⁴⁰ See Second Admissions, supra note 7, at 7.

⁴¹ Ibid., at 8.

⁴² Ibid., at 9.

⁴³ See ICAO Council Appeal, supra note 14, at 50, para. 9; Pakistan also relied upon Section 2 of Art. II of the related 1944 International Air Services Transit Agreement, 84 UNTS 290, which likewise affords recourse to the ICAO Council for disputed interpretation and application of the Agreement; the ICJ has regard to both the Convention, 15 UNTS 295, and the Agreement as a basis for the Council's jurisdiction.

⁴⁴ Ibid., at 51, para. 10.

⁴⁵ Ibid., at 54, para. 16.

⁴⁶ Ibid., at para. 16(a).

⁴⁷ Ibid., at para. 16(d).

⁴⁸ Ibid., at 54, para. 17.

⁴⁹ Ibid., at 56, para. 17(d).

⁵⁰ Ibid., at 64, para. 32.

⁵¹ Ibid.

⁵² C. Amerasinghe, Principles of the Institutional Law of International Organizations (2005), 45.

⁵³ Alvarez, supra note 3, at 99, expresses the concern that ‘[r]esort to negotiating history often advantages those rich states with the resources to maintain archival records, their own or the organization's, as well as the ability to participate widely in negotiation conferences’.

⁵⁴ See Nuclear Weapons, supra note 2, at 75, para. 19; Cf. in cases involving the interpretation of other types of treaty, the Court has held that ‘customary international law found expression in Article 31 of the Vienna Convention’ (see Kasikili/Sedudu Island (Botswana v. Namibia), Judgment of 13 December 1999, [1999] ICJ Rep. 1045, at 1059, para. 18) but is somewhat ambivalent about the status of Art. 32, and parsed it as ‘recourse may be had to supplementary means of interpretation such as the preparatory work and the circumstances in which the treaty was concluded’ (see Oil Platforms (Iran v. United States of America), Judgment of 12 December 1996, [1996] ICJ Rep. 803, at 812, para. 23).

⁵⁵ See First Admissions, supra note 7, at 63.

⁵⁶ See Second Admissions, supra note 7, at 7.

⁵⁷ Ibid., at 8.

⁵⁸ Ibid.

⁵⁹ See Maritime Safety Committee, supra note 9, at 151.

⁶⁰ Ibid., at 154, citing Art. 28(a) of the Constitution of the Inter-Governmental Maritime Consultative Organization: ‘The Maritime Safety Committee shall consist of fourteen Members elected by the Assembly from the Members, governments of those nations having an important interest in maritime safety, of which not less than eight shall be the largest ship-owning nations, and the remainder shall be elected so as to ensure adequate representation of Members, governments of other nations with an important interest in maritime safety, such as nations interested in the supply of large numbers of crews or in the carriage of large numbers of berthed and unberthed passengers, and of major geographical areas’.

⁶¹ Ibid., at 155.

⁶² Ibid., at 165, the word ‘selected’ in earlier drafts of the Article had been replaced, without explanation, by ‘elected’.

⁶³ Ibid., at 161.

⁶⁴ Ibid., at 165.

⁶⁵ See Aust, supra note 17, at 219.

⁶⁶ Ibid., at 215.

⁶⁷ See Nuclear Weapons, supra note 2, at 74, para. 19.

⁶⁸ R. Gardiner, Treaty Interpretation (2010), 225.

⁶⁹ See Aust, supra note 17, at 215.

⁷⁰ See Gardiner, supra note 68, at 227.

⁷¹ See Statute of the ICJ, supra note 10, Art. 38(1)(b).

⁷² See Gardiner, supra note 68, at 227.

⁷³ See Alvarez, supra note 3, at 80. However, Alvarez questions whether ‘acquiescence’ really reflects agreement, commenting (at 91) that ‘institutional practices may not be contested for a variety of reasons, including the absence of transparency, lack of financial or other resources to mount a challenge, or simply the fear of giving offence to the powerful’.

⁷⁴ See Second Admissions, supra note 7, at 9.

⁷⁵ See Nuclear Weapons, supra note 2, at 66, para. 1.

⁷⁶ Ibid., at 68, para. 1.

⁷⁷ Ibid; 1946 Constitution of the World Health Organization, 14 UNTS 185.

⁷⁸ See Nuclear Weapons, supra note 2, at 74, para. 19.

⁷⁹ Ibid., at 75, para. 20.

⁸⁰ Ibid., at 76, para. 21.

⁸¹ See Reparation for Injuries, supra note 7, at 182–3.

⁸² See Nuclear Weapons, supra note 2, at 80, para. 26.

⁸³ Ibid., at 81, para. 27.

⁸⁴ See Alvarez, supra note 3, at 91.

⁸⁵ See Amerasinghe, supra note 52, at 52.

⁸⁶ See Gardiner, supra note 68, at 249.

⁸⁷ See Nuclear Weapons, supra note 2, at 81, para. 27.

⁸⁸ See Whaling in the Antarctic, supra note 15, at 249, para. 51, citing Art. VIII(1) of the 1946 International Convention for the Regulation of Whaling, 161 UNTS 72.

⁸⁹ Ibid., at 256, para. 78.

⁹⁰ Ibid., para. 79.

⁹¹ Ibid., at 257, para. 83.

⁹² Ibid., and in any event, the Court finds that whilst these resolutions may incline to non-lethal research ‘they do not establish a requirement that legal methods be used only when other methods are not available’; see also, generally, Young, M. and Sullivan, S., ‘Evolution through the duty to cooperate: Implications of the Whaling Case at the International Court of Justice’, (2015) 16 MJIL 2 Google Scholar.

⁹³ See International Whaling Convention, supra note 88, at Art. VI, ‘The Commission may from time to time make recommendations to any or all Contracting Governments on matters which relate to whales or whaling and to the objectives and purposes of this Convention’.

⁹⁴ See Whaling in the Antarctic, supra note 15, at 248, para. 46; Cf. Judge Greenwood's Separate Opinion, at 405, paras. 5–7, and his highlighting of the Commission's ability to ‘in effect’ amend the Convention by passing ‘regulations’ with a three-fourths majority (Art. V(1) of the Convention); this can also be set against resolutions of the World Health Assembly which may determine WHO policy, agree treaties and adopt binding regulations, see 1946 Constitution of the World Health Organization, 14 UNTS 185 (as amended) and in particular Arts. 10–23 (Chapter V, The World Health Assembly) and Arts. 59–60 (Chapter XIII, Voting).

⁹⁵ See Amerasinghe, supra note 52, at 53.

⁹⁶ See Reparations for Injuries, supra note 7, at 179.

⁹⁷ See First Admissions, supra note 7, at 64.

⁹⁸ Cf. I. Gätzschmann, ‘Group of Eight (G8)’, in Max Planck Encyclopedia of Public International Law (2013), at para. 14: ‘The G8 is lacking all the elementary features of an international organization.’ And at para. 15, ‘[T]he G8 does not intend to articulate an autonomous will independent from its members. Joint declarations are not to be classified as an expression of the Group itself but rather as consolidated statements of the Heads of State and government . . . There is no legal obligation to enforce them and hence, no mechanism of accountability’.

⁹⁹ See D. Sarooshi, International Organizations and Their Exercise of Sovereign Powers (2005), Chapter 4.

¹⁰⁰ See Reparations for Injuries, supra note 7, at 183.

¹⁰¹ Ibid.

¹⁰² See Second Admissions, supra note 7, at 9.

¹⁰³ Ibid.

¹⁰⁴ Ibid.

¹⁰⁵ See UN Doc. A/RES/785(VIII) (1953).

¹⁰⁶ See Effect of Awards, supra note 7, at 48.

¹⁰⁷ Ibid., at 56.

¹⁰⁸ Ibid., at 57.

¹⁰⁹ Ibid., at 59.

¹¹⁰ Ibid., at 60–1.

¹¹¹ Ibid., at 61.

¹¹² Ibid., at 168.

¹¹³ See UN Doc. A/RES/1731(XVI) (1961).

¹¹⁴ Art. 17 of the UN Charter is as follows: ‘1. The General Assembly shall consider and approve the budget of the Organization. 2. The expenses of the Organization shall be borne by the Members as apportioned by the General Assembly. 3. The General Assembly shall consider and approve any financial and budgetary arrangements with specialized agencies referred to in Article 57 and shall examine the administrative budgets of such specialized agencies with a view to making recommendations to the agencies concerned’.

¹¹⁵ See Certain Expenses, supra note 7, at 157.

¹¹⁶ Ibid., at 159.

¹¹⁷ Ibid.

¹¹⁸ Ibid., at 160.

¹¹⁹ Ibid.

¹²⁰ Ibid.

¹²¹ Ibid., at 161.

¹²² Ibid., at 163.

¹²³ Ibid., at 168.

¹²⁴ Ibid., at 172.

¹²⁵ Ibid., at 177.

¹²⁶ See Status of South-West Africa, supra note 16.

¹²⁷ Ibid., at 133.

¹²⁸ Ibid., at136.

¹²⁹ Ibid., at 137.

¹³⁰ Ibid., at 136.

¹³¹ See Voting Procedure on South-West Africa, supra note 16, at 68.

¹³² Ibid., at 69.

¹³³ Ibid., at 74.

¹³⁴ Ibid., at 75.

¹³⁵ See Presence in South-West Africa, supra note 16.

¹³⁶ See Aust, supra note 17, at 215, calls it ‘the best, and most often quoted, example’.

¹³⁷ See Voting Procedure on South-West Africa, supra note 16, at 22, para. 21.

¹³⁸ Ibid., at 22, para. 22.

¹³⁹ See Fitzmaurice, supra note 19, at 187.

¹⁴⁰ See ILC Commentary, supra note 18, at 210, para. 6.

¹⁴¹ Ibid., at 221, para. 5: in the context of the discussion of the positioning of pacta sunt servanda in the Convention, the ILC were ‘strongly of the opinion that a means should be found in the ultimate text of any convention on the law of treaties. . . to emphasize the fundamental nature of the obligation to perform treaties in good faith. The motif of good faith, it is true, applies throughout international relations; but it has a particular important in the law of treaties’.

¹⁴² See Amerasinghe, supra note 52, at 46.

¹⁴³ Campbell, A., ‘The Limits of Powers of International Organisations’, (1983) 32 ICLQ 523, at 523CrossRefGoogle Scholar.

¹⁴⁴ See UN Doc. A/RES/196(III) (1948).

¹⁴⁵ See Reparation for Injuries, supra note 7, at 177.

¹⁴⁶ Ibid., at 178.

¹⁴⁷ Ibid.

¹⁴⁸ Ibid.

¹⁴⁹ Ibid., at 178–9, referring to the UN Charter at Art. 2(5); Art. 24; Art. 10; and Art. 105, respectively.

¹⁵⁰ Ibid., at 179, referring to the UN Charter at Arts. 43 and 77.

¹⁵¹ Ibid., albeit whilst the UN is not itself a party to the 1946 Convention, 1 UNTS 15, the Convention is a source of rights as between the UN and its members.

¹⁵² Ibid.

¹⁵³ Ibid.

¹⁵⁴ Ibid., at 185.

¹⁵⁵ See Effect of Awards, supra note 7, at 57.

¹⁵⁶ Ibid.

¹⁵⁷ See Reparation for Injuries, supra note 7, at 182.

¹⁵⁸ See Nuclear Weapons, supra note 2, at 77, para. 22.

¹⁵⁹ Ibid., at 78, para. 25.

¹⁶⁰ Ibid.

¹⁶¹ Ibid., at 80, para. 26.

¹⁶² Ibid., at 80, para. 27.

¹⁶³ See Alvarez, supra note 3, at 80.

¹⁶⁴ Österdahl, I., ‘International organizations – institutions and organs’, in Klabbers, J. and Wallendahl, A. (eds.), Research Handbook on the Law of International Organizations (2011), 156 Google Scholar.

¹⁶⁵ Cf. Art. 92 of the UN Charter states that the ICJ is the ‘principle judicial organ’ of the UN.

¹⁶⁶ See Certain Expenses, supra note 7, at 164 (original emphasis).

¹⁶⁷ 1945 Constitution of the International Labour Organization, 15 UNTS 35 (as amended).

¹⁶⁸ See Ragazzi, M., ‘International Financial Institutions’, in Max Planck Encyclopedia of Public International Law (2014)Google Scholar.

¹⁶⁹ See, for example, Art. XVIII of the Articles of Agreement of the International Monetary Fund, 2 UNTS 39 (as amended).

¹⁷⁰ See Certain Expenses, supra note 7, at 21.

¹⁷¹ J. Klabbers, An Introduction to International Institutional Law (2009), 90.

¹⁷² See Certain Expenses, supra note 7, at 158, ‘[T]he Court has not been asked to give an abstract definition of the words “expenses of the Organization”. It has been asked to answer a specific question related to certain identified expenditures which have actually been made. . .’; see Effects of Awards, supra note 7, at 50, ‘This Question is strictly limited in scope’; and see First Admissions, supra note 7, at 60, ‘[T]he Court is not called upon either to define the meaning and scope of the conditions on which admission is made dependent, or to specify the elements which may serve in a concrete case to verify the existence of the requisite conditions. . . The abstract form in which the question is stated precludes such interpretation’.

¹⁷³ Ibid.

¹⁷⁴ There appears to be only one occasion when an IO submitted observations to the Court pursuant to Art. 34(3) of the Statute of the ICJ, and this the ICAO did in Case Concerning the Aerial Incident of 3 July 1988 (Iran v. United States of America), Order of 22 February 1996, [1996] ICJ Rep. 9. The observations of the ICAO Council filed with the Court refer to the shooting down of an Iranian-registered civilian aircraft but state that the consequent request submitted by Iran to the Council regarding this incident did not make reference to Art. 84 of the Chicago Convention and therefore a decision amenable to appeal to the ICJ was not taken by the Council. However, the ICJ case settled before it came to judgment.

¹⁷⁵ See ICAO Council Appeal, supra note 14, at 48, para. 5; and also, for example, Whaling in the Antarctic, supra 15, at 234, para. 2.

¹⁷⁶ See Libya v. United Kingdom, supra note 12, at 12, para. 8.

¹⁷⁷ A. Zimmermann et al. (eds.), The Statute of the International Court of Justice: A Commentary (2012), 159.

¹⁷⁸ See Klabbers, supra note 171, at 86.