Critical Evaluation of the ICJ Approach in Evolutionary Interpretation

Katayoun Hosseinnejad, ‘Critical Evaluation of the ICJ Approach in Evolutionary Interpretation’, Iranian Review for UN Studies, 1 (2018), 119–44

26 Pages Posted: 1 Feb 2019

See all articles by Katayoun Hosseinnejad

Katayoun Hosseinnejad

Graduate Institute of International and Development Studies (IHEID)

Date Written: 2018

Abstract

This article aims to evaluate the underlying foundation of the reasoning of the International Court of Justice (ICJ) on evolutionary interpretation of treaties. The paper questions the common narrative on the evolutionary interpretation based on the generic nature of terms and the presumed intention. It argues that the decision about genericity of terms cannot be decided on the basis of the textual interpretation of the terms of a treaty. Nor, the intention of the parties or the presumed intention can provide the proper ground for making such a decision, as the intention of a writer is always constructed by the reader. Based on the idea that interpretation of law is an act within the legal sphere that follows the rationality of that legal system, the paper argues that what determines the content of a norm to evolve in time is its legal nature considered together with the purpose it aims to serve within the ambit of a legal system.

Keywords: International Court of Justice; Treaties; Evolutionary interpretation; Textual approach; Object and purpose

Suggested Citation

Hosseinnejad, Katayoun, Critical Evaluation of the ICJ Approach in Evolutionary Interpretation (2018). Katayoun Hosseinnejad, ‘Critical Evaluation of the ICJ Approach in Evolutionary Interpretation’, Iranian Review for UN Studies, 1 (2018), 119–44. Available at SSRN: https://ssrn.com/abstract=3317120

Katayoun Hosseinnejad (Contact Author)

Graduate Institute of International and Development Studies (IHEID) ( email )

PO Box 136
Geneva, CH-1211
Switzerland

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