Hidden Meanings: Evolutionary Interpretation between Norm Application and Progressive Development

Abstract

Debates about the meaning of ‘evolutionary interpretation’ reveal the existence of two conflicting views. Some see evolutionary interpretation as an inevitable step in the ordinary process of applying fixed written language to changing reality. Others see it as a means for interpreters—and, crucially, adjudicators—to update the agreement being applied, infusing into the text the interpreter’s view of what would be a desirable development of the relevant provisions. Benefitting from the views expounded and decisions collected by the authors of Evolutionary Interpretation and International Law, edited by Georges Abi-Saab, Kenneth Keith, Gabrielle Marceau, and Clément Marquet (Hart 2020), this piece investigates two core questions that run through debates regarding evolutionary interpretation. First is the question of what is meant by evolutionary interpretation, whether an unavoidable step in the norm application process or a decision to develop obligations beyond their original scope. Second is the question of the distinctive role of adjudicators, i.e. of whether evolutionary interpretation is a tool used by adjudicators to exercise authority over the legal framework being applied, bypassing the constraints of the consent-based international rule-making system.

Keywords: international law, evolutionary interpretation, international rule-making, adjudicator, legal framework

JEL Classification: K33