Foreword
In this book, The Role of State Parties to the Rome Statute in the Interpretation of the Statute: An Evaluation of Past Practice and Future Prospects, Caroline Shilaho tackles an important question for international criminal law and public international law in general, namely the role of States in interpreting treaties such as the Rome Statute. She tackles the problem in a mature and systematic way. Yet, at the same time, Caroline is aware that the problem, while a doctrinal in nature, sits at the heart of a tension in international criminal law between two values: expansive interpretation in the pursuit of progressiveness and restrictive interpretation in promotion of the will of the States.
When Caroline first reached out to me about a possible PhD project on interpretation of the Rome Statute, she wore her heart on her sleeve. She was concerned about what she saw as an abuse of the Rome Statute, with States undermining the coherence and progressiveness of the Rome Statute by interfering with the function of the Court. But advocacy (often) makes for poor scholarship, and it wasn’t long before Caroline realised that to do justice to her project – even to do justice to the moral imperative that drove her – required the suppression of her emotions, and, instead, demanded that she conducts a dispassionate and objective assessment of the state of the law. This book is the result of that journey.
The means of interpretation – ordinary meaning, context, object and purpose, parties’ agreement as to interpretation (reflected in subsequent agreement and subsequent practice), other rules of international law and supplementary means of interpretation – all exist to mediate between competing interests and, in the process, find the objectively correct meaning of a treaty. The competing interests in question include the need to be true to intentions of the parties and the imperative of developing international law. For a proper interpretation, these means of interpretation, or at least the primary means reflected in Article 31 of the Vienna Convention, have to be thrown into the metaphoric crucible in order to find the objectively correct interpretation.
When a treaty provides for a mechanism with the authority to interpret that treaty, as is the case with International Criminal Court established by the Rome Statute – that mechanism performs a dual role. The Court, for example, is, at once, an interpreter, which is to say, it is dutybound to apply the rules of interpretation and thus, balance the means of interpretation at its disposal. At the same time, as an entity endowed with the authority by the Rome Statute to interpret its terms, it serves itself as a tool of interpretation (although not one of the means of interpretations explicitly provided for in the Vienna Convention), since its interpretation is to be taken into account by other interpreters, i.e. which is to say, it cannot be ignored. Its interpretation is thus authoritative. As the International Court of Justice has said in the Diallo case, in the context of human rights mechanisms established to interpret human rights treaties, it, meaning the ICJ, “ascribe[s] great weight to the interpretation adopted by this independent body that was established specifically to supervise the application of that treaty.”
In this second role, that of the Court as a tool of interpretation, the Court operates in a similar, though not the same way to the means of interpretation in Article 31(3) of the Vienna Convention, including subsequent agreements and subsequent practice. Of course, unlike subsequent agreements and subsequent practice, decisions of Courts, and other treaty-established bodies, cannot be called authentic interpretation. To recall the words of the ICJ in Diallo, the ICJ “is in no way obliged, in the exercise of its judicial functions, to model its own interpretation of the Covenant on that of” a body established to a treaty. Nonetheless, the interpretation of the Court cannot be ignored by either parties or other interpreters.
The question at the heart of Caroline’s book concerns the relationship between, on the one hand, the interpretation of States Party to the Rome Statute, the so-called authentic interpretation embodied in subsequent agreements and subsequent practice, and, on the other hand, the authoritative interpretation of a Court established precisely to interpret the Rome Statute. Which interpretation ought to take priority, particularly when there is a conflict. In the context of the normative tension I spoke of at the beginning, it should be accepted that the Court, the body established under the treaty to interpret the Rome Statute, will almost always adopt an expansive interpretation, while the States Party to the Statute, will almost always adopt a restrictive interpretation.
I would like to commend Caroline for taking on this project, and for bringing it to fruition in a mature and coherent way. I recommend this book to anyone interested in the law on interpretation, the International Criminal Court and the intersection between public international law and international criminal law.
Dire Tladi
Judge of the International Court of Justice