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Interpretation of Treaties: A Critical Analysis of the Khlaifia and Others v. Italy Case

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Added on 2024/07/03

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This essay examines the interpretation of treaties, focusing on the case of Khlaifia and Others v. Italy. It delves into the main aims and approaches to treaty interpretation, including subjective, textual, and teleological methods. The essay critically analyzes the reconcilability of these approaches, considering the principles of Dubio Mitius and evolutionary treaty interpretation. It explores the application of these principles in the Khlaifia case, highlighting the importance of respecting state sovereignty and the evolving nature of treaty obligations. The essay concludes by emphasizing the significance of treaty interpretation in ensuring the effective implementation of international law.

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Public International Law
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Contents
Introduction......................................................................................................................................3
Question 1.................................................................................................................................... 4
Please, identify the main aims of and approaches to the interpretation of a treaty;....................4
Question 2.................................................................................................................................... 6
Considering both statements above, critically analyse whether- and how- they would possibly
be reconcilable. Consider any possible argument which would support a different conclusion. 6
Conclusion..................................................................................................................................... 10
References......................................................................................................................................11
2

Introduction
In this essay, the detailed description is given about the international law as per the case of
Khlaifiaand Others V. Italy, where the Grand Chamber of European court under Human rights
provided the details about Evolutive Treaty Interpretation, particularly of the European
Convention on human rights. The Articles of 31 and 32 of the Vienna Convention are described
in various aspects. The principles of treaty interpretation is to ascertain the intention of parties
and that what the parties meant by the language used. The objective of Dubio Mitius principle is
to preserve and pay in regards to treaty for the sovereignty of parties. The main aim of
evolutionary treaty interpretation is international law commissioner gives effect to intention of
parties as fairly and fully as possible.
3

Question 1
Please, identify the main aims of and approaches to the interpretation of a treaty;
The states use treaty as the main tool for cooperation between them and for regulating
international relations. The interpretation of treaties has been a complex and important issue as it
lays the foundation of operation of laws and their correct application. The interpretation
represents the assignment of meaning to a research phenomenon and this term has been derived
from a Latin word ‘interpretatio’ meaning transposing the meaning of certain words of sentence
in a more known and understandable language for the recipient. The treaties are the principle
source of Public International Law and it is also an important tool to determine binding
international legal relations. It is a very efficient method and approach for management and
development of international relations.
The principles of interpretation of International Treaties are contained in Vienna Convention on
the Law of Treaties (VCLT). Such rules of interpretation are provided in Article 31 and 32 of
VCLT. Article 31 requires the interpretation of a treaty in good faith and further requires that
such interpretation must be in accordance with the meaning ordinarily be given to the treaty
terms in their context and in conformity with purpose and object. The article further provides that
the context of interpretation of treaties shall also include any agreement made between parties in
relation to treaties, any instrument which is made by one or more parties in connection with
treaty conclusion, in addition to text 1The third paragraph of treaty considers any subsequent
agreement between parties in relation to interpretation of treaty or any relevant rules of
international law applicable in relations between parties. Article 32 of VCLT provides for a
supplementary means of interpretation. It states that when the meaning under Article 31 is
ambiguous or obscure or leads to an unreasonable or absurd result, then in order to confirm the
meaning resulting from interpretation carried under article 31, recourse through supplementary
means of interpretation shall be done. Such supplementary means of interpretation shall include
preparatory work of the treaty and conclusion circumstances
1 Murphy, S.D., ‘The Utility and Limits of Canons of Construction in Public International Law’ (2018) 32 ICSID
Review.
4

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The main aim of interpretation of treaties is to ascertain the intention of parties and that what
the parties meant by the language used. There are three approaches to interpretation of treaties
which includes subjective, textual and teleological. Under subjective approach, the intention of
the parties is identified by taking into consideration all the related conduct andits making with
respect to the treaty. This conduct includes conduct of parties prior to treaty and subsequent to it,
historical background, aims and objectives of parties that are to be affected by the operation of
treaty 2. This approach believes that the words and phrases used have the meaning that the parties
attached thereto and to determine such meaning, the circumstances must be looked at. This
approach pays emphasis on intention of parties and refers to the processes of drafting and
negotiations that lead to the treaty conclusions. Under the textual approach, the actual wordings
of the treaty are valued. This approach is characterized by its nomer. Here, the interpretation is
confined to literal translations. This approach states that if a phrase, word or clause of a provision
of treaty is in dispute and the meaning thereof is natural, clear or plain, then the negotiations for
its interpretation shall not be a resort. This approach bases its’ concept on the premise that the
parties to treaty ratifies its text and not any other preliminaries and the authorities that ratified
such text were not present at the time when negotiations were carried and therefore they were not
in a position to evaluate the implications of such negotiations properly and as a result, at the time
of interpretation, the ratifications made on treaties must take only text into account. The last
approach is Teleological Approach. This approach seeks to interpret the treaty based on a broad
inquiry into the purposes and objects of treaty by the interpreter. Under this approach, attention
is given to the aim and purpose of treaty. It focuses on the statement of purposes and preamble of
the treaty. This approach takes into account the intention of treaty and not the parties. By its
nature, this approach is limited to multilateral treaties and conventions. This approach has a
tendency to legislate as it gives effect to the purposes and aims of treaty rather than aim and
objectives of parties to treaty. All these approaches are not mutually exclusive and the use of
more than one approach may be found in certain decisions by the courts 3
2 Gordon KJ Pohl, 'Investment Treaties Over Time - Treaty Practice And Interpretation In A Changing World'
[2015] SSRN Electronic Journal
3 Helfer L, 'Introduction To Symposium On Treaty Exit At The Interface Of Domestic And International Law' (2017)
111 AJIL Unbound
5

Question 2
Considering both statements above, critically analyse whether- and how- they would
possibly be reconcilable. Consider any possible argument which would support a different
conclusion.
Treaties interpretation: Treaties are foremost and first source of international law. When
international court decides any international dispute and its first endeavour is to search out
whether any international treaty is there or not. When any matter of dispute governs by the
international treaty then court decision is depends on the treaty provision. International treaties
hold the similar important position in the area of international law and occupy the municipal law.
The several methods of treaties are there in which duties and rights can be treated as in
international law which are directly unsophisticated. States allocates a wider amount of task with
the use of treaty device. From the beginning wars are settled, disputes terminated, specific
determination of interest, establishment of alliances, and development of international
organisations by the method of treaties. So treaties are the formal and direct method of
development of international law. It lies with the treaties importance 4
Treaty definitions: According to the words of several professors, the treaties of the international
agreements between the states and states organisation making legal treaties and rights. Treaties
are considered as the agreement between international law subjects developing a binding
responsibility under international law. It is a non verbal agreement where more than two
international business organisation or states wants to develop relations between themselves
functioning within the international law spheres
As per the case of Khlaifia and Others v. Italy regards with three nationals of Tunisian who left
the country on making shift boats objective to reach Italy in September 11 at the time of Arab
spring. The coast guard of Italy intercepted and took them to Lampedusa Island after that
Contrada Imbriacola place for registration that was overcrowded with inadequate place,
unacceptable sanitation and there is no coordination with outside world. The place was damaged
4 Law Teacher, 'Interpretation Of Treaties, Principles And Practice' (The Law Teacher, 2018)
<https://www.lawteacher.net/free-law-essays/international-law/interpretation-of-treaties-principles-law-essays.php.
https://www.lawteacher.net/free-law-essays/international-law/interpretation-of-treaties-principles-law-essays.php>
accessed 7 August 2018
6

by fire and they were shifted to Sports Park 5They were arrested and misbehaved and insulted by
police officers. After some days, they were shifted to Palermo Airport and identified by consul of
Tunisian who reported the information to Tunisia depends on bilateral agreement between two
places. The court held that they were dispossessed by their liberty against to the Article 5(1)
ECHR and no legal factor in national law for their detention. It is violated as the person not
given any direct communication about factual and legal basis of the detention. The authorities of
Italy gives discharge decrees which are claimed and provided to the repatriation execution by
mentioning that they came in state with illegal method and their removal is ordered. The court
further considered that provided information is inadequate and incomplete. Apart from that rights
of the applicants are challenged as per Article 5(4) ECHR was ineffective 6
Principles of Dubio Mitius: It is get to providing to a word the meaning is not burdensome to
the person thinks that any right and responsibility and infers low with personal supremacy and
protective defence of the party and also includes less common prohibitions on the individuals. It
is occasionally defined as unconfirmed interpretation in the term which needed to translate
obligation of treaty in regard to states sovereignty and power. It is also known as uncontrolled
interpretation in respect with the state power and sovereignty.
The objective of this rule is to preserve and give in regards to treaty for the sovereignty of every
individual party. All treaties at international level apply responsibilities on states and restricts the
applicability of states power and sovereignty. The rule of giving regard to respect to the country
sovereignty not be translated in a wide method and to permit contractual person absconding from
obligations and commitments of a treaty. It is determined as the perfect principle for treaty law if
not it is the responsibility of states to fulfil faithfully obligations as needed by treaty. This rule is
not prescribed in Dubio Mitius in the VCLT, but it is determined as additional method for a
treaty explainer to consider the version. For treaty explainer, this rule determined as additional
method in its application and function
5 'European Court Of Human Rights: Khlaifia And Others V. Italy (No. 16483/12) [Articles 3, 5 And 13 ECHR,
Article 4 Protocol No. 4] | European Database Of Asylum Law' (Asylumlawdatabase.eu, 2018)
<http://www.asylumlawdatabase.eu/en/content/european-court-human-rights-khlaifia-and-others-v-italy-no-
1648312-articles-3-5-and-13-echr> accessed 7 August 2018
6 'The Grand Chamber ‘S Ruling In Khlaifia And Others V Italy: One Step Forward, One Step Back?' (Strasbourg
Observers, 2018)
7

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As per Article 32, two circumstances are there where this rule of Dubio Mitius is applied and
relevant. The first one is, this principle is used to ensure the interpretation depends on Article 31
of the VCLT, to make stronger the analysis of the explainer. The next one is, used to choose the
explainer if the rule under Article 31 will guide to obscure and unclear conditions. It should be
noted that explainer must not apply the rule of Dubio Mitius so entry of “Sound recording
distribution services” remains unclear and uncertain after the evaluation of Article 31 and 32of
Vienna convention.7 The principle is not relevant to WTO Dispute settlement and its application
in same. The principle of Dubio Mitius is not applicable by the Appellate Body due to lack of
principle status in VCLT but due its irrelevancy in the case.
Evolutionary interpretation of treaties: After the establishment of Vienna Convention of the
Law of Treaties the issue has becomes disguised. The main objective of the treaty interpretation
is international law commissioner gives effect to intention of parties as fairly and fully as
possible. The reason of the parties’ intention in treaty interpretation can be considered on
particular interest in related to the evolutionary treaties interpretation. There is no particular
definition of the evolutionary interpretation, the result of treaty meaning is liable to change over
time, without the particular intervention of person to modify and amend the treaty terms 8It is
considered that tribunals and international court means, at high rate, to the applicability of treaty
interpretation as particular reference with the parties intention. In 14, the Railway land
Arbitration tribunal determined that, in application of principles mentioned in Articles 31 and 32
of the VCLT, and it is mandatory not to lose view of the object. It is identify the basic intention
of parties at the time when treaty was evaluated with effect and meaning. As similar to 13 Report
of the International law Commission the objective parties takes major stage in regards with
evolutionary treaties interpretation. The thesis of the evolutionary interpretation of treaties is
explained in accurate understanding of parties’ intention. Author Eirik Biorge tries sole other
words with intention, and he believed that it is the best method to explain about the evolutionary
interpretation of treaties. As per the views of author, it is closely connected to the basic will of
parties. The evolutionary treaties interpretation is not a different method of interpretation. It is
7 O'Keefe R, 'Remedies In International Human Rights Law. By Dinah Shelton. Oxford: Oxford University Press,
1999. 387 Pp. 80' (2013) 73 British Yearbook of International Law
8 Helmersen S, Evolutive Treaty Interpretation: Legality, Semantics And Distinctions (2013).
8

only the result of accurate application of usual interpretation method to create the parties
intention (Shelton, 2015). Two misgivings are arrived in this connection are, first it can be
lawfully interjected and except mentioned in article 31
(4) the common rule of interpretation not mentioned particular intention at all. It is correct, but
the common principle of interpretation fails to describe, from the means of interpretation, the
parties’ intention. Secondly, it is further understood that treaty interpretation is considered the
establishment of parties’ intention which is criticised for this question. After all, the treaty
interpretation is related to creation of parties’ intention, and question here is, how one can go
development of intention? It is also discussed in the similar case of West Rand Central Gold
Mining Company v/ s R, court held that, international customs are required to be follow in every
business dealing at global level, with the consent of authorities and states 9
It is mentioning as per the context of leading Public International lawyers differ as to how the
issue of parties intention are conceptualize in treaty interpretation. The parties intention is seen
as being not more than the meaning of interpretation as same as to the purpose and object o
construct the issue of treat. There is no restriction to be placed on this right instead of mentioned
under law specifically that is mandatory in democratic society as per interest of public order and
national security and for the safety of human rights and their freedom. In the case of Paqueta v/s
Habanna, court held that International law of UK is considered as own law and it is also
determined that international law is a portion of country law and must be regulated by Justice
Court 10
International human rights are treaties and some other documents at international level
related to the international human rights law and the human rights protection in usual manner. It
can be divided into two kinds, declarations followed by United Nations General Assembly that
is not binding legally and Conventions that are legally binding instruments comes under in
international law, international declarations and treaties can receive the position of customary
law at international level 11International law protects human rights by adopting the duties and
9 Triantafilou E, 'Contemporaneity And Evolutive Interpretation Under The Vienna Convention On The Law Of
Treaties' (2016) 32 ICSID Review
10 Elsig, M., Hoekman, B. and Pauwelyn, J., 'Thinking About The Performance Of The World Trade Organization: A
Discussion Across Disciplines' [2016] SSRN Electronic Journal.
11 Hathaway O, 'Do Human Rights Treaties Make A Difference?' (2017) 111 The Yale Law Journal.
9

obligations to protect, to respect of human and protect their rights. The responsibility of
protection considered states to guard and keep groups and individual against human rights
abuses.
10

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Conclusion
It is concluded from the whole essay report that describes the rules and principles of Vienna
Convention on the law of treaties makes the primary rule of treaty interpretation. The basic
fundamental principles are a treaty can be interpreted in fair manner as per the general meaning
in the manner of treaty with purpose and objects. It is analysed from the case of and court opined
that applicants are deprived from the liberty and there is no legal rule in national law for
detention. It is the responsibility of outside country and authority to safety of detainees and
respect of human rights and dignity.
11

References
 Elsig, M., Hoekman, B. and Pauwelyn, J., 'Thinking About The Performance Of The
World Trade Organization: A Discussion Across Disciplines' [2016] SSRN Electronic
Journal.
 'European Court Of Human Rights: Khlaifia And Others V. Italy (No. 16483/12)
[Articles 3, 5 And 13 ECHR, Article 4 Protocol No. 4] | European Database Of Asylum
Law' (Asylumlawdatabase.eu, 2018)
<http://www.asylumlawdatabase.eu/en/content/european-court-human-rights-khlaifia-
and-others-v-italy-no-1648312-articles-3-5-and-13-echr> accessed 7 August 2018
 Gordon KJ Pohl, 'Investment Treaties Over Time - Treaty Practice And Interpretation In
A Changing World' [2015] SSRN Electronic Journal
 Hathaway O, 'Do Human Rights Treaties Make A Difference?' (2017) 111 The Yale Law
Journal.
 Helfer L, 'Introduction To Symposium On Treaty Exit At The Interface Of Domestic And
International Law' (2017) 111 AJIL Unbound
 Helmersen S, Evolutive Treaty Interpretation: Legality, Semantics And Distinctions
(2013).
 Law Teacher, 'Interpretation Of Treaties, Principles And Practice' (The Law Teacher,
2018) <https://www.lawteacher.net/free-law-essays/international-law/interpretation-of-
treaties-principles-law-essays.php.
https://www.lawteacher.net/free-law-essays/international-law/interpretation-of-treaties-
principles-law-essays.php> accessed 7 August 2018
 Murphy, S.D., ‘The Utility and Limits of Canons of Construction in Public International
Law’ (2018) 32 ICSID Review.
 O'Keefe R, 'Remedies In International Human Rights Law. By Dinah Shelton. Oxford:
Oxford University Press, 1999. 387 Pp. 80' (2013) 73 British Yearbook of International
Law
 'The Grand Chamber ‘S Ruling In Khlaifia And Others V Italy: One Step Forward, One
Step Back?' (Strasbourg Observers, 2018)
12

<https://strasbourgobservers.com/2017/01/10/the-grand-chambers-ruling-in-khlaifia-and-
others-v-italy-one-step-forward-one-step-back/> accessed 7 August 2018
 Triantafilou E, 'Contemporaneity And Evolutive Interpretation Under The Vienna
Convention On The Law Of Treaties' (2016) 32 ICSID Review
13

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Interpretation of Treaties: A Critical Analysis of the Khlaifia and Others v. Italy Case

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