The Effect of the Passage of Time on the Interpretation of Treaties ...

EFFECT OF TIME ON THE INTERPRETATION OF TREATIES 211
century. But this conclusion can presumably only be reached with confidence once
<strong>the</strong> contemporaneous meaning <strong>of</strong> <strong>the</strong> term has been established. It is thus difficult to
disagree with Judge Skotnikov’s separate opinion that ‘<strong>the</strong> Court should have [more
meticulously] examined <strong>the</strong> intentions <strong>of</strong> <strong>the</strong> Parties at <strong>the</strong> time <strong>of</strong> <strong>the</strong> conclusion
<strong>of</strong> <strong>the</strong> Treaty’. 55
In a similar vein, relying on <strong>the</strong> evidence submitted by <strong>the</strong> parties, Judge ad hoc
Guillaume maintained that it was doubtful at <strong>the</strong> time <strong>of</strong> <strong>the</strong> conclusion <strong>of</strong> <strong>the</strong>
Treaty <strong>of</strong> Limits whe<strong>the</strong>r navigation for commercial purposes on <strong>the</strong> San Juan River
was limited to trade in goods, since, in <strong>the</strong> mid-nineteenth century, Lake Nicaragua
and <strong>the</strong> San Juan River were used to transport emigrants from <strong>the</strong> coast and from
<strong>the</strong> east coast <strong>of</strong> <strong>the</strong> United States to California so as to avoid <strong>the</strong> trip around South
America. Moreover, <strong>the</strong> inter-oceanic canal, whose construction was contemplated
in <strong>the</strong> Treaty <strong>of</strong> Limits, was intended to facilitate commercial transport <strong>of</strong> both
passengers and goods – as evidenced by <strong>the</strong> FCN treaties entered into in 1859
and 1860 by Nicaragua with France and <strong>the</strong> United Kingdom, respectively. Judge
ad hoc Guillaume’s conclusion was clear: ‘when <strong>the</strong> authors <strong>of</strong> <strong>the</strong> 1858 Treaty
referred to navigation for commercial purposes, <strong>the</strong>y intended to cover commercial
transportation <strong>of</strong> both persons and goods.’ 56
Subject to <strong>the</strong> fulfillment <strong>of</strong> <strong>the</strong> same condition <strong>of</strong> commercial activity, he
added that <strong>the</strong> transport <strong>of</strong> passengers must today also include tourists. 57 Judge
ad hoc Guillaume appears to suggest that, strictly speaking, <strong>the</strong>re was no need for an
evolutionary interpretation in this case; <strong>the</strong> contemporaneous meaning <strong>of</strong> <strong>the</strong> term
comercio had not evolved over time, at least not in a manner relevant to <strong>the</strong> settlement
<strong>of</strong> <strong>the</strong> dispute. <strong>The</strong> Court evidently disagreed and preferred instead to rely on
what appears to be a ra<strong>the</strong>r perfunctory test to determine <strong>the</strong> evolutionary character
<strong>of</strong> a treaty provision. Let us now turn to <strong>the</strong> elements <strong>of</strong> this interpretative
presumption and <strong>the</strong> real difficulties that may arise from its application by <strong>the</strong>
Court.
3. DETERMINING INTENT THROUGH EVOLUTIONARY
INTERPRETATION
Before continuing our assessment <strong>of</strong> <strong>the</strong> present case, a few general observations
about <strong>the</strong> treatment <strong>of</strong> <strong>the</strong> principle <strong>of</strong> evolutionary interpretation in practice are
warranted. <strong>The</strong> ILC’s provisional adoption on first reading <strong>of</strong> <strong>the</strong> principle <strong>of</strong> contemporaneity
in what became Article 31 VCLT provoked considerable debate among
its members. 58 On second reading, <strong>the</strong> ILC concluded that a strict principle <strong>of</strong> contemporaneity
‘covered only partially <strong>the</strong> question <strong>of</strong> <strong>the</strong> so-called inter-temporal
law’. 59 In essence, <strong>the</strong> relevant provision had ‘failed to deal with <strong>the</strong> problem <strong>of</strong> <strong>the</strong>
effect <strong>of</strong> an evolution <strong>of</strong> <strong>the</strong> law on <strong>the</strong> interpretation <strong>of</strong> legal terms in a treaty and
55 Judgment, supra note 5, para. 4 (Judge Skotnikov, Separate Opinion).
56 Ibid., para. 16 (Judge ad hoc Guillaume, Declaration).
57 Ibid. See also ibid., para. 10 (Judge Skotnikov, Separate Opinion).
58 For <strong>the</strong> debate on first reading, see 1964 YILC, Vol. I, at 33–9.
59 YILC, supra note 18, at 222, para. 16.