Evolutive Interpretation by The WTO Adjudicator: Gabrielle Marceau

Journal of International Economic Law, 2018, 21, 791–813
doi: 10.1093/jiel/jgy042
Advance Access Publication Date: 29 November 2018
Article
Evolutive Interpretation by the WTO Adjudicator
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Gabrielle Marceau*
ABSTRACT
Several types of changes can take place between the conclusion of a treaty and when its
provisions call for interpretation, e.g. changes in the political, social, historical or legal
context; technological changes; linguistic changes; or changes in the law. Traditionally,
interpreters refused to consider changes that may have occurred since the treaty’s
conclusion. Today, many argue that it is more legitimate for a treaty interpreter to take
account of these changes and use an ‘evolutionary’ or ‘dynamic’ interpretation. The issue
of changes is particularly relevant in the context of the World Trade Organization (WTO)
Treaty, because it combines long-standing provisions with more recent ones, and because
international trade has evolved greatly, notably with electronic trade (e-commerce) and
new means of distribution that did not exist when the WTO was concluded. The different
types of changes discussed in this article may be grouped into four non-mutually exclusive
types of situations, which will be examined through the prism of the interpretation process
set out in Articles 31-33 of the Vienna Convention on the Law of Treaties (VCLT). While
different types of evolutionary interpretations can be considered under standard rules of
interpretation in public international law, the use of the term ‘evolutionary interpretation’
allows for a more global understanding of the phenomenon, and might have, at the very
least, a symbolic value.
INTRODUCTION
Several types of changes can take place between the date of the conclusion of a treaty
and the date when its provisions call for interpretation. They may include changes
in the political, social, or historical context; technological changes that render certain
things feasible that were not so (and could not have been) upon the treaty’s conclusion;
linguistic changes in the ordinary or special meaning of terms; or changes in the law that
is either applicable or should be considered—to name but a few.1
Under the principle of intertemporality, however, when determining the reference
period to interpret the terms of treaties between States, traditional doctrine has always
∗ Professor, Law Faculty, UNIGE. Email:(gabrielle.marceau@unige.ch) and Senior Counsellor, Legal Affairs,
WTO. Email:(gabrielle.marceau@wto.org). A first publication by the same author on evolutionary interpre-
tation was published in French in the RGDI, 2018, vol 1. This improved version is based on new and additional
research.
1 On this subject, see the inaugural conference given by Alain Pellet to The Hague Academy in 2007: Alain
Pellet, ‘L’adaptation du droit international aux besoins changeants de la société internationale’ in Collected
Courses of The Hague Academy of International Law 329 (2007), Martinus Nijhoff, Leiden, 2008, p. 17 onward
[Pellet].
© The Author(s) 2018. Published by Oxford University Press. All rights reserved.
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• 791
792 • Evolutive Interpretation by the WTO Adjudicator: Sophism or Necessity?
viewed the date of the treaty’s conclusion as the relevant date.2 Sir Gerald Fitzmaurice
wrote in 1957:
The terms of a treaty must be interpreted according to the meaning which they possessed,
or which would have been attributed to them, and in the light of current linguistic usage,
at the time when the treaty was originally concluded.3

A treaty interpreter following this approach would refuse to consider the changes
that may have occurred since the treaty’s conclusion. Others argue that it would be more
legitimate for a treaty interpreter to take account of these changes.
In that context, certain international tribunals have referred to ‘evolutive’ or ‘evo-
lutionary’ interpretation. For instance, World Trade Organization (WTO) Appellate
Body (AB) used the concept of ‘evolutive interpretation’ as opposed to ‘static’ interpre-
tation in the US – Shrimp AB Report.4 International adjudicatory bodies also speak of
‘dynamic’5 interpretation, allowing integration of contemporary elements when exam-
ining international treaties, some of which had been drafted decades previously. Using
this ‘dynamic’, ‘evolutive’, or ‘evolutionary’ interpretive method avoids locking the scope
of the convention into the past, offering a more contemporary reading that uses new
concepts, facts, or rights.
The issue of ‘changes’ is particularly relevant in the context of the WTO Treaty,
because it combines long-standing provisions with other, more recent ones, adopted
simultaneously. The whole forms a ‘single undertaking’, a single agreement, despite
several apparent temporal and circumstantial incongruities. International trade has
also evolved greatly, notably to include electronic trade (e-commerce) that did not
exist when the WTO Agreement was concluded. Methods of access and restrictions
to trade have, in part, taken forms that were inconceivable upon the WTO Treaty’s
conclusion. Non-commercial values that States defend in their international relations
have also changed greatly. Moreover, WTO Members have adopted a series of decisions
implementing treaty provisions, and international law itself (external to the law of the
WTO, but pertinent in interpreting its place and role in public international law) has
evolved since the WTO Treaty’s conclusion.
This article will question how international law in general, and WTO law specifically,
have dealt with these changes. More particularly, with a view to understanding the
meaning and scope of the expression ‘evolutive interpretation’ and whether it adds to
2 The principle of intertemporality prescribes interpreting treaties based on conceptions that are prevalent at
the moment of the conclusion of such treaties. The principle of intertemporality as Huber formulated it is as
follows: ‘a juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in
force at the time which a dispute in regard to it arises or falls to be settled.’ Isla de Palmas Case (Netherlands v
United States), 2 Reports of International Arbitration Awards 831 at p. 845.
3 Sir Gerald Fitzmaurice, ‘The Law and Procedure of the International Court of Justice 1951–4: Treaty
Interpretation and Other Treaty Points’ (1957) 33 BYBIL 203 at p. 212.
4 WTO Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products,
WT/DS58/AB/R, adopted 6 November 1998, para 130 [‘US – Shrimp’].
5 For a list of judgements referring to one or the other of these terms, see Panos Merkouris ‘(Inter)Temporal
Considerations in the Interpretive Process of the VCLT: Do Treaties Endure, Perdure or Exdure?’ (2014) 45
NYIL 121 at p. 131 [Merkouris, (Inter)temporal].
Evolutive Interpretation by the WTO Adjudicator: Sophism or Necessity? • 793
standard rules of interpretation, the present study attempts to determine how the tra-
ditionally accepted rules of interpretation—including, notably, the Vienna Convention
on the Law of Treaties (VCLT) rules—consider and deal with different types of changes
taking place between the conclusion of the treaty and its interpretation. Through the
identification of these different types or categories of changes, it is hoped to bring a

more structured understanding of evolutive interpretation, in particular, in the context
of the WTO.
The different types of changes discussed in this article may be grouped into four
types of situations, or categories of changes, which can be examined through the prism
of the steps or sequential items of the interpretation process in VCLT Articles 31–33.
For each of these situations, the relevant rules of interpretation will be discussed to
determine whether and how they can take account of changes that occurred between
the conclusion of the treaty and the day of its interpretation. The first type or category
of changes concerns linguistic changes for the ordinary or special meaning of terms.
The second type of change looks at the changes that occur in the broad context. The
third type of situation concerns physical or technical transformations and evolutions that
warrant an evolutive reading due to the object and purpose of the treaty. Finally, the
fourth type of change comes from changes to other relevant and related treaties or
aspects of international law.
However, these four types of changes or four categories are not mutually exclusive.
On the contrary, as can be seen throughout this article, a situation may include changes
that can be considered or qualified differently, and which may call for the simultaneous
application of several rules of interpretation in international law. Indeed, interpretation
of treaties and the sequential stages of VCLT Articles 31–33 are known to compose a
holistic process.6
This article first offers a brief overview of the literature on this topic. This will
demonstrate how divided the writings on the topic are, and provide evidence that some
sort of classification would be a useful tool. It will then turn to the VCLT (a decisive
component in the rules and principles of treaty interpretation) and its history to shed
light on the subject, before looking at the relevant practice of certain international
tribunals. Following this, the article will discuss the WTO jurisprudence on some of
these changes, before offering more general concluding comments on the subject.
I. EVOLUTIVE INTERPRETATION AND ITS DOCTRINAL APPROACHES

Authors have attempted to define the concept of evolutive, evolutionary, or dynamic
interpretation. The approaches set out in this article are given varying levels of impor-
tance. It is nevertheless necessary to note that disagreements exist on several aspects of
evolutive interpretation. Inevitably, there are different perspectives in the value ascribed
to the negotiators’ intentions, given the very text of the treaty. Some commentators
consider that the basis of evolutive interpretation can be derived only from the intention
of the treaty’s negotiators, others add the reference to the object and purpose of the
6 On this subject, see WTO Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of Certain
Dairy Products, WT/DS98/AB/R, adopted 12 January 2000, para 81, nn 44.
treaty as justification for an evolutionary interpretation. It seems that still other types
of changes (evolution of the social context and changes to applicable law) are derived
from an application of the VCLT rules. All accept that domestic and international law
may evolve, but one might wonder if the difference between the evolution of a single
norm and that of the whole legal system would help provide an answer.

Christian Djeffal views evolutive interpretation as a means to revise an already
existing interpretation. He uncovers several approaches, notably based on the object
and purpose of the treaty or on the generic terms it uses, emphasizing the absence
of consensus on the topic.7 He suggests a method by which the different arguments
for a static interpretation (or applying the principle of intertemporality) and for an
evolutive interpretation are balanced against each other to determine the result. He
nonetheless finds all these possibilities within the VCLT.8 Luigi Crema also follows this
approach, identifying different factors of evolution—whether changes in the meaning
of a term, systemic changes, or new considerations linked to the object and purpose of
the treaty—without any link to the intention of the parties.9
Pierre-Marie Dupuy sums up the object of evolutive interpretation generally: ‘a judge
is often requested to redefine the meaning of a treaty without altering its nature. Such
a manner of interpreting treaties, sometimes called an evolutionary interpretation, is
no mean feat. In many cases the very survival of the agreement and its applicability to
present-day concerns are at stake’.10 This idea of the survival of the treaty is also at the
heart of Panos Merkouris’ vision, which speaks of treaties as ‘“living instruments” that
need to evolve in order to survive’.11
Other authors propose a definition of the term, but are more conservative in the
changes that they consider the term encompasses. Eirik Bjorge, for example, inspired by
the jurisprudence of the International Court of Justice (ICJ), emphasizes the intention
of the parties.12 He concludes that evolutive interpretation is not so much a rule of
interpretation as ‘the result of a proper application of the usual means of interpretation,
as a means by which to establish the intention of the parties’.13 For him, the parties would
therefore have wanted the changes that this evolutive interpretation covers, during the
conclusion of the treaty.14
7 ‘There was no agreement at the outset and no agreement has been reached ever since.’ Christian Djeffal,
Static and Evolutive Treaty Interpretation (Cambridge: Cambridge University Press, 2016) at pp. 348–349
[Djeffal].
8 Djeffal, supra note 7, at p. 353.
9 Luigi Crema, ‘Subsequent Agreement and Subsequent Practice within and outside the Vienna Convention’
in Georg Nolte (ed.), Treaties and Subsequent Practice (Oxford: Oxford University Press, 2013) 13 at p. 22.
10 Pierre-Marie Dupuy, ‘Evolutionary Interpretation of Treaties: Between Memory and Prophecy’ in Enzo
Canizzaro (ed.), The Law of Treaties Beyond the Vienna Convention (Oxford: Oxford University Press, 2011)
123 at p. 125.
11 Merkouris, (Inter)temporal, supra note 5, at p. 131.
12 Eirik Bjorge, The Evolutionary Interpretation of Treaties (Oxford: Oxford University Press, 2014) [Bjorge].
13 Bjorge, supra note 12, at p. 2.
14 International Law Commission, Report of the International Law Commission: Sixty-eighth Session (2 May–
10 June and 4 July–12 August 2016), Doc UN A/71/10 (2016) at pp. 182–83 [International Law Commis-
sion, Report of the 68th Session].
Alan Boyle also examines the idea of intention, and briefly looks at the role of
VCLT Article 31(3)(c), as does Paolo Palchetti.15 Similarly, Theodore Georgopoulos
also emphasizes the parties’ intention at the treaty’s conclusion and suggests that
any subsequent evolutive interpretation would have to draw on this. Even the broad
definition he proposes depends on the evolution of law, in the first instance, and not

on social evolution in general.16 The same is true for Brigitte Stern, who criticizes the
dissenting opinion of a judge, as it does not follow the parties’ intention. She makes
a distinction between the generic terms (which will evolve), and specific terms (to
be interpreted according to the meaning in force at the treaty’s conclusion).17 Julian
Wyatt also defends the idea of primacy of the intention. However, he argues that the
VCLT is unhelpful in determining whether a dynamic or static interpretation should
be adopted.18 Alain Pellet generally believes that treaties should be interpreted by taking
into account changes that take place in society. 19
Referring to evolutive interpretation, Bruno Simma criticizes the ICJ, by suggesting
that it should not simply content itself with Article 31(3)(c), but should also rely on the
ordinary meaning of the terms.20
Finally, James Crawford, who may be the most sceptical expert, underlines:
We seem to have a Court that is evolutionary when it is not really necessary but not
evolutionary when the text invites such an interpretation.21
The above survey of doctrinal sources demonstrates that the concept of evolutive
interpretation is a priori not clear and there is no consensus on whether and how to
take into account various types of changes that occur between the conclusion of the
treaty and the date of its interpretation.
II. EVOLUTIVE INTERPRETATION IN THE VCLT NEGOTIATIONS

The issue of temporality in treaty interpretation emerged in a sporadic manner during
the two decades preceding the conclusion of the VCLT—without, however, being
addressed directly. First, the Institute of International Law attempted to propose rules
for interpreting treaties over the course of three sessions. Notably, the importance to be
15 Alan Boyle, ‘Further Development of the 1982 Law of the Sea Convention: Mechanisms for Change’ (2005)
53 ICLQ 563 at pp. 567–68; Alan Boyle and Christine Chinkin, The Making of International Law (Oxford:
Oxford University Press, 2007) p. 244; Paulo Palchetti, ‘Interpreting “Generic Terms”: Between Respect for
the Parties’ Original Intention and the Identification of the Ordinary Meaning’ in Nerina Boschiero, Tullio
Scovazzj, Cesare Pitea, and Chiara Ragni (eds), International Courts and the Development of International Law:
Essays in Honour of Tullio Treves (The Hague: Springer, 2013) 91 at pp. 91–2.
16 Theodore Georgopoulos, ‘Le droit intertemporel et les dispositions conventionnelles évolutives’ (2004) 108
RGDIP 123 at p. 130.
17 Brigitte Stern, 20 ans de jurisprudence de la Cour international de Justice: 1975–1995, (Martinus Nijhoff: The
Hague, 1998) at pp. 80–1.
18 Julian Wyatt, An Original or Modern-Day Meaning for Treaty Terms? The Problem of Intertemporal Linguistics
in the Case Law of International Courts and Tribunals, Thesis, University of Geneva, 2017 at 846–7.
19 Pellet, supra note 1.
20 Bruno Simma, ‘Miscellaneous Thoughts on Subsequent Agreements and Practice’ in Georg Nolte (ed.),
Treaties and Subsequent Practice (Oxford: Oxford University Press, 2013) 46 at p. 48 [Simma].
21 Bjorge, supra note 12, at p. v.
accorded to the parties’ intention in the process of interpretation was debated at length.
However, this was mainly understood and discussed with respect to intention at the
time of the treaty’s conclusion.22
Taking up the torch, the International Law Commission (ILC) decided to codify
the law of treaties.23 Within this framework, a draft international convention was pro-

gressively drawn up. Over the course of preliminary discussions, successive rappor-
teurs raised the question of the relevant moment for interpretation—the question of
intertemporality.
Initially, in 1964 the reference to the ‘rules of general international law in force at
the time of its conclusion’, was situated within the first paragraph of what now became
Article 31, and so qualified the entirety of the interpretation in good faith principle and
the ‘ordinary meaning’ of the terms.
General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary

meaning to be given to each term:
(a) In the context of the treaty and in the light of its objects and purposes; and
(b) In the light of the rules of general international law in force at the time
of its conclusion24
However, in the 1966 draft articles, the reference to ‘in force at the time of its conclusion’
was removed by Rapporteur Waldock, ‘leaving the application of the intertemporal law
to be implied’25 .
In the end, Article 31 was adopted without any reference to intertemporality. The
Commission therefore avoided this issue and the general rule of interpretation of Article
31(1) became the following:
A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in the light of its object and purpose.
22 See Institute of International Law, 1950 at pp. 366–460; Institute of International Law Yearbook of the Institute
of International Law, Sienna Session, Vol. 44, Book I, Institute of International Law, 1952 at pp. 297–223;
Institute of International Law, Yearbook of the Institute of International Law, Sienna Session Vol. 44 Book II,
Institute of International Law, 1952 at pp. 359–406; Institute of International Law, Yearbook of the Institute of
International Law, Aix-en-Provence Session, Vol. 45, Book I, Institute of International Law, 1954 at pp. 225–27;
Institute of International Law, Yearbook of the Institute of International Law, Grenada Session, Vol. 46, Institute
of International Law, 1956 at pp. 317–59.
23 See the decision in International Law Commission, ‘Report of the International Law Commission on the
work of its first Session’ in Yearbook of the International Law Commission 1949, Vol. 1 at p. 281 (Doc UN
A/CN.4/13).
24 Article 69, ‘Report of the International Law Commission on the Work of its Sixteenth Session’ (Doc UN
A/5809) in the Yearbook of the International Law Commission 1964, Vol. 2, New York, UN, 1964 at p. 199 (Doc
UN A/CN.4/SER.A/1964/Add.1) [emphasis ours]. This reference to the ‘relevant rules of international law
applicable’ is now included in the third paragraph of Article 31(3).
25 International Law Commission, Yearbook of the International Law Commission, Vol. 2, New York, UN, 1966
at p. 97 (Doc UN A/CN.4/Ser.A/1966/Add.1).
The search for the ‘ordinary meaning to be given to the terms of the treaty in their
context’ often begins with consulting current language dictionaries, without particu-
larly relying on the history of the language.26 From that point onward, the adjudicators
necessarily focus on the contemporary semantics of the words27 , leading inevitably to
an evolution in the interpretation of the term.28 In this way, an emphasis placed on

the treaty’s terms is not opposed to a dynamic interpretation, but on the contrary,
participates in it. It is important to note that the term ‘context’ in the first sentence of
Article 31, is linked to the ‘ordinary meaning’ of the terms. Therefore, it is useful to note
the conceptual proximity between the text and the context. The evolution of language
may have an impact on the interpretation of the terms of the treaty. On this topic, Judge
Spender offered the following thoughts:
Words communicate their meaning from the circumstances in which they are used. In
a written instrument their meaning primarily is to be ascertained from the context, the
setting, in which they are found.29
It is generally argued that the ‘context’ primarily refers to the legal context.30 This would
explain how some authors consider that only the ‘context’ of the term at the time of
the conclusion of the treaty, and not that contemporary to its interpretation31 , is valid.
26 David Pavot, ‘The Use of Dictionary by the WTO Appellate Body at the WTO: Beyond the Search of
Ordinary Meaning’ (2013) 4:1 Journal of International Dispute Settlement 29. See also Competence of the ILO
in regard to International Regulation of the Conditions of the Labour of Persons Employed in Agriculture, Advisory
opinion, PCIJ (Ser. B) No. 2 at pp. 33–4.
27 Umberto Eco evokes the contemporaneity of the semantics of dictionaries as follows: ‘je persiste à penser que,
à l’intérieur des limites d’une certaine langue, il existe un sens littéral des items lexicaux, celui que les dictionnaires
enregistrent en premier, celui que l’homme de la rue citerait en premier si on lui demandait le sens d’un mot donné’,
Umberto ECO, Les limites de l’interprétation, Paris, Grasset, 1992, introduction. See also Andrea Binachi,
‘Textual Interpretation and (International) Law Reading: The Myth of (In)determinacy and the Genealogy
of Meaning’ in Pieter Bekker (ed.), Making Transnational Law Work in the Global Economy—Essays in Honour
of Detlev Vagts (Cambridge: Cambridge University Press, 2010) 34 at pp. 39–40.
28 This perspective is also advanced in Manfred Elsig and Joost Pauwelyn, ‘The Politics of Treaty Interpretation:
Variations and Explanations Across International Tribunals’ in Jeffrey Dunoff and Marka Pollack (eds), Inter-
disciplinary Perspectives on International Law and International Relations (Cambridge: Cambridge University
Press, 2013) 445 at p. 451.
29 Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter), Advisory opinion, Separate
Opinion of Judge Sir Percy Spender, ICJ Reports 1962, p. 182 at para 184.
30 Oliver Dörr, ‘Article 31: General Rule of Interpretation’ in Oliver Dörr and Kirsten Schmalenbach (eds),
Vienna Convention on the Law of Treaties: A Commentary (Berlin: Springer, 2012) 521 at p. 550; Mark E.
Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Martinus Nijhoff, 2009)
p. 427. For him, only Article 32 would exceptionally permit overlooking the legal context to embrace the
non-legal context of the negotiation of the treaty (travaux préparatoires). Other authors, including this one,
defend the opinion that the context must be understood in a broader sense. The proposed interpretation
would not make reference to the legal context, but to the more sociological one linked to the evolution of
language. It is thus a broader context than the legal context of VCLT Article 31(2), linked to the internal
system of the treaty under examination, permitting to take into account the external context linked to the
‘ordinary meaning of the words’.
31 See Peter Mavroidis, ‘Looking for Mr. and Mrs. Right: Ten Years of Appellate Body at the WTO’ in
Giorgio Sacerdoti, Alan Yanovich, and Jan Bohanes (eds), The WTO at Ten: The Contribution of the WTO
Dispute Settlement System (Cambridge: Cambridge University Press, 2006) 348 at pp. 357–58; Isabelle Van
Damme, Treaty Interpretation by the WTO Appellate Body, (Oxford: Oxford University Press, 2009) at p. 216
[Van Damme].
However, a reading of the ‘ordinary meaning of the terms in their context’ would not
exclude consideration of a more extended, non-legal context; integrating the sematic
evolution of the relevant terms into the context. In addition, the scope of the ‘context’
in Article 31(2) CVLT, when it states: ‘The context shall comprise, in addition to the
text, including its preamble and annexes. . .’, is clearly not limitative: ‘the context shall

comprise’ but is not ‘limited to’.
Although the VCLT does not directly regulate the temporal elements in which
interpretation should take place, certain legal events following the treaty’s conclusion
are explicitly mentioned and are to be taken into account together with the original
treaty’s context:
There shall be taken into account, together with the context:
(a) Any subsequent agreement between the parties regarding the interpretation
of the treaty or the application of its provisions;
(b) Any subsequent practice in the application of the treaty which establishes the
agreement of the parties regarding its interpretation;
(c) Any relevant rules of international law applicable in the relations between the
parties.
Such subsequent agreements or practices confirm the relevance of the possible addi-
tions to the original treaty. Article 31, while including three distinct sub-paragraphs,
contains two major categories.
First, sub-paragraphs (3)(a) and (b) of Article 31 envisage the situation in which
a subsequent agreement or practice modifies the interpretation of the initial treaty.
This approach effectively permits the taking into account of changes to the initial treaty
desired by the parties; but their application is restrained. On the one hand, a subsequent
agreement or practice requires renewed State consent. The parties must, in one way
or another, demonstrate their wish for evolution to take place after the first treaty’s
conclusion. On the other hand, these two paragraphs refer to acts within the boundaries
of the original treaty. Consequently, an explicit proximity must exist between the first
treaty and the subsequent acts, whether arising from practice or from an agreement.32
It should be noted that these subsequent agreements and practices also concern
secondary law originating from committees and advisory boards.33
The particularity of sub-paragraph 3(c) of Article 31, in comparison with sub-
paragraphs (3)(a) and (3)(b) of Article 31 is highlighted by Georg Nolte in the ILC’s
32 International Law Commission, First report on subsequent agreements and subsequent practice in relation to
treaty interpretation, Doc UN A/CN.4/660 (2013) at para 76–8, 111–15 [International Law Commission,
First Report on Agreements]; International Law Commission, Second report on subsequent agreements and sub-
sequent practice in relation to treaty interpretation, Doc UN A/CN.4/671 (2014) at para 3–19 [International
Law Commission, Second Report on Agreements].
33 See International Law Commission, Report of the International Law Commission: Sixty-seventh Session
(4 May–5 June and 6 July–7 August 2015), Doc UN A/CN.4/683 (2015) at p. 16 [International Law
Commission, Report of the 67th Session], see also infra Section IV.C.
extensive study on subsequent agreements and practice.34 He emphasizes that sub-

paragraphs (a) and (b) very specifically concern agreements or practice ‘regarding the
interpretation of the treaty’, while sub-paragraph (c) touches on the systemic integration
of international law.35 This was also the vision adopted by the ICJ in Denmark v
Norway36 , which excluded the application of Articles 31(3)(a) and 31(3)(b), for

lack of a sufficiently explicit reference to the original treaty in the subsequent acts.37
Therefore, the new agreement or the new practice must ‘relate . . . sufficiently’38 to the
previous treaty. Article 31(3)(c) appears to envisage a systemic integration of interna-
tional law, broader than the rigid fraternity of the practice and agreements envisaged
under sub-paragraphs (a) and (b). Furthermore, the term ‘rules’ in Article 31(3)(c)
seems broader in scope than the terms ‘agreement’ (Article 31(3)(a)) and ‘practice’
(Article 31(3)(b)).39
The dynamic dimension of international law seems to have been recognized in the
terms of sub-paragraph (3)(c) of VCLT Article 31, which prescribes that, in addition
to the context, interpretation must also consider ‘Any relevant rules of international law
applicable in the relations between the parties’. On this topic, Sinclair argues:
There is some evidence that the evolution and development of international law may
exercise a decisive influence on the meaning to be given to expressions incorporated in
a treaty.40
Indeed, it seems that the birth of a ‘relevant rule of international law’ subsequent to the
first treaty’s conclusion would permit modification of the scope of obligations that it
initially contained.41
34 For the most recent version of the draft conclusions, see International Law Commission, Report of the
International Law Commission: Seventieth Session (30 April–1 June and 2 July–10 August 2018), Doc UN A/
73/10 (2018) at p. 13 [International Law Commission, Report of the 70th Session].
35 ‘It is also not always easy to distinguish subsequent agreements and subsequent practice from subsequent
“other relevant rules of international law applicable in the relations between the parties” (Article 31 (3)(c)).
It appears that the most important distinguishing factor is whether an agreement is made “regarding the
interpretation” of a treaty.’ International Law Commission, First Report on Agreements, supra note 32, at
para 115.
36 Case concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v Norway),
Judgement, ICJ Reports 1993, p. 38.
37 ‘No reference whatever was made in the 1979 Agreement to the existence or contents of the 1965 Agreement.
The Court considers that if the intention of the 1965 Agreement had been to commit the Parties to the
median line in all ensuing shelf delimitations, it would have been referred to in the 1979 Agreement.’ Ibid, at
para 28.
38 International Law Commission, First Report on Agreements, supra note 32, at para 77.
39 Howse goes so far here as to admit the use of soft law instruments in the context of 31(3)(c), Robert Howse,
‘The Use and Abuse of Other “Relevant Rules of International Law” in Treaty Interpretation: Insights from
WTO Trade/Environment Litigation’ (2007) Institute of International Law and Justice Working Paper 1 at
p. 40, see also note 111.
40 Ian Sinclair, The Vienna Convention on the Law of Treaties, 2nd ed. (Manchester: Manchester University Press)
1984 at p. 139.
41 See Island of Palmas (United States v Netherlands) (1928), 2 RSA 845 (Permanent Court of Arbitration);
Panos Merkouris, Article 31(3)(c) VCLT and the Principle of Systemic Integration: Normative Shadows in
Plato’s Cave, Leiden, Brill-Nijhoff, 2015 at p. 102 onward [Merkouris, Systemic Integration]; Simma, supra
20 note, p. 48; International Law Commission, Fragmentation of International Law: Difficulties Arising from
In sum, the idea of interpreting a treaty while taking account of subsequent facts and
(legal) acts only dates back over 50 years. Before this, as the discussions of the Institute
of International Law and the earlier quote by Sir Gerald Fitzmaurice highlight,42 the
opinion of the authors tended towards giving deference to the legal situation in force at
the treaty’s conclusion. The disappearance of the reference to intertemporality during

the VCLT negotiations opened the way to a more contemporary reading of treaties.
As international tribunals have made use of this opening, it is crucial to rely on their
practice to understand the developments in evolutive interpretation and the situations
it could cover.
III. CHANGES AND EVOLUTIVE INTERPRETATION IN THE PRACTICE OF

SOME INTERNATIONAL ADJUDICATORY BODIES
Soon after the VCLT was concluded, the ICJ ruled on a question linked to the evolution
of law in its advisory opinion in the Namibia case.43 On that occasion, a reading based
on the original intention of the parties resulted in the court considering relevant law
subsequent to the treaty’s conclusion.
Mindful as it is of the primary necessity of interpreting an instrument in accordance with

the intentions of the parties at the time of its conclusion, the Court is bound to take
into account the fact that the concepts embodied in Article 22 of the Covenant—‘the
strenuous conditions of the modern world’ and ‘the well-being and development’ of the
peoples concerned—were not static, but were by definition evolutionary, as also, there-
fore, was the concept of the ‘sacred trust’. [. . .] Moreover, an international instrument
has to be interpreted and applied within the framework of the entire legal system
prevailing at the time of the interpretation.44
In 1970, the ICJ took ‘into consideration the changes which have occurred in the
supervening half-century’ and ‘the subsequent development of law’ in the terms of
VCLT Article 31(3)(c)—the fourth category of situations discussed above. The ICJ
freed itself from the ‘relevance’45 of subsequent rules to refer to ‘the entire legal system’.
The ICJ also resorted to the fiction of intention through the text, by presuming the
intention of evolution on the negotiators’ part through use of notions that were ‘not
static, but were by definition evolutionary’.46
In 1979, the Aegean Sea case expanded this approach, when the ICJ resorted to a fic-
tion of intention of the parties whose use of a ‘generic term’ reflected that they ’intended
to follow the evolution of the law’ 47 . Nevertheless, it anchored its interpretation on the
Diversification and Expansion of International Law, Doc UN A/CN.4/L.682 (2006) at para 475 [International
Law Commission, Fragmentation of International Law].
42 See supra, p. 1.
43 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory opinion, ICJ Reports 1971, p. 16 [Advisory
opinion Namibia].
44 Ibid, at para 53 [emphasis ours].
45 VCLT Article 31(3)(c).
46 Advisory opinion Namibia, supra note 43, at para 53.
47 Aegean Sea Continental Shelf Case, Judgement, ICJ Reports 1979, p. 3 at para 77 [Aegean Sea case].
intention of the parties to the treaty at the moment of the treaty’s conclusion, insisting
that at the conclusion of the treaty, the parties wished that the meaning of the terms
should continue to evolve—corresponding to our first category.
One year earlier in 1978, the European Court of Human Rights also admitted the
necessity of considering changes. However, in contrast to the ICJ, it seemed to recognize

a reference to the evolution of the social context, recognized in VCLT Article 31(1), our
second category:
The Court must also recall that the Convention is a living instrument which, as the
Commission rightly stressed, must be interpreted in the light of present-day conditions.48
More than 20 years later, in the Matthews v United Kingdom case, the European Court of
Human Rights took the opposite route from that taken by the ICJ, explicitly excluding
the intention of the negotiators of the European Convention of Human Rights49 (ECHR),
but referring instead to the evolution of law and to structural changes:
That the Convention is a living instrument which must be interpreted in the light of
present-day conditions is firmly rooted in the Court’s case-law [. . .]. The mere fact that a
body was not envisaged by the drafters of the Convention cannot prevent that body
from falling within the scope of the Convention. To the extent that Contracting States
organise common constitutional or parliamentary structures by international treaties, the
Court must take these mutually agreed structural changes into account in interpreting the
Convention and its Protocols.50
The foundation of this reasoning may be attributed to a broad reading of Article

31(3)(c), because new international treaties influenced the interpretation of the Con-
vention; and, also as some authors argue, to a teleological reading of the Convention51 ,
i.e. based on its object and purpose of the treaty. Interpretation of the purpose and object
(VCLT Article 31(1)), to maintain the effectiveness of the treaty, was also adopted in
the Iron Rhine arbitration:
In the present case it is not a conceptual or generic term that is in issue, but rather new
technical developments relating to the operation and capacity of the railway. But here,
too, it seems that an evolutive interpretation, which would ensure an application of the
treaty that would be effective in terms of its object and purpose, will be preferred to a
strict application of the intertemporal rule.52
In 2009, the ICJ reaffirmed, the importance of the ‘ordinary meaning of the terms’ in
their semantic context at the date of the interpretation, but by making reference to the
parties’ intention, at the date of the treaty’s conclusion. The Costa Rica v Nicaragua case
48 Tyrer v United Kingdom (1978) ECHR 2 No. 5856/72, para 31.

49 European Convention on Human Rights, 4 November 1950, 213 UNTS 221.
50 Matthew v United Kingdom [GC] (1999) ECHR 1 No. 24833/94, para 39 [emphasis ours].
51 See Dinah Shelton, The Oxford Handbook of International Human Rights Law (Oxford: Oxford University
Press, 2013) at p. 752.
52 Award in the Arbitration regarding the Iron Rhine (‘Ijzeren Rijn’) Railway between the Kingdom of Belgium and
the Kingdom of the Netherlands, Decision of 24 May 2005, 27 UNRIAA 35 at para 80.
led the ICJ to provide the following explanation concerning its interpretation of the
word ‘comercio’:
It is true that the terms used in a treaty must be interpreted in light of what is determined to
have been the parties’ common intention, which is, by definition, contemporaneous with
the treaty’s conclusion. [. . .] This does not however signify that, where a term’s meaning

is no longer the same as it was at the date of conclusion, no account should ever be taken
of its meaning at the time when the treaty is to be interpreted for purposes of applying it.53
Interestingly, another interpretation of the term ‘trade’ had already taken place in the
earlier Oil Platforms case. On this occasion, the ICJ had however adopted another
approach but with the same result. Based on the intention of the parties, who would
have wished to apply the meaning of the term as it existed at treaty’s conclusion, and
according to the court, the term ‘commerce’ at that time already included the transport
of passengers. The ICJ also had recourse to a dictionary in assessing the meaning of the
word.54
The North American Free Trade Agreement (NAFTA) Panel in Tariffs applied by
Canada to certain US-origin agricultural products also had recourse to the terms ‘an
evolving system of law’.55 The Panel interpreted and applied NAFTA in a way that
maintained the General Agreement on Tariffs and Trade (GATT) flexibilities, despite
the entry into force of the WTO and the disappearance of the GATT.56 The Panel
referred to the ‘language of the agreement and of the context of the negotiations’ of
the GATT:57
By accepting the application of GATT rights and obligations, including those under agree-
ments negotiated under the GATT, the Parties were also accepting any modifications that
might be made to the regimes under the GATT that permitted agricultural protection.58
The Panel concludes, therefore, that FTA Article 710 brings into the NAFTA, as
between Canada and the United States, the rights and obligations under the Uruguay
53 Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua), Judgement, ICJ Reports 2009,
p. 213 at para 63–4 [Costa Rica v Nicaragua case]. In the recent Pulp Mils case, the ICJ reiterated that same
statement: ‘there are situations in which the parties’ intent upon conclusion of the treaty was, or may be
presumed to have been, to give the terms used—or some of them—a meaning or content capable of evolving,
not one fixed once and for all, so as to make allowance for, among other things, developments in international
law’, Case concerning Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgement, ICJ Reports 2010,
p. 14 at para 204.
54 Case concerning Oil Platforms (Islamic Republic of Iran v United States of America), Preliminary Objection,
Judgement, ICJ Reports 1996, p. 803 at para 45.
55 Tariffs applied by Canada to certain US-origin agricultural products (1996), NAFTA Doc CDA-95-2008-01,
(Final Report of the Panel) at para 139 [‘Canada – Agricultural Products’].
56 The question was whether Article 710 of the FTA negotiated between the USA and Canada (integrated by
reference into NAFTA, and itself referring to the GATT) would also cover the situation from the entry into
force of the WTO (and the disappearance of the GATT) onward. Consequently, the exceptional agricultural
protections maintained under the aegis of the GATT were from then on maintained, even under the WTO.
57 Canada – Agricultural Products, supra note 55, at para 73.
Round agreements that replaced those rights and obligations under which agricultural
quotas were maintained.59
The Panel referred to both the intention of the negotiators by their choice of certain
words considered to be generic (referring to the multilateral system of trade law) and
on the object and purpose of NAFTA60 , which allowed for an evolutionary scope of the

term GATT, to become WTO.
This brief overview of the practice of certain international tribunals underlines the
fact that several types of changes can arise after the treaty’s conclusion, and tribunals
have dealt with them by using traditional rules of treaty interpretation, within which
they seem to comfortably fit. Whether by respecting of the intention of the parties, the
ordinary meaning of the terms in their context, the object and purpose of the treaty
or the systemic integration of international law, all VCLT rules appear to have been
able to integrate and take into account the types of changes discussed earlier. With this
framework in mind, we now turn to consider WTO jurisprudence to determine whether
it confirms this position.
IV. CONSIDERATION OF CHANGES AND EVOLUTIVE INTERPRETATION IN

WTO DISPUTE SETTLEMENT
As mentioned above, the WTO AB referred to the ‘evolutive interpretation’ in its early
case law in late 1990s. One might wonder what the AB meant when it wrote that ‘the
generic term “natural resources” in Article XX(g) is not “static’’ in its content or refer-
ence but is rather “by definition, evolutionary”’.61 Did it wish to expand the principles
of treaty interpretation or did it seek to recall the principles of interpretation for public
international law by presenting them differently? Did the AB need to refer to evolutive
interpretation? As we asked earlier, does the principle of evolutive interpretation add to
the principles of interpretation in public international law?
The four types of changes that may take place between the conclusion of the treaty
and the date of the interpretation of its provisions can also be used as an analyti-
cal framework to understand the situation of ‘evolutive interpretation’ in the WTO
jurisprudence.
A. The use of generic terms in connection with the intention of the parties
In the US – Shrimp case62 the AB referred for the first time to an evolutive interpretation
whose theoretical underpinnings are close to the ICJ’s perspective.63 This proximity was
assumed by the AB members, who cited ICJ jurisprudence in the footnotes:64

61 US – Shrimp, supra note 4, para 130.
62 WTO Appellate Body Report, US – Shrimp, supra note 4, para 130.
63 For a brief explanation of the importance of this case, see Callum Musto and Catherine Redgwell, ‘US –
Import Prohibition of Certain Shrimp and Shrimp Products (1998)’ in Eirik Bjorge and Cameron Miles
(eds), Landmark Cases in Public International Law (Cumnor Hill: Hart Publishing, 2017) at 489.
64 Ibid, at para 130, nn 109. Reference is made to the Namibia Advisory Opinion, supra note 43 and the Aegean
Sea case, supra note 47.
From the perspective embodied in the preamble of the WTO Agreement, we note that the
generic term ‘natural resources’ in Article XX(g) is not ‘static’ in its content or reference
but is rather ‘by definition, evolutionary’.65
Generic terms, inter alia, seems to justify the AB’s decision here. To consolidate its
approach, a second rationale is also presented in the same paragraph, as the AB cites

four international instruments supporting its position—confirming that relevant inter-
national law has also evolved since the conclusion of the old GATT Article XX. We will
return to this argument below.66
In 2010, the China – Publications and Audiovisual Products case emphasizes the
evolutive potential of the treaty text:
More generally, we consider that the terms used in China’s GATS Schedule (‘sound
recording’ and ‘distribution’) are sufficiently generic that what they apply to may change
over time.67
The AB even goes so far as to explicitly reject the doctrine of intertemporality, which
would advocate interpreting the terms according to their meaning at the time of a
treaty’s ratification:
We further note that interpreting the terms of GATS specific commitments based on
the notion that the ordinary meaning to be attributed to those terms can only be the
meaning that they had at the time the Schedule was concluded would mean that very
similar or identically worded commitments could be given different meanings, content,
and coverage depending on the date of their adoption or the date of a Member’s accession
to the treaty.68
The AB then reconciles its decision with the US – Shrimp jurisprudence and the
Costa Rica v Nicaragua case (before the ICJ) by referring to them in a footnote.69
In this Audiovisual Products dispute, the application of evolutive interpretation, based
on generic terms chosen by the negotiators contains a peculiarity. The AB applies an
evolutive interpretation in the domain of technology and thus recognizes technical
evolution.
It can be noted that the Panel in EC – IT Products adopted the same approach a few
years earlier:
In the case of this concession, the Panel notes that generic terms were used to cover a wide
range of products and technologies.70
65 Ibid, at para 130.

66 See infra Section IV.C, for a discussion of the United States – Shrimp case.
67 WTO Appellate Body Report, China – Measures Affecting Trading Rights and Distribution Services for Certain
Publications and Audiovisual Entertainment Products, WT/DS363/AB/R, adopted 19 January 2010, para 396
[‘China – Publications and Audiovisual Products’].
68 China – Publications and Audiovisual Products, supra note 67, at para 397.
69 China – Publications and Audiovisual Products, supra note 67, at para 396, nn 705.
70 Panel Reports, European Communities and its member States—Tariff Treatment of Certain Information Tech-
nology Products, WT/DS375/R / WT/DS376/R / WT/DS377/R, adopted 21 September 2010, para 7.599
[‘EC –IT Products’].
These two interpretations based on generic terms could also result from an inter-
pretation of the ordinary meaning of the terms used in their ‘context’, because the
technological context has changed, as discussed hereafter.71 This demonstrates that the
different types of changes are not mutually exclusive. On the contrary, they regularly
overlap.

Finally, in the US – Gambling case, the evolution is implicitly based on a concept
often best expressed in generic terms. In this case, the Panel had to interpret the term
‘public morals’ in GATS Article XIV. In doing so, it indicated:
We are well aware that there may be sensitivities associated with the interpretation of the
terms ‘public morals’ and ‘public order’ in the context of Article XIV. In the Panel’s view,
the content of these concepts for Members can vary in time and space, depending upon a
range of factors, including prevailing social, cultural, ethical and religious values.72
B. The ordinary meaning of the terms in their ‘context’

Similarly, to the ICJ in the Oil Platforms case, the search for the ordinary meaning of
the terms in their ‘context’, as the first paragraph of VCLT Article 31 prescribes, seems
to have allowed WTO adjudicators to account for the evolution that permeates the
meaning of certain terms in the WTO treaty. Even more so than the ICJ, the AB has long
been considered as a defender of interpretation based near exclusively on the text,73 to
the point of being considered ‘textually obsessed’.74 The AB recognized this importance
of the meaning that the dictionary accords to words:
In order to identify the ordinary meaning, a Panel may start with the dictionary definitions
of the terms to be interpreted.75
Recourse to the contemporary meaning that the dictionary gives words forces consider-
ation of the most recent meaning given to a word. The societal and semantic context will
then naturally be considered by the treaty interpreter. Continuing its reasoning in US –
Gambling, the AB emphasized the significance of the dictionary meaning (and thus the
role of the social context) in seeking to determine whether ‘gambling’ is included in the
ordinary meaning of the word ‘sporting’:
71 This point is also discussed in Section IV.B. below.

72 Panel Report, United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services,
WT/DS285/R, adopted 20 April 2005, para 6.461 [‘US – Gambling (Panel)’].
73 See Donald Mcrae, ‘Treaty Interpretation and the Development of International Trade Law by the WTO
Appellate Body’ in Giorgio Sacerdoti, Alan Yanovich, and Jan Bohanes (eds), The WTO at Ten: The
Contribution of the WTO Dispute Settlement System (Cambridge: Cambridge University Press, 2006) 360
at p. 363.
74 ‘Un obsédé textuel’, Georges Abi-Saab, ‘The Appellate Body and Treaty Interpretation’ in Olufemi Elias,
Malgosia Fitzmaurice, and Panos Merkouris (eds), Treaty Interpretation and the Vienna Convention on the
Law of Treaties: 30 Years On (Leiden: Martinus Nijhoff, 2010) 97 at p. 106 [Abi-Saab]. This perspective was
nonetheless questioned by Van Damme in Van Damme, supra note 31, at p. 227.
75 WTO Appellate Body Report, United States – Measures Affecting the Cross-Border Supply of Gambling and
Betting Services, WT/DS285/AB/R, adopted 20 April 2005, para 164 [‘US – Gambling’].
First, to the extent that the Panel’s reasoning simply equates the ‘ordinary meaning’ with
the meaning of words as defined in dictionaries, this is, in our view, too mechanical an
approach. Secondly, the Panel failed to have due regard to the fact that its recourse to
dictionaries revealed that gambling and betting can, at least in some contexts, be one of
the meanings of the word ‘sporting’.76

The use of a dictionary, even when it only provides a partial solution, emphasizes the
fact that the AB is ready to take semantic evolution into consideration (necessarily
originating in the meaning that society in general attributes to it) in its interpretation.
Therefore, the underlying rationale of the Panels in US – Gambling or in EC – IT
Products, mentioned above, could also flow from a reading of the ordinary meaning of
the terms of a treaty, read in their current semantic and commercial ‘contexts’ or even
in light of the object and purpose of the WTO treaty.
However, WTO jurisprudence is not necessarily unanimous. It is interesting to note
that shortly after the Panel Report in US – Gambling, but before that of the AB, another
Panel took a thoroughly different approach concerning the ordinary meaning of words
over time.
In our view, the ‘ordinary meaning’ is to be assessed at the time of conclusion of the treaty
in question, being the time which is at the focus of both Articles 31 and 32 of the Vienna
Convention.77
Applying the principle of intertemporality, the Panel in EC – Chicken Cuts explicitly

refused any evolutive approach, by notably affirming that none of the parties had sug-
gested it.78 While the Panel’s reasoning was upheld with regards to ‘ordinary meaning’,
the AB did not directly address the question of intertemporality.79
C. Preserving the effectiveness of the treaty’s object and purpose

The third type or category of changes envisages consideration of situations that would
not have been conceivable at the time of the conclusion of the treaty, in order to
maintain the object and purpose of the treaty. In this context, VCLT Article 31(1)
and (2) seem to offer options for analysis. This category is essential when a change
has taken place, in a direction that could not have been foreseen by the parties. This
is the case for technological progress, which sees the appearance of goods or services
whose existence could barely have been imagined a few years previously. This scenario
is explicitly contemplated by the Panel in the Mexico – Telecoms when called upon to
interpret the GATS. Indeed, the ‘rapid technological evolution’ of telecommunication
76 US – Gambling, supra note 75, at para 166.

77 Panel Reports, European Communities – Customs Classification of Frozen Boneless Chicken Cuts, WT/
DS269/R (Brazil) / WT/DS286/R (Thailand), adopted 27 September 2005 at para 7.99 [‘EC – Chicken
Cuts (Panel)’].
78 EC – Chicken Cuts (Panel), supra note 77, para 7.99, nn 144. One may nevertheless question the status of
this jurisprudence in view of the response brought by the AB in the US – Gambling case that followed, while
recognizing that it did not return to the question in its EC – Chicken Cuts Report.
79 WTO Appellate Body Report, European Communities – Customs Classification of Frozen Boneless Chicken Cuts,
WT/DS269/AB/R, WT/DS286/AB/R, adopted 27 September 2005, para 174–6 [‘EC – Chicken Cuts’]
services is directly linked to the fact that ‘interpretation and clarification of GATS
provisions is likely to evolve over time’.80
On this theme, the US – Gambling Panel was called to determine whether internet
games (gambling) were covered by the ‘cross-border’ commitments in Mode 1, nego-
tiated at a time when the internet did not exist. Because the object and purpose was

‘technological neutrality’, the Panel could affirm that they would still fit under Mode 1,
which encompasses all possible means of supplying services from the territory of one
WTO Member into the territory of another WTO Member—even though the GATS
had been agreed upon before the internet boom.81
The presumption of intention found via generic terms (the first category identified
above) would not be obvious here, since it would lead to the conclusion that the
negotiators would have wanted something whose very existence was not envisaged
at the moment that they had concluded the treaty. It was therefore necessary to turn
toward a teleological interpretation to justify an evolutive approach. In this case, given
the object and purpose of the GATS,82 interpreting it dynamically with respect to
technological evolution is necessary to its effectiveness.83
In EC – IT Products case, mentioned above84 , the Panel referred to the use of ‘generic
terms’ to justify taking into account the evolution of technology in its interpretation.
The same issue was present in US – Gambling 85 or China – Publications and Audiovisual
Products86 . Multifunction machines sold at the moment of the interpretation of the term
differ drastically from those existing during the negotiations of the WTO. A teleological
interpretation of the terms in their (technological context), in light of the object and
purpose of the treaty (liberalization of trade), would also lead to the conclusion the
Panel should look at the ordinary meaning of the technological terms today. Note that
the adjudicator did not use the intention of the negotiators mentioned previously, but
rather the object and purpose of the treaty.87
80 Panel Report, Mexico – Measures Affecting Telecommunications Services, WT/DS204/R, adopted 1 June 2004,
para 7.2 [‘Mexico – Telecoms’].
81 US—Gambling (Panel), supra note 72, at para 6.285.
82 The object and purpose were determined to ‘establishing “a multilateral framework of principles and rules for
trade in services with a view to the expansion of such trade under conditions of transparency and progressive
liberalization”’, China—Publications and Audiovisual Products, supra note 67, at para 7.1219.
83 It could be argued that the principle of ‘technological neutrality’ that the Panel advanced may have implicitly
been recognized by the WTO Agreement’s negotiators. In effect, the application of the GATS to the
telephone and fax machine might suggest a broad acceptance of this principle. In admitting this, the US—
Gambling case would fall into an evolution based on the intention of the parties. That said, from the
qualitative point of view rather than quantitative, changes linked to the advent of the internet seem more
coherently attributed to this reading of the GATS’ object and purpose.
84 Supra, p. 15.
85 See US – Gambling (Panel), supra note 72.
86 See China – Publications and Audiovisual Products, supra note 67.
87 This is, in any case, the argumentation retained by Japan in this case: ‘Japan considers that, it would be
inconsistent with the object and purpose of the WTO Agreement and the GATT 1994 to reduce tariffs on a
particular product, only to permit the re-imposition of those tariffs simply because of some evolution in that
product.’, EC – IT Products, supra note 70, at para 7.538.
D. The evolution of related and relevant international law

The last type of change concerns those affecting the relevant law. As mentioned earlier,
sub-paragraphs (3)(a) and (b) of Article 31 envisage the situation in which a sub-
sequent agreement or practice modifies the interpretation of the initial treaty. This
approach effectively permits the taking into account of changes to the initial treaty

desired by the parties.
The AB has repeatedly dealt with such situations. In the US – Tuna II (Mexico)
case, a TBT Committee decision was considered a subsequent agreement in the sense
of Article 31(3)(a).88 Similarly, a ministerial decision was deemed to be a subsequent
agreement, following an extensive analysis of the constitutive criteria in the US – Clove
Cigarettes case.89
The AB has analyzed how criteria relating to subsequent practice are expressed in
WTO law, and has considered events that took place after the creation of the organiza-
tion. Additionally, with regard to the requirement that there be a relationship between
the practice and the treaty, the AB has held that the practice ‘must be a common,
consistent, discernible pattern of acts or pronouncements’.90 It is, however, not necessary
that every single party engage in that practice.91 Indeed, under certain circumstances,
silence or lack of reaction can be understood as a tacit acceptance.92 The AB then
confirmed this approach, which was first followed in EC–Chicken Cuts, by re-using it
in the EC – Large Civil Aircraft case, while adding that it recognized that the parties’
agreement regarding a treaty’s interpretation may be deduced, not only from the actions
of those actually engaged in the relevant practice, but also from the acceptance of other
parties to the treaty through their affirmative reactions, or depending on the attendant
circumstances, their silence.93
Article 31(3)(c) VCLT envisages something else—what some have referred to as the
international systemic integration and coherence. Article 31(3)(c) seems to express the
possibility of considering rules that emerged after the treaty, even if these rules do not
expressly relate to its interpretation.
The US – Shrimp case suggests that the AB relies on the rules of Article 31(3)(c),
through the invocation of various relevant international instruments. Thus, the inter-
pretation of ‘natural resources’ is deemed to be evolutive by reference to the United
Nations Convention on the Law of the Sea, the Convention on Biological Diversity, the
Convention on the Conservation of Migratory Species of Wild Animals, and Agenda 21.94
88 WTO Appellate Body Report, United States – Measures Concerning the Importation, Marketing and Sale of
Tuna and Tuna Products, WT/DS381/AB/R, adopted 13 June 2012, para 372 [‘US – Tuna II (Mexico)’].
89 WTO Appellate Body Report, United States – Measures Affecting the Production and Sale of Clove Cigarettes,
WT/DS406/AB/R, adopted 24 April 2012, para 256–68 [‘US – Clove Cigarettes’].
90 US – Gambling, supra note 75, at para 192.
91 EC – Chicken Cuts, supra note 79, at para 259.
92 EC – Chicken Cuts, supra note 79, at para 272.
93 WTO Appellate Body Report, European Communities and Certain Member States – Measures Affecting Trade
in Large Civil Aircraft, WT/DS316/AB/R, adopted 1 June 2011, para 845, nn 1916 [‘EC and certain Member
States – Large Civil Aircraft’].
94 In the US – Shrimp case, it may equally be argued that evolutive interpretation was unnecessary. The
negotiators of the GATT 1947 seem to have foreseen the application of the terms ‘natural resources’ to
animals, thus rendering superfluous the AB’s argumentation regarding the evolution of the treaty. However,
It is clear that sub-paragraphs (3)(a) and (3)(b) of VCLT Article 31 could not have
served as the basis for the AB’s interpretive analysis, insofar as these instruments do not
focus on the interpretation of the WTO Agreement—a precondition of the application
of sub-paragraphs (3)(a) and (b) of Article 31.95 The AB seems, rather, to have adopted
a broad reading of Article 31(3)(c), encompassing much more than simply the formal

treaties.96 Indeed, on the one hand, none of the above-mentioned treaties have been
ratified by all parties to the litigation in question;97 on the other hand, Agenda 21 is
not, by nature, an international treaty, but an instrument of soft law.98 It seems that, for
the AB, these legal instruments are nevertheless ‘relevant rules’ in the sense of VCLT
Article 31(3)(c). In its eyes, international environmental law has evolved and produced
a rule that includes living creatures within the terms ‘natural resources’, relevant to the
term of VCLT Article 31(3)(c).99
The question remains regarding to whom ‘parties’ refers, in the expression ‘relevant
rules applicable to the parties’. For a rule to be relevant in the interpretation of a treaty,
must it be applicable to all the parties to the treaty under interpretation, or merely those
to the dispute? The AB seems to have indicated certain principles when it wrote:
An interpretation of ‘the parties’ in Article 31(3)(c) should be guided by the Appellate

Body’s statement that ‘the purpose of treaty interpretation is to establish the common
intention of the parties to the treaty.’ This suggests that one must exercise caution in
drawing from an international agreement to which not all WTO Members are party. At
the same time, we recognize that a proper interpretation of the term ‘the parties’ must also
take account of the fact that Article 31(3)(c) of the Vienna Convention is considered an
the inclusion of a paragraph on ‘sustainable development’ in the preamble of the Marrakesh Agreement,
which thus makes up part of the legal context, seems to be determinant for the AB when it wrote that this
reference to sustainable development ‘must add colour, texture and shading’ the interpretation of the old
terms of the WTO. US – Shrimp, supra note 4, para 153.
95 See International Law Commission, Report of the 70th Session, supra note 34, at p. 13.
96 The AB also includes the general principles of law in its interpretation of Article 31(3)(c), US – Shrimp,
supra note 4, at para 158, nn 157.
97 United Nations Convention on the Law of the Sea: 142 ratifications at the time; the United States had not
signed it, but admitted the customary character of most of the rules contained in the treaty. Convention on
Biological Diversity: 180 ratifications at the time; the United States and Thailand had signed but not ratified
it. Convention on the Conservation of Migratory Species: 60 ratifications at the time. The AB was aware of this
partial ratification by the parties to the litigation, mentioning it in a footnote; US – Shrimp, supra note 4,
para 130, nn 110–3. See also Ulf Linderfalk, ‘Who are “the Parties”? Article 31, Paragraph 3(c) of the 1969
Vienna Convention and the “Principle of Systemic Integration” Revisited’ (2008) 55:3 Netherlands Interna-
tional Law Review 343 at p. 344 onward.
98 The majority of authors defend the position that the term ‘rule’ applies only to those elements having
obligatory force. A minority position nonetheless admits the possibility of including some ‘soft’ elements
in the rule of Article 31(3)(c), see Merkouris, Systemic Integration, supra note 41, p. 22, nn 73.
99 It is useful to also mention the existence of the Panel Report EC – Approval and Marketing of Biotech Products.
On this occasion, it argued that Article 31(3)(c) could not be used while all Members of the WTO were
parties to another treaty used in interpreting WTO rules, Panel Reports, European Communities – Measures
Affecting the Approval and Marketing of Biotech Products, WT/DS291/R / WT/DS292/R / WT/DS293/R,
adopted 21 November 2006, para 7.68 and 7.71 [‘EC – Approval and Marketing of Biotech Products’]. This
decision was criticized, notably with respect to the issue of the fragmentation of international law, and
was not taken up again in subsequent jurisprudence. See International Law Commission, Fragmentation of
International Law, supra note 41 at p. 227; EC and certain Member States – Large Civil Aircraft, supra note 93,
para 844–46.
expression of the ‘principle of systemic integration’ which, in the words of the ILC, seeks
to ensure that ‘international obligations are interpreted by reference to their normative
environment’ in a manner that gives ‘coherence and meaningfulness’ to the process of legal
interpretation. In a multilateral context such as the WTO, when recourse is had to a non-
WTO rule for the purposes of interpreting provisions of the WTO agreements, a delicate
balance must be struck between, on the one hand, taking due account of an individual

WTO Member’s international obligations and, on the other hand, ensuring a consistent
and harmonious approach to the interpretation of WTO law among all WTO Members.100
Arguably Article 31(3)(c) requires consideration of the broader legal context, to ensure
a systemic integration or coherence of international law. States must at all times and
in good faith respect general international law and all their international obligations.
International law evolves and States must continue to respect it in the implementation
and application of their treaty obligations. It was on this basis that the AB considered
the state of international law in force during the interpretation of certain terms of the
WTO Treaty.
V. CONCLUSION—THE DIFFERENT CATEGORIES OF EVOLUTIVE

INTERPRETATION
Several types of changes can take place between the date of the conclusion of a treaty
and the date when its provisions call for interpretation and they can have an important
impact on the application of the concerned treaty provisions. In this article, four types or
categories of changes were identified. The first type of changes to the ordinary meaning
of terms exists when ‘generic’ terms are used. This choice of generic terms could confirm
the (original) intention of the parties to cover situations that are new, or different from
those existing at the time of the treaty’s conclusion.101 These terms can therefore be
understood as having been voluntarily chosen to permit a future semantic evolution.102
The terms concerning social concepts may equally be considered ‘generic’. Everyone
agrees that social and human values evolve over time. In the case of the WTO, this issue
is found in the interaction between trade and non-trade values, with the question being
whether certain market access restrictions may be justified. In this context, it has been
argued that it is simple to presume that the parties would have wished to have recourse
100 EC and certain Member States – Large Civil Aircraft, supra note 93, para 845.
101 This seems to be the majority opinion; see Julian Arato, ‘Subsequent Practice and Evolutive Interpretation:
Techniques of Treaty Interpretation over Time and Their Diverse Consequences’ (2010) 9:3 Law and
Practice of International Courts and Tribunal 443; Bjorge, supra note 12; Sondre Torp Helmersen, ‘Evolutive
Treaty Interpretation: Legality, Semantics and Distinctions’ (2013) 6:1 European Journal of Legal Studies 127
[Helmersen]. This principle of ‘contemporaneity’ has moreover been confirmed in international jurispru-
dence. See CS Inspection and Control Services v Argentina, Award on Jurisdiction (2012), CPA Case no. 2010-9
(Argentina–Germany BIT) at para 266, nn 449. This approach could also be related to the intention of the
negotiators deriving from ‘circumstances’, and be covered by VCLT Article 32.
102 Venzke summarizes in these terms: ‘In short, it is rather common to understand developments in law and
language as evolution. Linguistic theory seems to readily support the conception of legal changes in terms
of evolution.’ Ingo Venzke, How Interpretation makes International Law: On Semantic Changes and Normative
Twists (Oxford: Oxford University Press, 2012) p. 39 [Venzke].
to a ‘value driven’ notion, such as ‘public morals’, clearly based on social values that
evolve.103
The second type of changes covers situations where the ordinary or even specific or
technical meaning of the treaty’s terms may itself have evolved, and this could not have
been envisaged at the time of the conclusion of the treaty. For instance, the French term

‘viande’, or ‘meat’, referred to all forms of food in the 17th century (cereals and vegetables
included). It has since come to mean nothing more than the edible flesh of an animal.104
Similarly, we may see that certain words, despite a clear and unequivocal meaning at
the treaty’s conclusion, evolve with time—transportation in the 19th century did not
include airplanes, telecommunication in the early 1990s did not include the internet,
family in the 1950s did not include gay couples, as they do today.
The third type of changes concerns physical or technical transformations and evolu-
tions. Notably, this category would include internet accessibility in trade, which was
inconceivable when the WTO treaty was concluded. If a WTO Member opens its
market to all modes of so-called ‘cross-border supplies’, including telecoms, telephones
and faxes, the technological neutrality that qualifies the object and purpose of the
WTO provisions on trade in services would also today include cross–border internet
transmission.
In the fourth category, changes may concern related and relevant rules of interna-
tional law, which could have evolved since the treaty’s conclusion. The ILC specifies
that such subsequent acts can help determine whether a treaty’s interpretation should
evolve.105 International law more generally, outside the treaty being interpreted, can also
change and evolve and affect importantly, in addition to the context, the meaning of
terms of the treaty under interpretation
Paradoxically, among the four categories of changes that we have identified (and
for which a certain evolutive interpretation has already been possible), the one that
is based on the intention of the parties via the use of generic terms seems the most
anchored in the past.106 Formally, the interpretation in question is done at the date of the
treaty’s conclusion, when the parties chose the generic term. The meaning of the term
is essentially based on an understanding that is contemporary to the treaty’s conclusion,
and subsequent evolution does not constitute a real change in the interpretation of the
terms. The rule remains the same, but from the beginning the meaning ascribed to the
103 As Helmersen emphasizes: ‘When value driven terms evolve, tribunals seem to accept that the evolution
was intended by the parties, without demanding further justification. That is presumably because values
inevitably change over time, as new generations will have their own views on what is (for example) “inhuman”
or “fair”. The evolution of a non-value driven term is, on the other hand, not inevitable, and is thus less easily
anticipated’. Helmersen, supra note 101, at p. 139.
104 Ferdinand Brunot, Histoire de la langue française des origines à 1900, Tome IV, Première Partie, (Paris: Armand
Colin, 1913) at p. 277.
105 International Law Commission, Report of the 68th Session, supra note 14, at p. 122.
106 We are here reflecting the categorization made by Malgosia Fitzmaurice, which opposes evolution based on
intention at the moment of the conclusion, and that drawn from the subsequent intention. Malgosia Fitz-
maurice, ‘Dynamic (Evolutive) Interpretation of Treaties: Part I’ (2008) 21 Hague Year Book of International
Law 101.
term is sufficiently vague107 to include varied situations. Only the contents change, but
the container remains the same—the word does not change, but its meaning does.
The case of evolution based on the ordinary meaning of the terms in their social or
semantic context seems subtler than those mentioned previously, because of its quasi-
total extraneity to the legal field. The legitimacy of this category of evolution remains

an open question. On the one hand, change is taking place outside of the tribunals
and the usual fora of negotiation. On the other hand, a grassroots dynamic emerging
from society itself emphasizes a more democratic element within it, which cannot be
overlooked. Seen another way, this modification of the meaning of words, the semantic
context, may be seen as particularly democratic and legitimate, as it is society itself, as a
whole, which imposes this change on States.
When dealing with technological changes, the scope and meaning of the treaty
provisions themselves may evolve to take into account the technological changes with
a view to maintaining the original object and purpose of the treaty. The teleological
interpretation and the object and purpose of the treaty can be particularly useful in
permitting an evolutive interpretation of the treaty. This interpretive method would be
somehow hybrid, shared between the immutability of the object and the purpose of the
treaty and the ordinary meaning of the terms confronted by technological evolution—a
very frequent situation in the field of electronic trade, for example.
The changes to relevant international law are already mentioned in VCLT Article 31
in two principal forms. First, regarding the sub-paragraphs (3)(a) and 3(b) of Article
31, the consent of States remains pivotal. These States must, by their actions after the
ratification of a treaty, and related to it, show that they added to the original treaty and
therefore interpretation of the original treaty provisions has evolved. The fact remains
that the existence of these paragraphs confirms that States clearly wish, in certain
circumstances, to consider actions later than the date of the treaty’s conclusion.
The sub-paragraph 3(c) of VCLT Article 31 implies a change in the rule of interna-
tional law, external to the treaty under interpretation, which takes place later than the
treaty’s conclusion—without, however, requiring an explicit link with it. It is clear that
the meaning of the treaty provision may be affected and even modified by the birth of
subsequent relevant rules of international law.
What remains particularly interesting is that it seems that the provisions of the VCLT
can integrate and take into account all the changes envisaged at the beginning of this
study. If it is fundamental that the interpretation and application of treaties should be
adapted to the values of society, it seems that the VCLT comprises and incorporates
these changes. Indeed, the ILC appears to also be of this view:
In the final analysis, most international courts and tribunals have not recognized evolutive
interpretation as a separate form of interpretation, but instead have arrived at such an
evolutive interpretation in application of the various means of interpretation that are
mentioned in Articles 31 and 32 of the 1969 Vienna Convention, by considering certain
criteria (in particular those mentioned in paragraph (6) above) on a case-by-case basis.
107 On the vague character of the terms, see Helmersen, supra note 101, at pp. 143–44.
Any evolutive interpretation of the meaning of a term over time must therefore result from
the ordinary process of treaty interpretation.108
Evolutive interpretation, appears to be integrated in and an integral part of the VCLT’s

rules of interpretation, whether discussed individually or collectively. Nevertheless, the

categories and types of changes identified above should help with the understanding of
the various types of evolutive interpretation, each calling for different considerations.
Moreover, we hope that linking it back to the VCLT contributes to demystifying the
notion.
WTO adjudicating bodies have very frequently had recourse to VCLT Articles
31, 32, and 33 and were able to develop a specific jurisprudence related to evolutive
interpretation, even without using such terms. Social considerations and technological
evolution, notably, play an important role in the context of an organization in which
certain rules have been drafted more than 70 years ago. Thus, through the customary
rules codified in the VCLT, the WTO adjudicating bodies may maintain the relevance
of the rules that they interpret.
The question of the temporality of the elements considered remains, in any case, a
source of questions. Evolutive interpretation seems to stay, for the moment, a protean
notion—sometimes used inaccurately109 , or used loosely, but which perhaps does not
add much to the principles of treaty interpretation (of which the VCLT codifies several).
A reasonable interpretation and application of the VCLT rules and principles would
permit integration of all these approaches. In particular, the reading of ‘context’ in
Article 31 to include the contemporary ordinary meaning of the terms in their social
or semantic context leads to a clear dynamism in the process of interpretation—such
as the integration of soft law into the ‘rules’ of Article 31(3)(c). As Georges Abi-Saab
emphasizes, these rules are not limited to the exact text of the VCLT, but encompass
the whole of the ‘customary rules of interpretation’.110 It is thus legitimate to ask
whether evolutive interpretation may, in the long term, become a customary principle
of interpretation with different expressions.
However, the added value that the use of evolutive interpretation brings is not nec-
essarily purely legal since it would cover linguistic and technological but also political
and sociological changes. In the WTO, evolutive interpretation has allowed the AB to
remind WTO Members that the principles of treaty interpretation authorize it, and even
oblige it, to consider several provisions under more current perspectives, in order to
maintain the effectiveness of the WTO Treaty. This allows integration of social, human,
and environmental concerns, and a certain international coherence,111 while at the
same time recognizing that the nature of international trade means that it continues to
evolve technically.
108 International Law Commission, Report of the 70th Session, supra note 34, at p. 66.
109 James Crawford has also argued that recourse to evolutive interpretation was superfluous on the part of the
ICJ in the Costa Rica v Nicaragua case, supra note 53; Bjorge, supra note 12, at p. v.
110 Abi-Saab, supra note 74, p. 104.
111 International Law Commission, Fragmentation of International Law, supra note 41, at p. 89.

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Journal of International Economic Law, 2018, 21, 791–813

Evolutive Interpretation by the WTO Adjudicator

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I. EVOLUTIVE INTERPRETATION AND ITS DOCTRINAL APPROACHES

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II. EVOLUTIVE INTERPRETATION IN THE VCLT NEGOTIATIONS

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1. A treaty shall be interpreted in good faith in accordance with the ordinary

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extensive study on subsequent agreements and practice.34 He emphasizes that sub-

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III. CHANGES AND EVOLUTIVE INTERPRETATION IN THE PRACTICE OF

Mindful as it is of the primary necessity of interpreting an instrument in accordance with

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The foundation of this reasoning may be attributed to a broad reading of Article

48 Tyrer v United Kingdom (1978) ECHR 2 No. 5856/72, para 31.

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IV. CONSIDERATION OF CHANGES AND EVOLUTIVE INTERPRETATION IN

59 Canada – Agricultural Products, supra note 55, at para 199.

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65 Ibid, at para 130.

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B. The ordinary meaning of the terms in their ‘context’

71 This point is also discussed in Section IV.B. below.

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Applying the principle of intertemporality, the Panel in EC – Chicken Cuts explicitly

C. Preserving the effectiveness of the treaty’s object and purpose

76 US – Gambling, supra note 75, at para 166.

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D. The evolution of related and relevant international law

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An interpretation of ‘the parties’ in Article 31(3)(c) should be guided by the Appellate

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V. CONCLUSION—THE DIFFERENT CATEGORIES OF EVOLUTIVE

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Evolutive interpretation, appears to be integrated in and an integral part of the VCLT’s

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