Domestic Courts and the Interpretation of International Law Developments in International Law volume 72 The titles published in this series are listed at brill.com/ diil Domestic Courts and the Interpretation of International Law Methods and Reasoning Based on the Swiss Example By Odile Ammann LEIDEN | BOSTON This is an open access title distributed under the terms of the CC- BY- NC 4.0 License, which permits any non-commercial use, distribution, and reproduction in any medium, provided the original author(s) and source are credited. The Faculty of Law of the University of Fribourg (Switzerland) does not intend to approve or disapprove the opinions expressed in a dissertation; they must be considered as the author’s own (decision of the Faculty Council of 1 July 1916). Published with the support of the Swiss National Science Foundation. Cover illustration: Lady Justice sorting methodically through the Swiss case law on international law. © 2019 Rae Pozdro. All rights reserved. www.pozdro.net The Library of Congress Cataloging- in- Publication Data is available online at http:// catalog.loc.gov LC record available at http:// lccn.loc.gov/2019948876 Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill- typeface. issn 0924- 5332 isbn 978- 90- 04- 40986- 6 (hardback) isbn 978- 90- 04- 40987- 3 (e- book) Copyright 2020 by Odile Ammann. Published by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. Koninklijke Brill NV reserves the right to protect the publication against unauthorized use and to authorize dissemination by means of offprints, legitimate photocopies, microform editions, reprints, translations, and secondary information sources, such as abstracting and indexing services including databases. Requests for commercial re-use, use of parts of the publication, and/or translations must be addressed to Koninklijke Brill NV. This book is printed on acid- free paper and produced in a sustainable manner. Dissertation submitted to the Faculty of Law of the University of Fribourg (Switzerland) by Odile Ammann for the obtention of the degree of Dr. iur. Accepted by the Faculty of Law on 18 December 2017 upon the proposal of Professor Samantha Besson ( first rapporteur) and Professor Eva Maria Belser (second rapporteur) Contents Acknowledgments xi Abbreviations xv Introduction 1 1 The Subject and Basic Claims of This Book 1 2 Structure and Approach 3 3 The Benchmarks of Legality and Quality 7 part 1 What Is Interpretation? 1 The Interpretation of International Law by Domestic Courts – A Topic That Matters 15 1 Introduction 15 2 The State of the Literature 15 2.1 Descriptive Bias 17 2.2 Domestic Bias 20 2.3 ‘Amour Impossible’ 22 2.4 Legal Imperative 23 2.5 Swiss Gap 24 3 Why Switzerland? 26 4 Why Courts? 30 5 Why Domestic Courts? 31 6 Why International Law? 34 7 Why Focus on the Law’s Interpretative Methods? 37 2 Terminology and Conceptual Apparatus 44 1 Introduction 44 2 Legal Interpretation 44 3 Judicial Interpretation 47 4 Domestic Judicial Interpretation 52 5 Methods of Interpretation 54 5.1 Normative Interpretative Theories 54 5.2 Structural and Axiological Interpretative Principles 55 5.3 Rules 56 5.4 Auxiliary Means 57 5.5 Argument Types 57 6 The Interpretation of International Law 58 viii Contents 3 Interpreting International Law in Context – Domestic Specificities 62 1 Introduction 62 2 The Swiss State and International Law 65 2.1 Swiss Foreign Relations Law 65 2.2 International Law in the Swiss Legal Order 71 3 Legal Principles of Political Organization 87 3.1 Federalism 87 3.2 Linguistic Diversity 89 3.3 The Rule of Law 90 3.4 Semi- Direct Democracy 92 3.5 The Federal Assembly qua ‘Supreme Authority of the Confederation’ 95 4 The Swiss Judiciary 97 4.1 The Structure of the Swiss Judiciary 97 4.2 Characteristics of Swiss Courts’ Interpretative Activity 105 5 Conclusion 128 part 2 Why Interpret? 4 The Legal Effect of Domestic Rulings in International Law 133 1 Introduction 133 2 Domestic Rulings as Means of Enforcement of International Law 137 3 Domestic Rulings as Contributors to the Sources and Interpretation of International Law 142 3.1 Domestic Rulings in the Sources of International Law (Art. 38(1) (a)– (c) icj Statute) 145 3.2 Domestic Rulings as Auxiliary Means (Art. 38(1)(d) icj Statute) 153 4 Conclusion 158 part 3 How to Interpret? 5 The Need for Interpretative Methods in International Law 161 1 Introduction 161 Contents ix 2 Why Does the Law Need Interpretative Methods? a Comparison With Interpretation Outside the Law 162 2.1 Similarities 164 2.2 Differences 166 3 The Origins of Interpretative Methods in Domestic and International Law 167 3.1 Domestic Law 168 3.2 International Law 170 3.3 The Relationship between the Interpretative Methods of Domestic and International Law 175 4 Three Reasons for Requiring States to Use Interpretative Methods 176 4.1 Vagueness 176 4.2 Counter- Majoritarian Decisions 180 4.3 Judicial Politics 181 5 Three Objections against Interpretative Methods 184 5.1 The ‘Vague Methods’ Objection 184 5.2 The ‘Self- Made Methods’ Objection 187 5.3 The ‘Outcome Over Process’ Objection 189 6 Conclusion 190 6 The Interpretative Methods of International Law: What Are They, and Why Use Them? 191 1 Introduction 191 2 The Interpretative Methods of International Law 192 2.1 Textual Interpretation 197 2.2 Systematic Interpretation 202 2.3 Teleological Interpretation 208 2.4 Historical Interpretation 213 2.5 The Relationship between the Various Interpretative Methods 219 3 Conclusion 221 7 Swiss Courts and Treaty Interpretation 223 1 Introduction 223 2 Domestic Courts and the Methods of Treaty Interpretation 226 2.1 Introductory Remarks 226 2.2 Exposing and Evaluating the Practice 229 x Contents 3 Swiss Courts and the Methods of Treaty Interpretation 234 3.1 The Swiss Federal Tribunal and Treaty Interpretation before the vclt’s Entry into Force (1954– 1980) 235 3.2 The Swiss Federal Tribunal and Treaty Interpretation after the vclt’s Entry into Force and before Its Ratification by Switzerland (1980– 1990) 238 3.3 Swiss Courts and Treaty Interpretation after the vclt’s Entry into Force in Switzerland (1990– 2016) 239 3.4 Relationship with Interpretative Methods under Swiss Law 265 3.5 Comparing the Practice of Swiss Courts 267 3.6 Putting the Swiss Judicial Practice into Perspective 269 4 Evaluation 270 8 Swiss Courts and the Interpretation of Unwritten International Law 272 1 Introduction 272 2 Customary International Law 274 2.1 Domestic Courts and the Interpretation of Customary International Law 274 2.2 Swiss Courts and the Interpretation of Customary International Law 283 3 General Principles of International Law 302 3.1 Domestic Courts and the Interpretation of General Principles of International Law 303 3.2 Swiss Courts and the Interpretation of General Principles of International Law 305 4 Evaluation 316 Conclusion and Recommendations 320 1 The Argument Defended in This Book 320 2 Recommendations 323 2.1 Improving the Legality and the Quality of Domestic Rulings 323 2.2 Enhancing the Accessibility of Domestic Rulings 329 Bibliography 333 Index 373 Acknowledgments I submitted this work as a doctoral thesis to the Faculty of Law of the University of Fribourg on 4 July 2017. The viva took place on 18 December 2017, the day on which the Faculty of Law accepted this thesis. Subsequent developments, including relevant case law and scholarship, have been taken into account up to June 2019. I would not have completed this thesis without the support of many people, to whom I would like to express all my gratitude. First, I am deeply grateful to Samantha Besson, my supervisor, for her guidance and generosity throughout the thesis. Her extremely thorough, intellectually stimulating, and constructive feedback helped me tremendously. I would like to warmly thank her for allow- ing me to learn from her own work and outstanding scholarship, for continu- ously encouraging me, but also for always challenging me, and for prompting me not to take any concepts or theories for granted. Timothy Endicott has been an incredibly generous, thoughtful, and inspir- ing mentor during my research stay at the University of Oxford in 2016– 17. I am extremely grateful for the detailed and continuous feedback he provided on the various theoretical chapters of this book, as well as for his consistent sup- port while I was in the final months of my research. His encouragement and guidance helped me tie up the loose ends of this book, and prepare the manu- script for submission. Several people at my alma mater, the University of Fribourg, made indis- pensable contributions to my analysis. The many insightful doctoral seminars, workshops, and conferences organized by Samantha Besson while I worked as her research assistant in 2013–15 (but also beyond) played a crucial role in both the early and more advanced stages of my research. Among those are the two doctoral conferences I attended in Münchenwiler (2014) and Ueberstorf (2015), the two ProDoc conferences in Fribourg (2014 and 2015), and a range of methodological and substantive seminars and scientific workshops with sen- ior scholars, from which I have benefitted hugely. The lunch talks organized by Professor Pascal Pichonnaz allowed me to collect constructive feedback, nota- bly from Professors Michel Heinzmann, Alexandra Rumo, and Walter Stoffel, as well as from peer doctoral researchers. My thinking has also been stimulated by Professor Edward Swiderski’s fascinating philosophy course on ‘Interpreta- tion in the Arts’, which I audited in Spring 2014 at the University of Fribourg.