(Inter)Temporal Considerations in the Interpretative Process of the VCLT: Do Treaties Endure, Perdure or Exdure?

When interpreted, sometimes treaties have to go through a trial by fire and are found either to be ‘living instruments’ evolving alongside the relevant changes both in law and in facts or to have a ‘fixed’ meaning. The aim of the present article is to examine how temporal considerations find their way into the interpretative process and what are the effects on the treaties being interpreted. Do these changes in law and fact actually change the treaty itself, or are they merely a latent quality already existing in the treaty itself? Does time change the treaty, or does it merely ‘unfold’ it as Max Frisch would put it? All of these ideas, and the philosophical theories on identity and persistence connected to them, which explain the terms employed in the sous-titre of this article ‘Do Treaties Endure, Perdure or Exdure?’, will be addressed in Section 2. Based on the 1969 Vienna Convention on the Law of Treaties (VCLT) temporal considerations are almost ubiquitous in the structure of Articles 31-32 of the VCLT. The present article will focus mainly on the ‘points of entry’ of temporal considerations, and in particular those which are connected to the notion of inter-temporality. Two are the main points of entry of (inter)temporal considerations in the interpretative process: 1) Direct point of entry: Contemporaneity or Dynamic Interpretation and 2) Indirect point of entry: Intertemporal Law Considerations within Article 31(3)(c) In order to highlight the ties and overlaps between these two points of entry the present Article in Section 2 will clarify certain concepts central to the following analysis. Section 3 will provide an overview of the preparatory work of the VCLT on intertemporal law, both as a separate issue (direct point of entry) and as an element of Article 31(3)(c) (indirect point of entry). In Section 4 the analysis will move on to an examination of the elements that weigh upon the judicial interpretative process and tip the scales either in favour of a dynamic/evolutive interpretation or in favour of the principle of contemporaneity. While in Sections 5, we will attempt to map the limits, if any, to which the judges are restricted when exercising dynamic/evolutive interpretation