A Contrario Interpretation in the Jurisprudence of the International Court of Justice

• Author: Abdulqawi Yusuf & Daniel Peat
• Position: Vice-President, International Court of Justice/Associate Legal Officer, International Court of Justice
• Pages: 1-18

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(2017) 3(1) CJCCL

A Contrario Interpretation in the

Jurisprudence of the International

Court of Justice

Abdulqawi A. Yusuf * & Daniel Peat**

In its recent judgments on preliminary objections in the cases of Alleged

Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea

(NicaraguavColombia)and the Question of the Delimitation of the Continental

Shelf between Nicaragua and Colombia beyond 200 nautical miles from the

Nicaraguan Coast (Nicaragua v Colombia), the International Court of Justice

(“ICJ”) had to deal with arguments based on a contrario interpretation. is form of

interpretation, according to which “the fact that a provision expressly provides for one

category of situations is said to justify the inference that other comparable categories

are excluded”, has been addressed several times in the jurisprudence of the Court and

its predecessor, the Permanent Court of International Justice (“PCIJ”). Yet, despite

assertions that the maxim of interpretation would “nd a place in the logic of the

nursery”, there remain fundamental questions about both its character and its operation.

is article addresses two of those questions: how has a contrario interpretation been

used in the practice of the PCIJ and ICJ, and how might we explain the importance

attributed to it?

* Vice-President, International Court of Justice.

** Associate Legal Ocer, International Court of Justice.

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Yusuf & Peat, A Contrario Interpretation of the ICJ

I. I

II. A ContrArio I   J   W C

III. T O  A ContrArio A

IV. C

I. Introduction

n its recent judgments on preliminary objections in the cases of

Alleged Violations of Sovereign Rights and Maritime Spaces in the

Caribbean Sea (Nicaraguav Colombia)1 (“Alleged Violations”) and the

Question of the Delimitation of the Continental Shelf between Nicaragua

and Colombia beyond 200 nautical miles from the Nicaraguan Coast

(NicaraguavColombia)2 (“Question of the Delimitation”), the International

Court of Justice (“ICJ”) had to deal with arguments based on a contrario

interpretation. is form of interpretation, according to which “the fact

that a provision expressly provides for one category of situations is said

to justify the inference that other comparable categories are excluded”,3

has been addressed several times in the jurisprudence of the Court and

its predecessor, the Permanent Court of International Justice (“PCIJ”).

Yet, despite assertions that the maxim of interpretation would “nd a

place in the logic of the nursery”,4 there remain fundamental questions

1. Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean

Sea (Nicaraguav Colombia), [2016] ICJ Rep 36 [Alleged Violations].

2. Question of the Delimitation of the Continental Shelf between Nicaragua and

Colombia beyond 200 nautical miles from the Nicaraguan Coast (Nicaragua

v Colombia), Preliminary Objections, [2016] ICJ Rep 32 [Question of the

Delimitation].

3. Alleged Violations, supra note 1 at para 37.

4. Lord McNair, e Law of Treaties, 1d (Oxford: Clarendon Press, 1961) at

399. Lord McNair uses the expression expressio unius est exclusio alterius

– literally, “expression of the one is exclusion of the other”. He considers

this to be synonymous with a contrario interpretation, with the latter

terminology more frequently adopted in continental Europe, at 400.