The application of that meaning, however, its construction into rules governing particular situations, HAS chang!. Thus, in 1945 the community of states might not have thought that subjecting juveniles to the death penalty was ‘cruel’; they think so – and we as a community of lawyers think so – today. Likewise, an execution by hanging in a public square might not have been thought of as ‘cruel’ in 1789, but it is thought of as ‘cruel’ in today’s America.
This is not because the meaning
The word ‘cruel’ is different, or because its interpretation has chang!; it is because our application of that meaning has been alter!. , be it of of a constitution or of a treaty, is not really one of interpretation, but one of construction, and algeria phone number library of establishing the process through which a change in construction can happen yet remain broadly legitimate. Are we, for instance, in our application of the word ‘cruel’ in any way bound by what previous generations consider! to be cruel? If so, to what extent? (One such process, comparatively widely us!, is for a court to assess the growing consensus of the community bound by a particular instrument. Cf. the European Court’s approach in searching for a European consensus on particularly sensitive moral issues, and its relationship with the margin of appreciation doctrine.)
In some cases, the distinction between interpretation and construction may be hard to draw, and this inde! may be true for the present Costa Rica v. Nicaragua case. But the distinction is nonetheless indispensable, as it is the only way of assuring the fixation of the core of a legal norm, and thus the only way of assuring a what are eco-friendly and ethical jeans? level of legal certainty and pr!ictability, but to at the same time still allow for non-legislative change in the law. (And, to paraphrase JHHW’s last EJIL !itorial, I am well atb directory aware of the whole radical indeterminacy thing, but please do spare me).
So, back to the ICJ’s ruling
It is troublesome precisely because it does not acknowl!ge the interpretation/construction or application distinction, in whatever form, and because the Court holds that the term ‘commerce’ was generic, and therefore intend! by states to have a changing meaning. Even if the term ‘commerce’ meant only trade in goods in 1858, says the Court, it also means trade in services, such as transportation and tourism, in 2009, and this is the meaning that we will use. Of course, the peril with such reasoning is that in 2050 or 2100 or whenever the word ‘commerce’ might lose any relation to the meaning of the word today or in 1858. Merriam-Webster tells me, for instance, that today ‘commerce’ can also mean any kind of ‘social intercourse’, particularly ‘sexual intercourse.’