Rules Of Treaty Interpretation Research Articles

Reconciling International Climate Law and the Energy Charter Treaty through the Use of Integrative Interpretation in Arbitration

The conflicting objectives of the Energy Charter Treaty’s (ECT) protection of fossil fuel investments and climate change mitigation can reveal themselves in investor state dispute settlement (ISDS). As neither the modernization nor the termination of the ECT is likely, ECT arbitration will continue to exist. This article, therefore, examines the reconciling potential of integrative interpretation in climate relevant ECT arbitrations. An integrative interpretation is not only prescribed by the international rules of treaty interpretation, but can also be found in the practice of international dispute settlement. However, international climate law has not yet been taken into account by a single ECT tribunal. Although some hurdles and uncertainties remain in practice, examples of extraneous treaty use, as well as the reasoning of the judgments of recent climate litigation, show that ECT ISDS has the potential to reconcile climate change and energy investment interests in the future.

Translating Educational and Cultural Literacy Works under Berne, Ius Cogens, and Linguistic Genocide

The lack of works for educational and cultural literacy purposes in their own languages threatens the cultural survival of many vulnerable minority and indigenous groups worldwide. Translation could satisfy related access needs. A strict reading of international copyright law, however, does not facilitate the translation of works into other languages. Yet, it is often forgotten that, in accordance with the integration rule of treaty interpretation, the Berne Convention, and other relevant international intellectual property instruments, would have to be read in the light of internationally protected linguistic human rights in education and for cultural literacy. This mechanism could go some way towards assisting the easier translation of (parts of) works for the stated purposes into other languages. The argument made in this article, however, is that a harmonious reading of existing international copyright law with international human rights law cannot go as far as to sufficiently resolve the access needs of vulnerable groups speaking an endangered language, insofar as translated texts are concerned. In fact, it is contended that the existing regulation of translation under international copyright law is so inimical to the survival of vulnerable groups and their languages that it must be held to promote cultural or linguistic genocide. For that reason, the relevant copyright rules must be considered to conflict with ius cogens, that is, peremptory norms of international law, and to be void in their application to neglected languages. The article makes suggestions as to how countries could design national copyright law regulating translation rights and limitations and exceptions in a way that facilitates translation generally, and into neglected languages specifically. These suggestions are based on a reappraisal of the true character of translation, which must be seen to be highly transformative in nature and resulting in the creation of autonomous new works.

The Doctrines of Margin of Appreciation and Evolutive Interpretation: A Review of the European Court of Human Rights

The European Convention for the Protection of Human Rights and Fundamental Freedom (ECHR) - the focus of this work - in its conceptualisation as a “living instrument” and a bulwark against human rights abuse in Europe, has been construed with different canons of interpretation by the European Court of Human Rights (the Strasbourg Court), including the doctrines of the Margin of Appreciation and the evolutive interpretation. This work aims to review the doctrines of the Margin of Appreciation and Evolutive Interpretation from the jurisprudence of the Strasbourg Court by attempting a foray into the debates emanating from the court’s interpretative jurisprudence. It also interrogates how the ECHR is interpreted in the context of the Vienna Convention on the Law of Treaties (VCLT). The method adopted is doctrinal, with a critical and analytical approach that involves desk and library research. The work relies on primary and secondary materials such as relevant case laws of the Strasbourg Court, legislations, textbooks, journal articles, conference proceedings/papers, online documents, and news to critically evaluate the significance of the doctrines of the Margin of Appreciation and Evolutive Interpretation to the realisation of the objectives of the ECHR. The article investigates how the Strasbourg Court employs the doctrines of the margin of appreciation and evolutive interpretation in achieving the objectives and purpose of the ECHR. The work finds that regardless of their criticism as judge-made doctrines without normative basis, the doctrines of the Margin of Appreciation and Evolutive Interpretation as applied by the Strasbourg Court align with the rules of treaty interpretation as per the VCLT and, thus, remain the best canon of interpretations befitting for the ECHR. This is so considering that interpretation and applications of laws are undertaken in an ever-changing world that requires dynamic laws that could adapt to new situational contexts that are not initially contemplated at the time of treaty negotiations and formations.

Hersch Lauterpacht and language in the international law of treaty interpretation

The contribution addresses a lesser-known chapter in the history of the rules on the interpretation of treaties: the role played by Hersch Lauterpacht as Rapporteur at the Institut de Droit International on the topic of treaty interpretation. The work of the Institut on this topic was situated within the general effort to progressively develop and codify the rules of international law, a movement itself inspired by the idea of codification that unfolded during the nineteenth century mainly in continental Europe. After the Second World War, Lauterpacht initiated the study of the topic of treaty interpretation both at the Institut and at the International Law Commission (ILC). As Rapporteur at the Institut, Lauterpacht provoked a remarkable controversy by proposing to place the emphasis, in the process of interpretation, on the travaux préparatoires rather than on the text of the treaty. Although the 1956 resolution of the Institut did not follow Lauterpacht in this respect, the work of the Institut nevertheless proved to be a catalytic event leading towards the integrative conception of the rules of interpretation which the ILC developed in the 1960s while preparing the Vienna Convention on the Law of Treaties. The Lauterpacht episode also marked a change of focus with regard to the addressees of the rules of treaty interpretation from intergovernmental interaction towards judicial decision-making.

The right to regulate and the interpretation of the WTO Agreement

ABSTRACT In contrast to international investment tribunals, World Trade Organization (WTO) adjudicators have been reluctant to acknowledge the inherent right to regulate under international law explicitly. Policy-based considerations arising from such a right have not been viewed as a standalone component under interpretive analyses in WTO dispute settlement. Instead, they have been integrated only to the extent they find expression in the treaty. This article explores how, on occasion, WTO adjudicators have departed from this orthodox approach by choosing to proactively interpret the WTO Covered Agreements in a way that presupposes a States’ right to regulate, even where this may seem contrary to, or unsupported by, the treaty text. In these cases, the question has not been whether such a right subsists within substantive WTO disciplines, but rather how such a right can be read into these disciplines in a manner that comports with the ordinary rules of treaty interpretation. While this unorthodox approach has resulted in interpretations that appear unclear and uncertain, these outcomes are ultimately explicable in terms of a general principle of regulatory autonomy that can form the basis for more principled interpretive choices.

The Inspector-General of the Australian Defence Force Afghanistan Inquiry Report and the applicability of Additional Protocol II to intervening foreign forces

AbstractThis article critiques the articulation of the legal framework applicable to Australian Defence Force operations in Afghanistan found in the Inspector-General of the Australian Defence Force Afghanistan Inquiry Report (Brereton Report). In particular, using the Australian experience in Afghanistan as a case study, the article argues, on the basis of the rules of treaty interpretation, that where a foreign State party to Additional Protocol II (AP II) intervenes in a non-international armed conflict (NIAC) to which AP II applies, that foreign State is bound by AP II, in addition to the host State and non-State armed actors that are parties to the NIAC. The article concludes by outlining the reasons why the Brereton Report's silence in relation to AP II matters.

‘Objects’? The Legal Status of Computer Data under International Humanitarian Law

Abstract This article discusses whether computer data constitutes an ‘object’, in the meaning of this term under international humanitarian law (IHL). After providing background on what is meant by ‘computer data’, and on the significance of any determination whether computer data constitutes an ‘object’ for the purposes of IHL, the article proceeds to consider the meaning of the term ‘object’ as found in the First Additional Protocol to the Geneva Conventions (API). Recourse is made to the customary rules of treaty interpretation while focusing on both the English and French versions of API. The ordinary meaning of the term ‘object’ in its context in API solely connotes material things, thus excluding computer data. Moreover, recourse to the object and purpose of API, or to so-called ‘evolutionary’ interpretation, does not lead to a different conclusion. Considering the importance of customary international law for states non-parties to API, and for the purposes of non-international armed conflicts, the article proceeds to analyse whether computer data constitutes an ‘object’ for the purposes of custom. The article analyses the development of the term ‘object’ in legal discourse over the past century in determining what states intended this term to mean, and finds that here, too, states considered ‘objects’ in the context of IHL to be material things. It also explains that there is no apparent trend among states as to whether data constitutes an ‘object’, whereas the paucity of official government statements is far from the necessary volume for it to carry particular legal significance.

Lodestar in the Time of Coronavirus? Interpreting International Obligations to Realise the Right to Health During the COVID-19 Pandemic

ABSTRACT While the right to health has gained significant momentum in international law over the past two years, there is little clarity on what it means for States to comply with this right in times of COVID-19. Taking Articles 2(1) and 12 of the International Covenant on Economic, Social and Cultural Rights as a starting point, our article follows an approach guided by the rules of treaty interpretation under the Vienna Convention on the Law of Treaties to suggest how right to health obligations to prevent, treat and control infectious diseases should be interpreted in relation to COVID-19, and how these obligations interact with general obligations of immediacy, progressive realisation, minimum core and international assistance and cooperation in this context. This article makes a novel contribution to clarifying the right to health during COVID-19, thus enhancing capacity for the oversight of this right; its incorporation in global health law; and the understanding of its corresponding obligations in future global health emergencies.

Examining the Scope of Nuclear Weapons-Related Activities Covered under the Environmental Remediation Obligation of the Treaty on the Prohibition of Nuclear Weapons

AbstractThe entry into force of the Treaty on the Prohibition of Nuclear Weapons (TPNW) in January 2021 has sparked much discussion of the Treaty's positive obligations under Article 6. But while victim assistance under Article 6(1) has received considerable attention, the environmental remediation obligation within Article 6(2) remains underexplored. Filling this gap, this article examines a specific issue relating to environmental remediation under Article 6(2): the scope of nuclear weapons-related activities captured by the obligation imposed upon TPNW parties. Ultimately, it is revealed that significant ambiguity exists as to the scope of activities covered when applying the rules of treaty interpretation of the 1969 Vienna Convention on the Law of Treaties. After offering some policy arguments both for and against a broad interpretation, this paper recommends that TPNW parties should begin to advance and clarify their positions on this issue in order to clearly identify the scope of Article 6(2).

The Right to Family Reunification of Children Seeking International Protection under the Convention on the Rights of the Child: Misplaced Reliance on Travaux?

Abstract This article focuses on a unique provision, article 9 of the Convention on the Rights of the Child (CRC), which stipulates a right to family reunification for all children, including those seeking international protection. Relying on the rules of treaty interpretation of the Vienna Convention on the Law of Treaties (VCLT), the article argues that the desirable interpretation of article 9 prescribes a positive obligation upon States to provide entry to the territory of a State for the purposes of family unity. It also challenges the prevailing academic view that only article 10 of the CRC applies in the migration context, while article 9 of the CRC is applicable exclusively within State borders. The article contends that the text of these provisions, as well as the context of the CRC, does not support the opinion of a considerable number of scholars, who argue that children seeking international protection fall outside the scope of article 9 of the CRC. It suggests that the interpretation of article 9 of the CRC, using the proper interpretative methodology of the VCLT, demands the articulation of a distinctive child-centred approach to family reunification and a presumption against family separation of children seeking international protection.

Using the flexibilities of Article 30 TRIPS to implement patent exceptions in pursuit of Sustainable Development Goal 3

AbstractDespite over 25 years passing since TRIPS entered into force, the full potential of the patent exceptions provision under Article 30 TRIPS (Article 30) is yet to be realised. The hesitation by developing states to implement new patent exceptions in their domestic laws has presented a barrier to reconciling the tension between protecting patent rights and achieving access to essential medicines for all as committed by states under Sustainable Development Goal 3 (SDG 3). This article addresses the uncertainty of the interpretation of Article 30 through a doctrinal analysis of treaty interpretation rules and the recent Australia‐Tobacco Plain Packaging decisions. It proposes an original interpretation of Article 30 that permits public interest considerations, and uses this interpretation to justify a proposed stockpiling exception for pandemic and epidemic preparedness aimed at facilitating access to essential medicines to achieve SDG 3. Accordingly, developing states should feel more confident about implementing patent exceptions tailored to their public interest needs in pursuit of SDG 3.

The Significance And Utility of the Rules of Treaty Interpretation, as Encapsulated in the 1969 Vienna Convention on the Law of Treaties, for the Purpose of Ascertaining the Meaning of Treaty Provisions

The interpretation of treaties is a complicated and problematic question at times. It is vital to interpret the law accurately in order to ascertain the correct meaning of treaty provisions and terms to provide a precise application. Consequently, rules of treaty interpretation play a significant role in purpose of finding distinct meaning of treaty provisions which is critical for both in the implementation stage and in mending any disputes afterwards. The aim of the treaty interpretation rules included in the 1969 Vienna Convention on the Law of Treaties (VCLT) is to bring precision and transparency to the agreements between member states. Therefore, in this paper the significance and the utility of the rules of treaty interpretation set in the 1969 Vienna Convention will be considered. This will be done by briefly considering the background of the convention. Then the rules of interpretation laid in article 31-33 such as ordinary meaning, context, purpose and object will be analysed. Additionally, the usefulness of these articles will be critically analysed with adequately supported legal opinions and a broad use of case law. This paper will claim that the rules of treaty interpretation of the VCLT is an extremely important tool in the interpretation of treaties.

The Human Rights Approach to the Refugee Definition: Rising Sun or Falling Star?

Abstract Until recently, the human rights approach to the refugee definition appeared destined to become a permanent feature of international refugee law. Now, however, doubts have set in. The object of this article is to address the main criticisms that have been levelled and to seek to put them in a wider perspective, reflecting briefly on where the law on refugee status is heading now that the 1951 Refugee Convention has entered its eighth decade. To this end, this article commences with a description of the human rights approach and a brief summary of how and why it came to become the ‘dominant’ approach and its underlying justifications. It then turns to consider the major criticisms raised, breaking these down into three clusters. The first cluster seeks to argue that such an approach is not warranted by proper application of the rules of treaty interpretation enjoined by the 1969 Vienna Convention on the Law of Treaties. The second cluster identifies a number of other conceptual concerns: that such an approach depends on extraneous standards that lack refugee specificity; that it substitutes one set of indeterminate terms for another (for example, torture as one form of persecution); that it is unduly complex and unwieldy; that it wrongly assumes an equivalency between international refugee law and international human rights norms; and that it promotes a ‘principle of surrogacy’ that lacks any clear foundation. A third cluster dwells on the deficiencies of the human rights approach as a paradigm when examined from an empirical and comparative perspective: its failure to have become entrenched at a global level; its ‘sheer variety’ and lack of any clear contents; and its failure to help with difficult questions of refugee law. The article seeks to rebut these criticisms one by one and, in the course of doing so, to highlight the ways in which, far from being in decline, the human rights approach is a rising sun rather than a falling star.

In Dubio Mitius: Advancing Clarity and Modesty in Treaty Interpretation

Abstract The principle of in dubio mitius stipulates that if treaty interpreters have doubts about the correct meaning of a provision, they should adopt the interpretation that imposes the less demanding obligation. Although the principle is commonly rejected by scholars, it keeps surfacing in international legal practice. This article describes the history of the principle and provides an overview of its treatment by international courts and tribunals. It then argues that in dubio mitius can be of renewed relevance, now that the legitimacy of international courts and tribunals has become increasingly controversial. The principle recognizes that some questions of treaty interpretation may not have a single permissible answer, even after an application of the customary rules of treaty interpretation, and instead allow for legitimate disagreement or ‘doubt’. In such circumstances, in dubio mitius provides treaty interpreters with a solution, advising them to limit the scope of vague provisions to a normative core that can be deduced with sufficient certainty. In doing so, the principle acknowledges that international courts and tribunals lack the authority to expand international law in the face of legitimate disagreement within and among states.

Global Telecom Holding v. Canada: Interpreting and Applying Reservations and Carve-Outs in Investment Treaties

Within investment treaties, reservations and carve-outs perform a crucial role in balancing investment protection and liberalization with competing regulatory interests of States. While carve-outs for taxation matters have been interpreted and applied by a significant number of investment treaty tribunals, carve-outs concerning other issues and reservations have been adjudicated much less frequently. The recent Award in Global Telecom Holding v. Canada raises several key questions of treaty interpretation concerning a reservation by Canada in the Canada–Egypt Bilateral Investment Treaty (BIT), and a carve-out, which removed from investor-State arbitration decisions by either Party not to permit the establishment or acquisition of a business enterprise. This case comment critically analyses the approach to interpreting reservations and carve-outs adopted in the Award and the associated Dissenting Opinion. I suggest that it is through the application of the ordinary rules of treaty interpretation that adjudicators will locate the appropriate limits of reservations and carve-outs, and there is little justification for adopting a restrictive interpretation of such provisions. The case also demonstrates that interpretative inferences based on one treaty party’s other investment treaties must be approached with care. reservations, carve-outs, exceptions, treaty interpretation, national treatment, national security

The Right to Family Reunification of Children Seeking International Protection under the Convention on the Rights of the Child: Misplaced Reliance on Travaux?

The article focuses on a unique provision, Article 9 of the Convention on the Rights of the Child (CRC), that stipulates a right to family reunification for all children, including the ones seeking international protection. This article relies on the treaty interpretation rules under the Vienna Convention on the Law of Treaties (VCLT) and argues that the desirable interpretation of Article 9 prescribes a positive obligation upon States to provide entry in the territory of a State for the purposes of family unity. It also challenges the prevailing academic view that only Article 10 of the CRC applies in the migration context, while Article 9 of the CRC is applicable exclusively within the State borders. The article contends that the text of these provisions, as well as the context of the CRC do not support the opinion of a considerable number of scholars, who argue that children seeking international protection fall outside the scope of Article 9 of the CRC. It suggests that the interpretation of Article 9 of the CRC, using the proper interpretative methodology under the VCLT, demands the articulation of a distinctive child-centred approach to family reunification and presumption against family separation of children seeking international protection.

‘Objects’? The Legal Status of Computer Data under International Humanitarian Law

This paper discusses whether computer data constitutes an ‘object’, in the meaning of this term under international humanitarian law (IHL). The paper begins by providing background on what is meant by ‘computer data’, explaining that the entirety of a computer’s functioning, and the content stored on it, depends on data, but that data itself is not tangible. The paper then describes the significance of any determination whether computer data constitutes an ‘object’ for the purposes of IHL, explaining the importance of the concept of ‘object’ in the application of rules relating to distinction, proportionality and precautions. At the same time, it recalls that there are rules of IHL that may protect computer data serving certain functions, the application of which is not dependent on whether data constitutes an ‘object’. The paper then proceeds to consider the meaning of the term ‘object’ as found in the First Additional Protocol to the Geneva Conventions (API). Recourse is made to the customary rules of treaty interpretation, enshrined in articles 31-33 of the Vienna Convention on the Law of Treaties, while focusing on both the English and French versions of API. The ordinary meaning of the term ‘object’ in its context in API solely connotes material things, thus excluding computer data. Moreover, recourse to the object and purpose of API, or to so-called ‘evolutionary’ interpretation, does not lead to a different conclusion. Considering the importance of customary international law for states non-parties to API, and for the purposes of non-international armed conflicts, the paper continues to address the question whether computer data constitutes an ‘object’ for the purposes of custom. The paper analyses the development of the term ‘object’ in legal discourse over the past century in determining what states intended this term to mean, and finds that here, too, states considered ‘objects’ in the context of IHL to be material things. It also explains that there is no apparent trend among states as to whether data constitutes an ‘object’, and the paucity of official statements on the part of states is far from the necessary volume for it to carry particular legal significance.

Additional Protocol II: Elevating the minimum threshold of intensity?

AbstractThis paper examines the notion of intensity in the context of common Article 3 and Additional Protocol II (AP II) to the Geneva Conventions in order to establish whether AP II demands a different intensity threshold from the minimum threshold of intensity contemplated in common Article 3. The paper considers the question of whether the inclusion of the term “sustained” in the phrase “sustained and concerted military operations” intrinsic to the threshold in Article 1(1) of AP II introduces a temporal requirement in addition to mere protracted armed violence. The paper argues that the inclusion of the term “sustained” in Article 1(1) of AP II potentially demands prolonged protracted armed violence. The research aims to contribute to the existing literature on the notion of intensity demanded by the scope of application inherent in AP II through an interrogation of the phrase “sustained” military operations by employing the rules of treaty interpretation and by examining relevant case law and scholarly debate. In this way, the author hopes to contribute towards filling a lacuna with regard to the minimum threshold for intensity in the context of treaty law concerned with the classification of non-international armed conflicts.

Beyond Powder Kegs and Crystal Balls: Finding Meaning in the Appellate Body’s Interpretation of WTO Law

This article seeks to establish the interpretative methodology used by the WTO Appellate Body and panels in deciding cases. The modern WTO dispute settlement system has been the subject of great criticism, including allegations of judicial activism and use of judicial precedent. These perspectives are founded upon a false theoretical dichotomy, whereby the WTO system is viewed either as a global constitutional system or, alternatively, that its rules are subsidiary to a host of other values and norms, including environmental protection, human rights and national regulatory choice. First, the modifications in institutional architecture under the dispute settlement system are traced and discussed. This includes an analysis of treaty changes, the organisation and structure of panels and the adoption of reports. Subsequently, an analysis of WTO/GATT jurisprudence is made to ascertain the various legal sources used, the normative hierarchy established, the application of VCLT provisions and other rules of treaty interpretation, the use of evolutionary interpretation and the significance of special rules. This Section relies on case law and academic literature. Finally, the question of the fragmentation of international law is addressed with respect to treaty interpretation. This Section analyses legal pluralist arguments, particularly by Weiler, Fischer-Lescano and Teubner and establishes legitimate responses to their arguments. Moreover, certain similarities are established with other international courts and tribunals.

“Or any other similar criteria”: Towards advancing the protection of LGBTQI detainees against discrimination and sexual and gender-based violence during non-international armed conflict

AbstractDiscrimination and sexual and gender-based violence committed against lesbian, gay, bisexual, transgender, queer and intersex (LGBTQI) detainees remains one of the most pressing contemporary humanitarian challenges. This article focuses on the interpretation of the phrase “or any other similar criteria” as contained in Article 3 common to the four Geneva Conventions, upon which adverse distinction is prohibited, in order to qualify sexual orientation and gender identity as prohibited grounds of adverse distinction. The interpretation of “or any other similar criteria” will be embarked upon by employing the general rule of treaty interpretation provided for in the Vienna Convention on the Law of Treaties, so as to qualify sexual orientation and gender identity as “any other similar criteria” and ultimately to realize the protection of LGBTQI detainees against discrimination and sexual and gender-based violence during non-international armed conflict.