Rules Of Treaty Interpretation Research Articles

Treaty Interpretation in Investor-State Arbitration

This study examines the exercise of discretion by investor-state arbitral tribunals in treaty interpretation. It builds upon the premise that it is an illusion to pursue a single right answer to a given legal problem when the human experience is marked by an incomplete and fragmented perception of reality. Adjudication and legal interpretation, therefore, are not understood in this study as a matter of discovery or illumination, but as a matter of choice and persuasion over choices made. Even still, the exercise of hermeneutical discretion does not amount to a license for arbitrary behavior. There may not be one single correct reading of a treaty, but certainly not all interpretations of a treaty are possible. Notably, the semantic horizon of treaty interpreters is a finite one, as the methodology established by the Vienna Convention on the Law of Treaties (“VCLT”) constrains the hermeneutical choices open to interpreters. Article 31 lays out a general rule of treaty interpretation, while Article 32 provides supplementary means of interpretation that can be used either to validate an outcome reached through Article 31 or, in exceptional circumstances, to autonomously determine the meaning of a treaty. Within this framework, this study examines interpretative practices of investment-treaty arbitral tribunals in light of the interpretive regime established by the VCLT, exploring their conformity or non-conformity to that regime. Investment Arbitration; Investor-State Dispute Settlement; Treaty interpretation; Discretion; Vienna Convention on the Law of Treaties; VCLT; Article 31, VCLT; Article 32, VCLT.

BetweenSollenandSein: The CJEU’s reliance on international law in the interpretation of economic agreements covering occupied territories

AbstractThis contribution focuses on the Court of Justice of the European Union (Court or CJEU) reliance on international law in cases involving economic agreements covering occupied territories. In its earlier case law, the Court adopted a formalistic approach by ignoring the broader international legal framework of the dispute in an effort to achieve conformity with international law, while at the same time avoiding being drawn into political storms. The article continues by identifying an even more worrisome trend in the Court’s latest judgments in theFront PolisarioandWestern Sahara Campaign UKcases. In these two cases the Court showed its willingness to stretch the international rules of treaty interpretation to a breaking point in order to avoid pronouncing on the politically sensitive question of the de facto application of the EU’s agreements with Morocco in the territory of Western Sahara. The article concludes by asserting that the Court’s line of argumentation brings another dimension to theVölkerrechtsfreundlichkeitdebate. The classical, binary understanding of the Court’s approach as ‘open/hostile’ to international law only provides us with a partial picture of how international law was actually used in these cases. The Court’s apparent willingness to rely on international law as a heuristic device to reinforce an outcome that radically departs from the logic and structure of international law and international legal argumentation requires a more in-depth engagement with both the content of the international law rules invoked in those judgments and with the Court’s use of such rules.

Non-Proliferation Treaty and Nuclear Disarmament

Abstract A few final documents adopted by the Review Conferences of the Nuclear Non-Proliferation Treaty (‘NPT’) include important references to nuclear disarmament and to Article VI of the NPT. It is frequently assumed or claimed that these references amount to subsequent agreements as to the interpretation of Article VI. However, such a view is difficult to maintain. With the help of the 2018 Draft Conclusions on subsequent agreements and practice, this article seeks to establish two conditions that such final documents ought to satisfy if they are to be treated as subsequent agreements under Article 31 of the Vienna Convention on the Law of Treaties (‘VCLT’). The analysis suggests that the final documents in question do not satisfy such conditions. Based on this evaluation, the article also explores other theoretical frameworks both within and without treaty interpretation rules, that can adequately take into account the final documents of the NPT Review Conferences in discussing nuclear disarmament in international law.

Restrictive Interpretation of Investment Treaties: A Critical Analysis of Arbitral Case Law

This article critically discusses the recourse to the principle of restrictive interpretation (in dubio mitius) by treaty-based investor-state arbitral tribunals. Although its status as a rule of international law is at best controversial, in dubio mitius has been applied by a number of arbitral tribunals interpreting umbrella clauses and most-favoured-nation (MFN) provisions contained in investment treaties. This article shows that restrictive interpretation is inappropriate and undesirable. It highlights, first of all, that no rational justification for in dubio mitius exists and that the sovereignty-based rationale put forward is obsolete, illogical and largely dysfunctional. It also shows that restrictive interpretation frequently clashes with other, more fundamental, rules of treaty interpretation and that in dubio mitius interpretation of investment treaties has an inherently discriminatory effect on investors. Investment Treaties, Treaty Interpretation, Restrictive Interpretation, In Dubio Mitius, Umbrella Clause, Mfn Provision, State Sovereignty, Investment Law

Two Sides of One Coin: The US-Guatemala Arbitration and the Dual Structure of Labour Provisions in the CPTPP

This article revisits and critically analyses the panel’s decision and reasoning in the dispute between the United States and Guatemala under the labour provisions of the Dominican Republic–Central America Free Trade Agreement vis-à-vis the treaty interpretation rules under the Vienna Convention on the Law of Treaties. It further seeks to draw implications for the construction of labour provisions of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). The article sheds light on the normative and theoretical rationales that underlie tradelabour linkages in general, and the labour provisions under such free trade agreements in particular. Ultimately, the paper makes a case for the dual structure of conditionality-based labour provisions, a legal characteristic that demands that each of them pursue two different goals, first, protecting labour rights as human rights (social goal) and second, securing the condition of fair competition in trade/ investment and preventing a race to the bottom in labour regulation (economic goal). With this proposal, it attempts to put the long-overlooked, deontologically normative value that labour provisions pursue in its right place without prejudice to their role of levelling the playing field.

Gender and the boundaries of international refugee law: Beyond the category of ‘gender-related asylum claims’

The adoption of gender guidelines aiming to ensure consistency in gender-sensitive interpretation of the UN Refugee Convention definition demonstrates a general acceptance that gender is relevant to the question of who is a refugee. However, there is evidence that States have failed to adequately undertake the process of gender-sensitive interpretation and implement these guidelines comprehensively. Accordingly, this article argues that the general rule of treaty interpretation in international law enables the identification of a legal obligation of State Parties to the Refugee Convention to take gender into account when interpreting the refugee definition. The precise scope and nature of the duty of States to take gender into account is identified through a dynamic approach to interpretation by reference to international human rights norms. Overall, this article claims that the conceptualisation of a legal obligation in international law to interpret the refugee definition in a way that takes gender into account is inhibited by the development of a distinct category of ‘gender-related asylum claims’ within gender and refugee law scholarship. Consequently, this article presents a challenge to the borders implicit in the category of ‘gender-related asylum claims’ by revisiting the boundaries of international refugee law.

Baselines under the International Law of the Sea

AbstractBetween 2008–2018 the International Law Association (ILA) Committee on Baselines under the International Law of the Sea produced two reports on the normal baseline (2012) and straight and archipelagic baselines (2018). The Sofia Report (2012) is organised around the interpretation of Article 5 of the 1982 United Nations Convention on the Law of the Sea (LOSC) concerning the normal baseline. Under the leadership of Committee Chair Judge Dolliver Nelson, the Committee was asked to identify the existing law on the normal baseline and to assess the need for further clarification or development of that law in light of substantial coastal change. The Report applies the rules of treaty interpretation, including an assessment of the ordinary meaning of the terms of the treaty and, because those leave the meaning ambiguous, the preparatory works of the normal baseline provision. The Report then turns to address the application of the existing law to changing coasts and concludes that the law on the normal baseline is inadequate to address problems of substantial territorial loss. The Sydney Report (2018) is organised around a common methodology in assessing Articles 7, 8, 10, 13, 14 and 47 of the LOSC concerning straight baselines, closing lines, and straight archipelagic baselines. Each analysis seeks to provide some background to the drafting of the Article, analysis of the text, assessment of state practice, relevant case law, and a summary of the commentary by publicists. The Report then moves to address certain cross-cutting or global issues that are relevant to a contemporary analysis of straight and archipelagic baselines, before reaching conclusions.

The ‘cash value’ of the rules of treaty interpretation

AbstractThe rules of treaty interpretation are ordinarily met with scepticism not only by critically-minded international law theorists, but also by mainstream international legal scholars who otherwise believe in international law’s normative power. The objective of this article is to inquire whether, despite their much-discussed shortcomings, the rules of treaty interpretation have any ‘cash value’ in the sense given to this expression by one of the founding fathers of the philosophy of pragmatism William James, in other words, whether they make any practical difference. To do so, this article revisits the traditional understanding of the rules of treaty interpretation and argues that they cannot directly bridge the gap between the signifier and signified, but rather are designed to impose a ‘common discipline’ with respect to the admissible means that can be used in treaty interpretation.

Managing Fragmentation between International Trade and Investment Law and Global Priorities for Noncommunicable Disease Prevention in Food and Alcohol

This article examines three ways in which instruments developed by international health organizations might be used to manage fragmentation between health and international trade and investment law in the context of regulating food and alcohol as noncommunicable disease risk factors. These are: by modifying or overriding trade and investment obligations, affecting interpretation and fact finding, and establishing cooperative inter-institutional processes. The article assesses the advantages and disadvantages of each of these approaches for managing fragmentation under the rules of treaty interpretation and dispute settlement. It argues that while much of the discussion of fragmentation between trade and health focuses on treaty interactions, many of the actual uses of health instruments are not necessarily dependent on their formal legal status. It then proposes several features of international instruments that might strengthen or support these uses, whether through binding or through non-binding instruments.

Human Rights as a Basis for Health Prevention and Promotion: Lessons Learned From Children's Rights and Tobacco Control

Background: Exposure to tobacco smoke and tobacco smoking leads to numerous adverse health and developmental outcome including widespread cancers. The tobacco epidemic primarily roots in childhood as many adult smokers have started before the age of 18. Health prevention and promotion laws and policies are key to positive health change. Indeed, tobacco control legislation has positively impacted on child health and human rights may play a valuable basis and mechanism to foster health prevention and promotion strategies. Aim: To gain new knowledge on the added value of human rights law in fostering health prevention and promotion strategies by reference to specific findings in the case of tobacco control and children's rights. Methods: Literature research and document analysis. Interpretation on the basis of the treaty interpretation rules of the Vienna Convention on the Law of Treaties (art. 31-32). Results: Human rights are increasingly standard setting in the field of health prevention and health promotion in general. Even though human rights law largely includes open-ended norms, it provides for key legal obligations to protect child (and ultimately adult) health against the negative consequences of tobacco. The 1989 Convention on the Rights of the Child demonstrates that governments should take into account the best interests of the child, protect and promote the life, survival, and development of children, the right to health and its underlying determinants, and regulate the tobacco industry to the extent that it does not harm children's rights including health. Conclusion: The human rights framework may a valuable mechanism to support health prevention and promotion as it includes legally binding and enforceable obligations.

If It Ain't Brexit Don't Fix It

The United Kingdom and European Union are struggling to reach an agreement within the two-year period of negotiations. As the first country to depart from the European Union, the outcome of the British exit will set a precedent on dealings with future departing Member States. The Treaty of Lisbon, particularly Article 50, governs the procedural requirements for leaving the European Union. Examined through the lens of textualist principles and international law norms, the Treaty of Lisbon calls for an agreement to be reached between the Union and departing Member State. No European Union guidance documents provide for the default position should talks fail. This Article argues some sort of deal is required and in the best interests of everyone involved. To reach this conclusion, this Article briefly details the United Kingdom’s involvement with the European Union and the treaty provisions governing its participation with the Union. This Article uses rules of treaty interpretation in coming to the conclusion that a deal is pre-requisite to Brexit. It also highlights the increasingly more likely, and devastating, consequences of failing to meet this obligation.

The Three Traditional Approaches to Treaty Interpretation: A Current Application to the European Court of Human Rights

The Vienna Convention on the Law of Treaties sets the rules of treaty interpretation in articles 31-33. Yet these rules are quite vague, and they leave a lot of room for judicial discretion. The European Court of Human Rights (ECHR) has developed its own version of these rules of interpretation — a version that tracks the three traditional approaches to treaty interpretation: the textual approach, the subjective approach, and the teleological approach. Looking at the practice of the ECHR through the lens of these three traditional approaches highlights the logic of some of the court's interpretive choices, including its doctrine of deference: the Margin of Appreciation.

Applicability of the Excess of Power Doctrine to the ICJ and Arbitral Tribunals

Abstract The problem with regard to the excess of power doctrine, one of the most controversial issues in the procedure of international courts and tribunals, was invoked in certain recent cases, such as the Bosnian Genocide case and the South China Sea case. To solve this problem, it is necessary to examine two relevant legal notions: the principle of competence-competence; and the principle of res judicata. First, the principle of competence-competence has been regarded as a relative power of arbitral tribunals in the sense that it is limited by the application of the rules of treaty interpretation. This means that there are possibilities, in the substantive sense, of an excess of power even when the principle of competence-competence is applied. Second, the international jurisprudence has shown that the force of res judicata can be excluded by a post-award agreement of the parties. Thus, it is possible, substantively and procedurally, to examine the possibility of an alleged excess of power having been committed by an arbitral tribunal and this understanding has been accepted by the ICJ in its jurisprudence. On the contrary, the ICJ has denied the possibility of an excess of power by itself, on the basis of the absolute power of competence-competence and the principle of res judicata. Here, several problems remain unsettled with regard to the difference between the possibility of an excess of power by ad hoc arbitral tribunals and the possibility of an excess of power by the ICJ.

Does Exposure to Preparatory Work Affect Treaty Interpretation? An Experimental Study on International Law Students and Experts

Ample research has demonstrated that exposure to inadmissible evidence affects decision-making in criminal and civil cases. However, the difficulty of ignoring information in the context of legal interpretation has not been examined yet. Our study addresses the possible effects that exposure to preparatory work has on the interpretation of treaties. In the present article, we examine the ability of students enrolled in international law courses and of international law experts to ignore preparatory work when they are not allowed to use it. We found that exposure to preparatory work affected the students’ interpretation of treaties, while no such effect was found among the experts. These results reaffirm the practical relevance of the debate over the hierarchy between the rules of treaty interpretation. In particular, our study demonstrates that preparatory work can play a significant role in decision-making, depending on the legal rule that applies to the use of such materials. More generally, our study suggests that legal interpretation by students and experts is qualitatively different, and that international law experts might be better able than non-experts to discount irrelevant information in the process of treaty interpretation.

Taking the Rules of Interpretation Seriously, but Not Literally? A Theoretical Reconstruction of Orthodox Dogma

For international lawyers, the Vienna Convention rules of treaty interpretation are ‘the only game in town’; they have had the whip-hand for several decades now. Yet is this belief in the power(s) of the Vienna rules justified? Behind the claim that they are the law lies a theoretically much more interesting, yet fundamentally unsustainable second argument. It is that rules of interpretation are somehow independent of – and replace – the legal epistemic process, the ascertainment of the law’s meaning-content. These rules are seen as serving a different function, i.e. to regulate the process of the applicative construction of meaning by the organs of international law. They are doctrine’s attempt to control how treaties are construed by tribunals. However, as a matter of legal theory there are severe limits to what such rules can do. Given these limits, we will reconstruct the possible meanings and uses of the Vienna Convention rules.

A Note on the Application of Article 234 of the Law of the Sea Convention in Light of Climate Change: Views from Russia

ABSTRACTThis note explores the nature of Article 234 of the 1982 UN Convention on the Law of the Sea in light of decreasing Arctic ice cover. Despite various readings and possible interpretations of Article 234, the principal source of the rules of treaty interpretation is the 1969 Vienna Convention on the Law of Treaties. The note concludes, based on treaty interpretation, that there are no legal grounds for changing the Arctic regime based on Article 234 in light of the decreasing ice cover in the Arctic.

The Use of Precedents in Investor-State Arbitration: A Legal Analysis

The Use of Precedents in Investor-State Arbitration: A Legal Analysis

Treaties of a Particular Type: The ICJ's Interpretative Approach to the Constituent Instruments of International Organizations

AbstractThe ICJ has confirmed that, on the one hand, the customary status of the general rule of treaty interpretation in the Vienna Convention on the Law of Treaties makes it applicable to the constituent instruments of all international organizations, but, on the other hand, constituent instruments are ‘treaties of a particular type’ with special considerations. This article examines the resultant implication that the Court adopts an approach to constituent instrument interpretation that supplements or modulates the approach provided for in the Convention. In doing so, it examines both the Advisory Opinions that respond to direct questions of constituent instrument interpretation, as well as Opinions and Judgments in which a question of constituent instrument interpretation is incidental to a dispute with respect to another treaty or general international law. The article identifies nine interpretative propositions used by the Court: (1) sufficiently clear text is conclusive; (2) the text cannot be nullified; (3) working documents (travaux préparatoires) afford auxiliary interpretation; (4) consistent practice precludes contrived interpretation; (5) to be consistent, practice need not be unanimous; (6) consistent institutional practice is determinative; (7) purpose can supplement text, but cannot contradict practice; (8) practice is interpretation, unless institutionally overruled; and (9) interpretation cannot be gratuitous. It is argued that to the extent the Court diverges from the Convention, it in fact allows for a more efficient and effective approach to constituent instrument interpretation and accords institutional practice particular prominence.

Holistic Approach of Treaty Interpretation: A Critique on China-Rare Earths

The holistic approach of treaty interpretation is an emerging manner in the last decade to apply international customary law of treaty interpretation in WTO practices of dispute settlement, in particular, the cases related to China. Currently, it is uncertain to apply this manner in WTO dispute settlement due to lack of expressed treaty provisions, which have drawn highly attentions of WTO Members and even resulted in controversies inside the Panel of China-Rare Earths. The analysis of this thesis demonstrates that the holistic approach involves in the customary rules of treaty interpretation. The separate opinion of one panelist in China-Rare Earths provides an example to apply the holistic approach, even though the Appellate Body gave no further explanation of this approach. China-Rare Earths indicates that the basic practices of dispute settlement since the establishment of the WTO remain unchanged, but, facing the new problems and challenges, the practitioners and the academies of the WTO Dispute Settlement must conduct more researches on holistic approach in order to develop the legal theory of treaty interpretation. It would be also benefited from relevant researches to improve Chinese capacity for responding to the WTO dispute settlement and other international dispute settlements by peaceful means.

Blurred Lines: Reading TRIPS with GATT Glasses

There is a need to clarify when jurisprudence developed under the General Agreement on Tariffs and Trade (GATT) and under World Trade Organization (WTO) agreements on trade in goods and services is applicable in disputes concerning the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Through the application of the general rule of treaty interpretation, this article identifies two main areas in which such jurisprudence can be applicable in TRIPS disputes. These comprise procedural issues arising under the DSU and substantive issues surrounding basic GATT principles as adapted in Part I of TRIPS. The author makes a case study of the panel report in US – Section 110(5) Copyright Act to explore the consequences of resorting to GATT concepts in the interpretation and application of a minimum standard for intellectual property protection in Part II of TRIPS, and cautions against use of such an approach in future TRIPS disputes.