Rules Of Treaty Interpretation Research Articles

The Authoritative Interpretation Under Article IX:2 of the Agreement Establishing the World Trade Organization: Current Law, Practice and Possible Improvements

The Agreement Establishing the World Trade Organization reserves the right to adopt ‘authoritative interpretations’ of the multilateral trade agreements to the Ministerial Conference and the General Council. Given that, to date, this instrument has not been used, the present article intends to highlight its structural importance for the balance of powers within the legal system of the World Trade Organization. It identifies the use that could and should be made of it and reviews the practice so far. The article attempts to explain the reasons for the present lack of authoritative interpretations in the World Trade Organization and presents several options for the future. At the outset, this article explores the parameters that are relevant for this discussion, notably the possible scope and legal effects of an authoritative interpretation. Important questions are whether an authoritative interpretation is legally binding on all WTO Members, whether it may modify the existing law or whether the rules of treaty interpretation are relevant in the formulation of an authoritative interpretation, and whether its validity can be challenged in dispute settlement.

GATT Article XX and Proximity of Interest: Determining the Subject Matter of Paragraphs b and g

The interpretation of GATT Article XX has begun to play a critical role in defining the relationship among international trade law, international environmental law, and general international law. Different thresholds for provisional justification of trade measures under paragraphs XX(b) and (g) suggest that each paragraph should address different types of policies and measures. However, jurisprudence on paragraph XX(g) appears to make paragraph XX(b) somewhat redundant and raises the issue of whether paragraphs XX(b) and XX(g) have been interpreted in accordance with the rule of effective treaty interpretation. This article develops an analytical approach to take in deciding whether to address a trade measure under GATT paragraph XX(b) or (g), based on the proximity of interest between the country that applies trade restrictions and the environmental or health problem that is addressed. I propose that the subject matter be assigned based on the location of the environmental concern, with domestic concerns addressed in XX(b) and transnational or global concerns under XX(g). An analysis of Article XX, applying the rules of treaty interpretation of the Vienna Convention, supports this interpretation. The adopted body of GATT and WTO jurisprudence also supports this interpretation, with the exception of one case.

Fighting the Lone Wolf Mentality: Twenty-first Century Reflections on the Paradoxical State of American Indian Law

What survives of American Indian tribal sovereignty rests largely on decisions of the U.S. Supreme Court, which rely in turn on constitutional principles, various Indian treaties, federal statutes, and what amounts to judge-made federal common But the Court has historically been an enemy as much as an ally of Indian sovereignty, and today it seems intent on undermining what remains of the basic principles of American Indian In a remarkable reversal, the political branches of the federal and even some state governments are now (sometimes) more friendly than federal and state courts to Indian tribal interests.This article is part of a symposium marking the centennial of the Court's decision in Lone Wolf v. Hitchcock (1903), often called the Dred Scott of Indian law. Lone Wolf upheld Congress's plenary power to seize Native American lands and abrogate Indian treaties. Later decisions qualified Lone Wolf's extreme abdication of judicial scrutiny and signalled a partial and tentative judicial defense of tribal rights. Yet the Lone Wolf mentality survives and has even undergone a revival on the modern Court, largely at the instigation of Chief Justice Rehnquist.The article begins by holding up as examples three cases decided in 1999, by the U.S. Supreme Court, the Navajo Nation Supreme Court, and the California Supreme Court. The first two reaffirmed Indian sovereignty and treaty rights. The California court, dealing with an Indian casino issue, went against tribal interests over a strong dissent, but the decision quickly boomeranged as the people of California overruled their judges to allow vastly expanded gaming on Indian lands.The article then goes back in time to review Lone Wolf and its progeny, pointing out how even the Warren Court, as late as 1955, outdid Lone Wolf in showing disregard for Indian property rights under the Constitution. The article surveys several key cases after 1955. Some of these countered the Lone Wolf mentality, but they also reveal Rehnquist's growing influence. The Court in 1999, for example, reaffirmed Indian treaty rights in a 5-4 decision barely noticed except by Indian law specialists. But Rehnquist's dissent, among other startling moves, sought to resurrect an anti-Indian rule of treaty interpretation so dated and extreme it was rejected in 1905 by the same Court that decided Lone Wolf. Instead of construing relevant law in favor of Indian treaty rights, as the Court has at least purported to do since long before Lone Wolf, Rehnquist strained to uphold the legality of an Indian removal order dating from 1850.The article closes by discussing two cases decided in 2001 (one unanimous and one over a notably weak dissent) in which Rehnquist wrote or joined the Court's opinion. Both cut back Indian sovereignty in terms suggesting a triumphal revival of the Lone Wolf mentality in the new millennium, and both suggest that this revival faces little effective opposition on the Court.

The Interpretation of Decisions of International Organizations

In the present writer's view, certain decisions of international organizations are to be recognized as manifestations of international law in their own right; those, namely, which address themselves to the members of the relevant organization, or to some of them, and bind them as to their conduct. Being manifestations in written form, their interpretation may as much constitute a problem as does the interpretation of treaties. The main question, here, is whether the methods and rules of treaty interpretation also apply to the interpretation of these “conductdecisions” of international organizations.