Supplementary Means Of 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.

The Achmea Judgment and the Applicability of the Energy Charter Treaty in Intra-EU Investment Arbitration

Abstract The Energy Charter Treaty is the most frequently used investment treaty worldwide to launch investment arbitration against host states. The vast majority of disputes is of intra-European Union nature in that they involve an EU investor as claimant and an European Union member state as respondent. The recent Achmea judgment of the Court of Justice of the European Union may thus have ramifications for the Energy Charter Treaty. The judgment has triggered a heated legal and political debate within the European Union over the future of intra-European Union investment arbitration. In the context of this debate, the European Commission claimed that the application of the Energy Charter Treaty in intra-European Union investment disputes is based on an incorrect interpretation of this treaty. This article critically assesses the Commission’s statement by evaluating the travaux préparatoires of the Energy Charter Treaty as a supplementary means of interpretation. It finds that the European Union member states and the European Commission in all likelihood opted for a mixed ratification for legal reasons rather than to ensure its intra-European Union applicability. Indeed, the EU initially pushed for a disconnection clause to prevent the application of the Energy Charter Treaty in intra-European Union relations but dropped this request during the negotiations. At least from a historical perspective then, the Commission’s claim that the Energy Charter Treaty is not meant to apply in intra-European Union relations is inaccurate in that the European Union consciously accepted this possibility.

The legality of NATO's pursuit of regime change in Libya

ABSTRACTThis article examines the legality of NATO's pursuit of regime change in Libya as a means of enforcing UN Security Council (UNSC) Resolution 1973, which, while invoking the ‘responsibility to protect (R2P) doctrine, authorised ‘all necessary measures’ to protect civilians. Following an examination of the powers and limitations of the UNSC, the article employs the rules of interpretation of UNSC resolutions to evaluate whether NATO's pursuit of regime change was compatible with the ordinary meaning, object and purpose and supplementary materials pertaining to Resolution 1973. It concludes that while regime change in Libya could be reconciled with the Resolution's ordinary meaning and object and purpose, it was not supported by supplementary means of interpretation, most notably statements made by states over the course of its adoption. This reveals a need for further discussion regarding the existing or ideal relationship between regime change, UNSC Chapter VII mandates and R2P.

Rules of Interpretation (Article 32 of the Vienna Convention on the Law of Treaties)

Discusses the role played by the Vienna Convention on the Law of Treaties 1969 art.32, which permits recourse to a treaty's travaux preparatoires and the circumstances of its conclusion as a supplementary means of interpretation, in the Convention's overall interpretative scheme. Considers the potential application of art.32 in international investment disputes.

A Critical Assessment of Using Children to Participate Actively in Hostilities in Lubanga Child Soldiers and Direct Participation

The first judgment of the International Criminal Court, delivered on 9 March 2012, raises a pivotal and equally controversial issue of what constitutes ‘active participation in hostilities’ for the purpose of the child solider offences under the Rome Statute in the case against Thomas Lubanga Dyilo. The Majority (Judge Fulford and Judge Blattmann) adopted a broad definition of the notion of ‘active’ participation and the Minority (Judge Benito) an even more ample one. This was achieved by distinguishing between ‘active participation in hostilities’ and ‘direct participation in hostilities’ and by recourse to the travaux preparatoires of the Rome Statute and to human rights norms. The purpose of this contribution is to demonstrate that the meaning of ‘active participation in hostilities’ under Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Rome Statute is not ambiguous or obscure, but is the same as that of ‘direct participation in hostilities’ under international humanitarian law. Recourse to supplementary means of interpretation by the Trial Chamber, be it to the travaux preparatoires, or to human rights norms, was unnecessary and misguided. The contribution will also draw some conclusions on how criminal liability before the ICC may be excluded for Articles 8(2)(b)(xxvi) or 8(2)(e)(vii) of the Rome Statute on the basis of the broad definition adopted by the Trial Chamber of the notion of ‘active participation in hostilities’ and will discuss other consequences arising from the judgement at hand.

WTO Origin Rules for Services and the Defects: Substantial Input Test as One Way Out?

The origin of services is often one of the issues that regulators have to address to determine whether there is trade in services. It is also indispensable for the application of preferential trade commitments including national and most-favoured-nation (MFN) treatment, among others. This article examines the relevant provisions to ascertain whether there are any defects in origin rules for services of the General Agreement on Trade in Services (GATS), and, if so, how they could possibly be handled. It concludes, first, that there is the twofold typology for the origin rules: general origin rules and special origin rules. Second, four defects exist in general origin rules for commercial presence, particularly the ownership or control requirement. They are insufficient to determine the origin for juridical persons of equal or scattered shareholding structure or services co-supplied by providers of different nationality. Neither are they always capable of identifying the economic service suppliers and the ultimate owner or controller of suppliers. Third, the application of the general interpretation rule leaves the meaning ambiguous. A substantial input test based on the value added criteria could be adopted as the supplementary means of interpretation.

Principles of Treaty Interpretation in the NAFTA Arbitral Award on Canadian Cattlemen

The NAFTA arbitral award on Canadian Cattlemen is specific in having its entire reasoning based on principles of treaty interpretation. Attempting to clarify the notion of “investment” under the NAFTA Agreement, this award carefully examines every principle of interpretation recognized under the Vienna Convention on the Law of Treaties that is applicable to the case. This article analyses the tribunal’s use of the methods of interpretation such as plain and ordinary meaning, object and purpose, context, subsequent practice and of supplementary means of interpretation. In terms of supplementary methods of interpretation, the tribunal’s reference to previous arbitral awards as supplementary means of treaty interpretation is evaluated, especially against the background of the lack of precedential force of international arbitral awards.

IS THE HIERARCHICAL STRUCTURE OF ARTICLES 31 AND 32 OF THE VIENNA CONVENTION REAL OR NOT? INTERPRETING THE RULES OF INTERPRETATION

In the practice of modern international law, if a certain understanding is advanced as the correct interpretation of a treaty provision, the proposition is assessed using the rules of interpretation laid down in the 1969 Vienna Convention on the Law of Treaties, Articles 31–33. This article is concerned with the relationship held in such an interpretation process between the preparatory work of a treaty – described as a supplementary means of interpretation in Article 32 – and the three primary means of interpretation that can be used by an interpreter citing Article 31. Judged by the wordings of Articles 31 and 32, the relationship between the primary and the supplementary means of interpretation is hierarchical. As a consequence, preparatory work may be used to determine the correct meaning of a treaty provision, only on the condition that in the earlier stages of the interpretation process, the application of Article 31 has been found to leave the meaning of the interpreted treaty ‘ambiguous or obscure’, or to lead to a result ‘which is manifestly absurd or unreasonable’. Several scholars in the area have recently argued for granting the preparatory work of a treaty a more prominent role in the interpretation process. As this article will show, such a claim builds on arguments that do not stand up to careful legal analysis. It should, therefore, be discarded as unsound.

International Legal Histories: The Declining Importance of Travaux Prparatoires in Treaty Interpretation?

The editors of this Review have had the felicitous idea to mark its 50th anniversary with a special issue devoted to the time factor in international law, with one contribution devoted to the apparently declining importance of travaux preparatoires in the interpretation of treaties. Under Article 32 of the Vienna Convention on the Law of Treaties, the preparatory works of a treaty are only to be consulted in a limited number of circumstances, and then only as supplementary means of interpretation: when application of the general rule (combining a textual approach with an interpretation in light of the treaty's object and purpose) does not lead to satisfactory results. Under Article 31, paragraph 2, of the Vienna Convention, travaux preparatoires do not even qualify as part of a treaty's context; clearly, the Vienna Convention envisages but a very limited role for a treaty's preparatory works. Yet, most international lawyers will almost automatically include a discussion of preparatory works in legal argument, and will consider it vital to do so: an argument without paying due regard to a treaty's drafting history is an incomplete argument. It is this ambivalence which I hope to explore.