Treaty Interpretation Research Articles

Study on the Methods of Treaty Interpretation By Domestic Courts

In the context of global integration, domestic courts are faced with an ever-increasing demand for treaty interpretation and application, which is a realistic way to enhance the authority and credibility of the Chinese judiciary. Based on this, we discuss the challenges faced by domestic courts in the specific application of treaty interpretation methods, and put forward suggestions for improvement in response to these problems. These challenges include conflicts and inconsistencies between methods of interpretation, the lack of systematic and comprehensive rules on methods of interpretation, and limitations on the use of dynamic methods of interpretation. In order to overcome these dilemmas, the following recommendations are made: the establishment of a diversified system of interpretation methods; the construction of uniformly applicable rules of interpretation methods; and the reasonable use of dynamic interpretation methods. The implementation of these recommendations will help domestic courts to better respond to cases involving international treaties and, in practice, ensure that treaty provisions are correctly and fairly implemented.

The Interaction between Directives and Tax Treaties: Three Case Studies

This article applies the findings of the author’s doctoral thesis, The Effect of Directives in the Area of Direct Taxation on the Interpretation and Application of Tax Treaties, which was awarded the International Fiscal Association’s 2024 Mitchell B. Carroll Prize, to three case studies of conflicts between directives and tax treaties.

Treaty interpretation, multilinguism, and the WTO dispute settlement system: towards the comparative translation paradigm?

Abstract Despite a growing emphasis on the interpretive methods employed by international courts and tribunals driven by their potential to address the issue of international law fragmentation, the multilingual aspect of interpretation, codified in Article 33 of the Vienna Convention on the Law of Treaties (VCLT), has received the least amount of attention from international lawyers. However, the multilingual complexity, rarely found in national legal systems, is precisely one of the reasons why scholars of legal interpretation are fascinated by international law. Based on a critical review of the VCLT approach to the interpretation of multilingual treaties, this work argues for an alternative approach, which we refer to as the ‘comparative translation’ paradigm. In addition to putting forward a normative case in favour of this alternative approach, we also aim to show how the World Trade Organization dispute settlement organs have started, at least to some extent, to embrace the new paradigm

The weight of a State’s past stances on treaty interpretation – may good faith play a role?

The weight of a State’s past stances on treaty interpretation – may good faith play a role?

International property rights for Cannabis landraces and terroir products. The case of Moroccan Cannabis and hashish

BackgroundIn recent years, the cannabis industry has evolved from a world defined by the simplicity and ubiquity of illegality of recreational drug cannabis to a world marked by the legal and geographic complexity of ongoing depenalisation, decriminalisation, and legalisation processes. Within this landscape where drug Cannabis plants and their many derivatives see their legal status change, Cannabis cultigens and end products are increasingly likely to becoming subject to protection by intellectual property rights. This article delves into the implications of these changes for traditional Cannabis farmers, particularly in the Global South, as they face economic and legal threats amidst global legalisation efforts. It examines the potential role of appellations of origin in protecting local Cannabis cultigens and end products, focusing on Moroccan Cannabis and hashish as a case study. MethodsThe text resorts to the treaties and agreements regulating international property rights and plant variety protection, but also to the concepts of terroir and landrace and their definitions, in order to determine, by way of treaty interpretation and conceptual analysis, what type of legal and economic protections can apply to Cannabis landraces and terroir products. The analysis is also based on previous empirical research published by the author. ResultsThe text argues that appellations of origin are the best intellectual property protections possible for landraces and terroir products because what needs to be protected is not innovation and individual ownership, but tradition and collective ownership, and because appellations of origin are suitable collective intellectual property rights. It shows that appellations of origin are best suited to protect terroir products and landraces because their originality and distinctiveness are place-based originality and distinctiveness. ConclusionThe text concludes that appellations or origin offer the only existing intellectual property protection for preserving the distinctiveness of terroir cannabis products, and for landrace conservation. It acknowledges that neither appellations of origin nor existing plant variety protection laws can be legal forms of control of third parties’ uses of landraces but that appellations of origin can help protect terroir products and landraces by way of their associated agro-ecosystems.

The master key to international law: systemic integration in climate change cases

This article is the first scholarly examination of the function of systemic integration in the climate change context. The article assesses the role that the notion of ‘systemic integration’ is playing in making climate change justiciable internationally, and traces the path along which it brought the principle to become a key notion in climate litigation. It explores the fundamental question of how pre-existing legal norms (to the Paris Agreement) have been used to address questions about climate change. Systemic integration is a principle of treaty interpretation enshrined in Article 31(3)(c) of the Vienna Convention on the Law of Treaties, which requires consideration of other rules of international law in the course of interpreting a treaty. Often operating ‘as an unarticulated major premise in the construction of treaties’, its function is nevertheless ‘analogous to that of a master-key in a large building’ (McLachlan 2005). The underlying premise is that international law is, in essence, a system. This article looks into how the principle is currently operating in practice in climate litigation and, in doing so, it draws some reflections on the wider significance of the principle for international law more generally. The article explores the systemic integration arguments considered in the Torres Strait Islanders case, the first international case on climate change to be adjudicated on its merits, which set in motion a wave of international climate cases, and considers the function of systemic integration in the pending advisory opinions before international courts.

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.

IN PURSUIT OF A TREATY'S SOUL: A STUDY OF THE OBJECT AND PURPOSE OF THE FOURTH GENEVA CONVENTION

AbstractThe Geneva Convention relative to the Protection of Civilian Persons in Time of War provides a practical and effective framework for the protection of civilians in international armed conflicts that has retained its relevance for 75 years since its adoption. As with all treaties, its ‘object and purpose’ has a concrete impact on how its terms are interpreted, giving insights into the ordinary meaning of the text and allowing the aim of the Convention to be fully realized. This article asks and answers a series of questions to elucidate the role of the object and purpose in treaty interpretation and how to identify the object and purpose of a given treaty before focusing on the specificities of international humanitarian law treaties. On that basis, it determines that the overall ‘object and purpose’ of the Convention is to protect civilians during armed conflict, including in circumstances where they are subject to permissible measures of control and security. The article then demonstrates how that ‘object and purpose’ assists with the resolution of specific, well-known interpretive dilemmas including the determination of protected status under the Convention and the application of provisions premised on the existence of a Protecting Power.

International double taxation: Interpretation in the Indian context and general mitigation Measures

International Double Taxation poses a complex challenge with diverse interpretations, especially in the Indian context. This paper investigates the nuances of double taxation, focusing on legal principles, double taxation avoidance agreements (DTAAs), and their implications for residents and permanent establishments. It analyzes India's engagement in double taxation treaties, considering monistic and dualistic principles, legislative processes, and recent judicial developments. Case studies from French and Indian courts offer insights into treaty interpretation. The paper examines relief methods such as Exemption, Credit, Tax-sparing, and Expense Deduction, emphasizing their application within Indian tax treaties. Notably, Permanent Establishment (PE) significance in international taxation is explored through relevant case law. Conclusively, the paper underscores the importance of addressing international double taxation in the globalized era. It argues that while various relief methods exist, the Exemption method is most effective in mitigating double taxation, contrasting with the partial relief provided by the Credit method. The choice of relief method varies across nations based on financial considerations. This comprehensive exploration contributes to understanding international double taxation in the Indian context, highlighting legal interpretations, treaty dynamics, and mitigation measures. It advocates for harmonizing global approaches to achieve more effective and equitable solutions in international taxation.

Submarine Infrastructures and the International Legal Framework

The purpose of this paper is to identify weaknesses in the international framework for the protection of submarine cables beyond the sovereign waters of coastal States. To illustrate this, the paper uses a hypothetical case study of what a possible attack on a submarine cable may look like. First, it provides an overview over the applicable framework, with a particular focus on international peacekeeping law (ius contra bellum), the law of the sea, protection against piracy, and criminal prosecution under national criminal law. Various international conventions play a key role in relation to submarine cables. Particularly relevant are the Convention on Submarine Telegraph Cables of 1884, the United Nations Convention on the Law of the Sea of 1982, as well as the peacekeeping regulations of the United Nations Charter of 1949. After outlining the legal framework using the classical methods of treaty interpretation, as well as taking the scholarly literature on this subject into account, the example is subsumed under the various means of protection under international law. The peacekeeping law of the United Nations turns out to be ineffective because, on the one hand, an attack as described in the reference scenario does not necessarily constitute an armed attack in the sense of the UN Charter and therefore cannot be met with military countermeasures. On the other hand, an authorisation by the Security Council cannot be given quickly enough to counter the attack militarily. In addition to that, measures taken in the framework of the Law of the Sea Convention are ineffective due to the exclusive flag State jurisdiction which precludes other States from acting in this matter. An exception to this principle, namely universal jurisdiction to combat piracy, is unlikely to be applied in the context of an attack against a submarine cable. Finally, as result of the exclusive jurisdiction of the flag State and the poor implementation of the international obligations under the Law of the Sea Convention, national criminal law is also inadequate as a repressive means of protection.

Examining Article 36 of the United Nations Charter, the judicial responsibility of the International Court of Justice in settling disputes between countries in international lawsuits

Field and Aims: This article focuses on Article 36 of the UN Charter and examines the jurisdiction and responsibilities of the International Court of Justice (ICJ) in resolving disputes. The aim Is to strengthen the resolution of International disputes and enhance the role of the ICJ in the United Nations. Method: This research uses the normative legal research method to analyze the provisions and cases through qualitative analysis of documentary data and library materials. Finding and Conclusion: findings indicate that the International Court of Justice has jurisdiction over cases referred to it and matters specified in the UN Charter and relevant treaties. The jurisdiction of the ICJ includes treaty interpretation, dealing with issues of international law, determining breaches, and awarding reparations. The court's decisions are binding and require compliance by states. Article 36 leads to declaratory judgments, compensation, and restitution in integrum. However, the jurisdiction of the ICJ is limited and relies on the consent of states for effectiveness.

Learning from failure in ‘an Integral Part’ of EU Law: interpretation of international treaties in the CJEU

AbstractThe Court of Justice of the European Union has been criticised increasingly for its approach to international law. While much literature focuses on reluctance to apply international law (ie refusing direct effect), this criticism also includes interpretation, arguably a more contentious area. The Court interprets international treaties through either the Vienna Convention or its own teleological method, with the latter increasingly applied. The legitimacy of applying localised methods of interpretation to international treaty law is debated in scholarship. Whether the Court’s case law applying international law is Völkerrechtsfreundlichkeit (friendliness to international law) is the focus of most contributions in this area. This Article seeks to move beyond that debate by demonstrating the Court should in all instances seek to achieve the legal imperatives of certainty and justice. It is explained that justice divides into ‘thin’ and ‘thick’ forms. Whilst ‘thin’ justice is widely accepted and amounts to treating like cases alike, substantive (‘thick’ justice) outcomes are inherently debatable. The Article proves the Court is failing to clearly distinguish cases (‘thin’ justice) and that case law is uncertain. There are also significant questions concerning ‘thick’ justice. The Court has been subject to criticism for substantive outcomes in this area, with the Commission and Council even seeking to limit its role. With case law that is uncertain and appears unjust it is argued that there is failure in this ‘integral part of EU law.’ The Court is now under increased pressure, and it is uncertain how it will respond. There are certainly cautionary lessons to be learned concerning the importance of paying proper attention to justice and certainty for EU law as a whole, and beyond.

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.

State Silence as Acceptance: A Presumption and an Exception

Abstract This study considers State silence which may entail acquiescence and can thus contribute inter alia to the formation of historic rights, the identification of customary international law, and the interpretation of treaties over time. Relying on the historical understanding of acquiescence in British and francophone literature, it argues that there are probability and normative justifications for establishing acquiescence as a ‘presumption of acceptance’ in international law, and that these considerations have influenced the modern international law understanding of acquiescence as an exceptional occurrence subject to stringent qualifications.

The International Court of Justice Today: Current Challenges and Prospects

Introduction. The study strives to analyze the current situation in the International Court of Justice, a number of the challenges facing it, as well as their possible solutions. Of the 18 disputes currently in the Court’s docket 14 were submitted on the basis of jurisdictional clauses of treaties, including in the field of the protection and promotion of human rights. Using the example of a number of cases, including those involving the Russian Federation, the author analyzes some of the problems resulting from this trend.Materials and methods. The methodological basis of the study includes the following general scientific and special methods of cognition: formal-logical, formal-legal, historical-legal, comparative-legal, analysis and synthesis.Results of the study. Firstly, the artificial limitation of the subject matter of the dispute in some instances is noted, which leads to questions of applicable law and causes risks of broad (or “evolutionary”) interpretation of treaties. Secondly, the problem of politicization of the Court’s activities by some of the Parties to the process is identified, forcing the Court to choose between justice and the political context in some of the “high-profile” cases. Thirdly, the Court’s inability to consider numerous “fact-intensive” cases brought by way of jurisdictional clauses of treaties (especially in the field of protection and promotion of human rights) is noted.Discussion and conclusions. The author sees possible solutions in ensuring the Court’s balanced approach to issues of establishing jurisdiction with due regard to the principle of States’ consent, as well as in adjusting its fact-finding methods. While in its practice the Court has not directly supported the proposals voiced by some of its members favoring evolutionary interpretation of the provisions of human rights treaties in order to lower the “threshold” for establishing the existence of a State’s consent to its jurisdiction, the author notes some recent changes in the Court’s approaches that cause concern. The author predicts a number of negative political and legal consequences of excessive judicial activism, including the risk of broad interpretation of the provisions of the relevant conventions and their abuse, as well as a decrease in the confidence of States in the dispute resolution system within the principal judicial organ of the United Nations. Maintaining the Court’s cautious approach to issues of establishing States’ consent to its jurisdiction will be of great importance to upholding its authority.

The Compatibility of the Substance over Form Doctrine with Tax and Investment Treaties: A Case Study of Lone Star v the Republic of Korea

Abstract In late August 2022, the Lone Star tribunal concluded one of the latest awards in tax-related investment treaty disputes (the tax-related claims account for almost USD 1.5 billion of the total of almost USD 4.7 billion claimed in compensation). It also is the first award in which the tribunal dealt with the application of the substance over form doctrine (SOFD) by tax authorities and courts of the host state to prevent the abuse of a double tax treaty (DTT), and the impact of the refusal to accord the claimants the benefits under the DTT via a domestic (Korean) SOFD on the investment protection standards under the bilateral investment treaty (BIT). The Lone Star tribunal implicitly considered the Korean SOFD to be a suitable rule to prevent abuses of the Korea-Belgium DTT and thus compatible with the BLEU-Korea BIT. This article critically analyses the tribunal’s methodology and reasoning in reaching that conclusion. Notably, the article highlights the need to consider the principle of an abuse of rights while examining the compatibility of a SOFD with a BIT and a DTT. Such an approach could enhance the rule of law in the interpretation of tax and investment treaties in other similar cases. It is also in accordance with the principle of systemic integration. The article argues that it is increasingly more important to properly understand the concept of economic substance insofar as denial of benefits (DoB) clauses in investment treaties and principal purposes test (PPT) in tax treaties appear to specifically prevent abuses of those treaties by arrangements with no or insufficient economic substance. Global and regional tax developments, including the implementation of anti-base erosion and profit shifting (BEPS) rules, as well as Pillar Two rules (global minimum tax of 15%), strengthen the need for a comparative research on economic substance under tax and investment treaties. Such research may reveal that a convergence in denying benefits under DTTs and BITs will enhance the rule of law and increase legal certainty in tax and investment domains.

Introducing the legislative priority rule: a constitutional compass for the Court

Abstract The ambiguous nature of the internal market allows for EU legislative input on two tensions animating this field since its inception, those being how to divide power between the EU and Member States and how to reconcile the requirements of integration and regulation. The Court can sometimes struggle with accommodating such input with its Treaty interpretation, leading to further tension with the EU legislator. In the internal market for goods, however, it can rely on the Legislative Priority Rule to resolve disputes in a coherent, Treaty-compliant manner. Casting exhaustive EU legislation as the sole norm against which to assess national product measures, to the exclusion of Articles 34–36 of the Treaty on the Functioning of the European Union (TFEU), this longstanding Rule is, from one perspective, a simple procedural tool to establish the Court’s framework of reference. In reality, however, invoking (or excluding) the Rule can have a substantive and institutional dimension, as its application (or not) engages the relationships between national, secondary, and primary law and, by extension, the Member States, EU legislator, and Court. On the one hand, the Rule enforces EU primacy by pre-empting national competence in the presence of harmonization. On the other, by suspending direct application of Articles 34–35 TFEU, it also implies deference to the EU legislator, and indirectly to the Member States, which enjoy discretion to set standards and determine how power is shared. As a result, while Member States cannot avoid free movement obligations, they can defend national rules by reference to this EU standard to which they have contributed. There is in other words an alignment under the Rule between the dynamics of Exit and Voice, with the Court exercising boundary control to ensure compliance with primary law. It is on this basis that I have come to identify the Legislative Priority Rule as a sort of ‘constitutional compass’ to guide the distribution of power in the internal market for goods. Despite this key role, however, its existence and impact remain relatively unknown or at best ignored, reflecting a gap in understanding the Court’s toolbox for review and a failure to appreciate the role of secondary legislation in building a stable, Treaty-compliant regulatory system.

The Legal Enforceability of CPTPP Anti-corruption Provisions and The Implications to Dispute Settlements

Compared to previous free trade agreements(FTAs), the anti-corruption provisions(ACPs) in the Comprehensive and Progressive Agreement for Trans-Pacific Partnership(CPTPP) have been significantly strengthened in terms of legal enforceability and deserve more attention. The legally enforceable ACPs in CPTPP are concentrated in Articles 26.6 and 26.7. However, this legal enforceability may have implications for dispute settlements under CPTPP and could cause internal conflicts and judicial overlap which need to be addressed through treaty interpretation, treaty modification, or general international law approaches, and the role of the Trade Commission could be considered. This article wishes to provide ideas for a more harmonious inclusion of ACPs in future FTAs. CPTPP, Anti-corruption, Enforceability, Dispute Settlement, Internal Conflict, Judicial Overlap

Правила и стандарты доказывания факта использования компьютерной программы как объекта авторского права

Introduction: the global IT market is steadily growing. International law and national legal systems protect computer programs as copyright objects. Copyright protection in relation to these objects is associated with proving the fact of their use. Judicial practice reveals a number of problems related to the establishment of efficient, balanced, and at the same time fair rules and standards of proving the fact of using a computer program. Purpose: to determine the rules and standards of proving the use of a computer program as a copyright object. Methods: the method of formal logic, comparative‐legal, systematicstructural, and formal‐dogmatic methods. Results: the notions of an intellectual property object and the use of such an object should be understood in two senses: 1) from a day‐to‐day perspective; 2) in the lawbased context. The scope of the notion ‘use’ and the standards of proof of such use are interpreted differently in different intellectual property law institutions. The more technologically advanced the protected object is, the more formalized the procedure to establish the fact of its use should be. Conclusions: Russian judicial practice is on the path of developing the following rule: in general, it is legal to draw a conclusion about the use of a computer program when the evidence reliably reflects an analysis of its source code having been conducted. In the Russian legal system, two approaches have developed to resolving the issue of a computer program storage in computer memory: 1) the scope of the exclusive copyright includes the storage of a program in computer memory per se; 2) such storage is not included in the scope of the exclusive copyright. The second approach seems correct. It is based on a systematic and teleological interpretation of Part 4 of the Civil Code of the Russian Federation, on a historico‐political and teleological interpretation of the WIPO Copyright Treaty of December 20, 1996.

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.