Part V Treaty Interpretation, 20 The Interpretation of Treaties over Time

2020 ◽  
Author(s):  
Bjorge Eirik ◽  
Kolb Robert
Keyword(s):  
International Law ◽  
Sustained Attention ◽  
Vienna Convention ◽  
Main Principle ◽  
International Courts ◽  
Customary International Law ◽  
Treaty Interpretation ◽  
New Interpretation ◽  
Legal Sense ◽  
Over Time

This chapter considers an issue that has garnered sustained attention by States and international courts and tribunals in recent years — the potential to allow (or deny) evolutionary interpretations to treaty terms. It highlights five conclusions about the interpretation of treaties over time. First, evolutionary interpretations are made based on an array of means of ordinary interpretation, as enshrined in Vienna Convention on the Law of the Treaties Articles 31–33 and customary international law. Second, evolutionary interpretation is an issue of fact and law arising in the circumstances of particular cases. Third, the main principle is that of ‘contemporaneous interpretation’, a term referring not to the interpreter but to the parties (i.e. contemporaneous to the time of conclusion of the treaty). Fourth, it makes no sense to apply the principle of contemporaneity in all circumstances, since there are some terms used in treaties that make legal sense only when understood to evolve over time. Finally, to keep the unity of the treaty and its terms, the new interpretation is retrospective, having effect back to the time of the treaty’s conclusion.

scholarly journals ‘Codification by Interpretation’: The International Law Commission as an Interpreter of International Law

2020 ◽  
Vol 31 (1) ◽  
pp. 171-200
Author(s):  
Danae Azaria
Keyword(s):  
International Law ◽  
Focal Point ◽  
Vienna Convention ◽  
Customary International Law ◽  
Treaty Interpretation ◽  
Per Se ◽  
The Law ◽  
International Law Commission ◽  
Law Commission

Abstract This article argues that the International Law Commission (ILC) interprets international law. In recent years, in documents intended to remain non-binding, the Commission has made interpretative pronouncements about a treaty in force, the Vienna Convention on the Law of Treaties, and customary international law reflected therein. This development is called the ‘codification by interpretation’ paradigm in this article. This article argues that interpretation falls within the ILC’s function, and it analyses the effects of the Commission’s interpretative pronouncements. It explains that the ILC’s interpretative pronouncements are not per se binding or authentic. However, they may trigger an interpretative dialogue with states. The ILC’s interpretative pronouncements may constitute a focal point for coordination among states, a subsidiary means for determining rules of law and a supplementary means of (treaty) interpretation. The aim of the ILC’s ‘codification-by-interpretation’ paradigm in the four topics considered in this article is to introduce clarity and predictability into secondary rules on the law of treaties, thus ensuring the clarity and predictability of primary treaty rules across all fields of international law. The ILC endeavours to convince states to use international law as a medium by which they regulate their affairs.

scholarly journals Interpreting the Customary Rules on Interpretation

2017 ◽  
Vol 19 (1) ◽  
pp. 126-155 ◽  
Author(s):  
Panos Merkouris
Keyword(s):  
International Law ◽  
Critical Analysis ◽  
Customary Law ◽  
International Courts ◽  
Customary International Law ◽  
Treaty Interpretation

International courts have at times interpreted the customary rules on interpretation. This is interesting because what is being interpreted is: i) rules of interpretation, which sounds dangerously tautological, and ii) customary law, the interpretation of which has not been the object of critical analysis. The present paper, aims to fill this lacuna and prove that not only interpretation of customary rules of interpretation is not problematic (it is neither tautological nor impossible), but also that it is a process completely distinguishable from that of formation/identification of customary international law. Whereas the latter determines the existence of a customary rule and has to grapple with ‘practice’ and ‘opinio juris’, interpretation of customary rules concerns itself with the rules after they have come into existence. I will then demonstrate that customary rules of interpretation have consistently been interpreted in international jurisprudence and that the interpretative process bears certain similarities to treaty interpretation.

A Study of the Issue of ‘Relevant Rules’ of International Law for the Purposes of Interpretation of Treaties under Article 31(3)(c) of the Vienna Convention on the Law of Treaties

2019 ◽  
Vol 21 (2) ◽  
pp. 190-219 ◽  
Author(s):  
Sumith Suresh Bhat
Keyword(s):  
International Law ◽  
Vienna Convention ◽  
International Courts ◽  
Treaty Interpretation ◽  
The Law ◽  
Definition Of

Abstract The Vienna Convention on the Law of Treaties (VCLT) embodies Article 31(3)(c), prescribing that ‘relevant rules’ of international law must be taken into consideration while interpreting treaties, thereby promoting the idea of ‘systemic integration’. The absence of the definition of ‘relevant rules’ has caused problems in treaty interpretation. International Courts and Tribunals have not provided adequate guidance on the consideration of rules of international law for treaty interpretation. The objective of the article is to study that part of Article 31(3)(c) which concerns ‘relevant rules’ in order to establish certain factors that must be taken into account for determining which rules of international law become relevant for the purposes of interpretation of a treaty. This will be done by examining the background of systemic integration and analysing cases in this area of law.

Who Is a Refugee in Africa? A Principled Framework for Interpreting and Applying Africa’s Expanded Refugee Definition

2019 ◽  
Vol 31 (2-3) ◽  
pp. 290-320
Author(s):  
Tamara Wood
Keyword(s):  
International Law ◽  
Decision Makers ◽  
Vienna Convention ◽  
Legal Basis ◽  
Refugee Status ◽  
Customary International Law ◽  
Refugee Protection ◽  
Treaty Interpretation ◽  
Future Harm ◽  
Interpretative Framework

Abstract Africa’s expanded refugee definition – article I(2) of the 1969 Convention – provides the legal basis of protection for a significant number of the world’s refugees. It is a gateway to a host of rights aimed at protecting refugees from future harm and preserving their dignity until a durable solution can be found. The expansive nature of the African definition has seen it praised for being more humanitarian, more reflective of current causes of displacement, and an exemplar for the development of refugee protection regimes elsewhere. Despite this, the scope of the definition and the meaning of its terms remain poorly understood in both literature and practice. Attempts to interpret the definition to date have been largely superficial and often lacking in any principled interpretative framework. This undermines its implementation in practice, potentially risking the lives and security of those entitled to protection as refugees in Africa. This article sets out a principled framework for interpreting and applying Africa’s expanded refugee definition. The framework is drawn from international law principles of treaty interpretation, as set out in the Vienna Convention on the Law of Treaties and customary international law. However, this article goes beyond merely reciting the relevant principles: it analyses their scope, applicability to Africa’s expanded refugee definition, and implications for the interpretation of the definition’s terms. It also identifies, and describes in detail, four key principles for interpreting the expanded refugee definition. These four key principles are critical to addressing the shortcomings of existing understandings of the definition and some of the main controversies that arise in its interpretation and application. They also provide a practical and accessible source of guidance for refugee status decision makers and others that could assist in promoting consistency, transparency, and fairness in refugee status determination within African States.

Modification of Treaties by Subsequent Practice

2018 ◽  
Author(s):  
Irina Buga
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Environmental Law ◽  
Vienna Convention ◽  
Humanitarian Law ◽  
Customary International Law ◽  
Original Intention ◽  
Treaty Interpretation ◽  
Investment Law ◽  
The Law

Treaties must undergo transformation and modernization to reflect changing norms and developments in international law. But treaties can be notoriously difficult to amend by formal means. One crucial way in which treaty evolution takes place is through subsequent practice, a well-established tool for treaty interpretation. While its initial aim is to shed light on the parties’ original intention, over time, subsequent practice acquires a force of its own and may come to evidence their contemporary understanding of the treaty. Subsequent practice may even diverge so far from treaty provisions that it can no longer be said to constitute an act of treaty interpretation, but becomes, in effect, one of modification. Furthermore, such practice can give rise to new norms of customary international law, which, in turn, may impact pre-existing treaty provisions. The modification of treaties by subsequent practice extends to all fields of international law, from the law of the sea, environmental law, and investment law, to humanitarian law and human rights. Such modifications can have significant practical consequences, from revising or creating new rights and obligations, to establishing new institutional mechanisms. Determining the point when the ‘switch’ from treaty interpretation to treaty modification occurs, however, is itself an act of interpretation. It poses difficulty to legal scholars and dispute settlement bodies alike, especially in light of the silence of the Vienna Convention on the Law of Treaties on this point, and impacts States’ expectations as to their treaty obligations. This book addresses this insufficiently explored issue of international significance.

Fragmentation of International Law Revisited: Insights, Good Practices, and Lessons to be Learned from the Case Law of the European Court of Human Rights

2015 ◽  
Vol 28 (4) ◽  
pp. 863-885 ◽  
Author(s):  
ADAMANTIA RACHOVITSA
Keyword(s):  
Human Rights ◽  
International Law ◽  
Case Law ◽  
European Convention ◽  
Vienna Convention ◽  
International Courts ◽  
Good Practices ◽  
European Court ◽  
Interpretation Process ◽  
Fragmentation Of International Law

AbstractThis article discusses the contribution of the European Court of Human Rights to mitigating difficulties arising from the fragmentation of international law. It argues that the Court's case law provides insights and good practices to be followed. First, the article furnishes evidence that the Court has developed an autonomous and distinct interpretative principle to construe the European Convention on Human Rights by taking other norms of international law into account. Second, it offers a blueprint of the methodology that the Court employs when engaging with external norms in the interpretation process. It analyses the Court's approach to subtle contextual differences between similar or identical international norms and its position towards the requirements of Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT). It concludes that international courts are developing innovative interpretative practices, which may not be strictly based on the letter of the VCLT.

scholarly journals States’ Mouthpieces or Independent Practitioners? The Role of Counsel before the ICJ from the Perspective of the Legal Value of their Oral Pleadings

2021 ◽  
Vol 20 (1) ◽  
pp. 54-76
Author(s):  
Marco Longobardo
Keyword(s):  
International Law ◽  
State Responsibility ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
State Practice ◽  
The Icj ◽  
Treaty Interpretation

Abstract This article explores the role of counsel before the International Court of Justice, taking into account their tasks under the Statute of the Court and the legal value of their pleadings in international law. Pleadings of counsel constitute State practice for the formation of customary international law and treaty interpretation, and they are attributable to the litigating State under the law on State responsibility. Accordingly, in principle, counsel present the views of the litigating State, which in practice approves in advance the pleadings. This consideration is relevant in discussing the role of counsel assisting States in politically sensitive cases, where there is no necessary correspondence between the views of the States and those of their counsel. Especially when less powerful States are parties to the relevant disputes, the availability of competent counsel in politically sensitive cases should not be discouraged since it advances the legitimacy of the international judicial function.

4 Interpreting the Energy Charter Treaty

2020 ◽  
Author(s):  
Hobér Kaj
Keyword(s):  
International Law ◽  
Vienna Convention ◽  
Energy Charter Treaty ◽  
Written Form ◽  
Rules And Principles ◽  
Treaty Interpretation ◽  
The Law ◽  
Single Instrument ◽  
International Document ◽  
Multilateral Treaty

This chapter discusses the interpretation of the Energy Charter Treaty. The ECT is a multilateral treaty during the negotiation of which approximately fifty States participated, albeit to varying degrees. It goes without saying that in such a setting, there are many competing interests to take into account, often resulting in ambiguous treaty provisions. Indeed, almost every dispute based on the ECT involves issues of treaty interpretation. The law applicable to the interpretation of treaties is international law, unless the parties to the treaty in question have agreed otherwise. For all practical purposes, the most important international document when it comes to treaty interpretation is the 1969 Vienna Convention on the Law of Treaties. Article 2(1)(a) of the Vienna Convention defines ‘treaty’ as ‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation’. There is little doubt that the ECT is covered by this definition. Article 26(6) of the ECT provides that disputes under it are to be resolved on the basis of its provisions and ‘applicable rules and principles of international law’. The chapter then considers Articles 31—3 of the Vienna Convention, which deal with the interpretation of treaties.

Thoughts on Domestic Adjudication and the Identification and Formation of Customary International Law

2018 ◽  
Vol 27 (1) ◽  
pp. 131-149
Author(s):  
Cameron Miles
Keyword(s):  
International Law ◽  
International Courts ◽  
Customary International Law ◽  
Judicial Decisions ◽  
Model Based ◽  
Domestic Courts ◽  
State Practice ◽  
The Icj ◽  
International Adjudication

Article 38(1)(d) of the ICJ Statute provides that “judicial decisions” may serve as a subsidiary means for the determination of customary international law. The absence of a qualifying adjective to the term “judicial decisions” confirms that, at least ex facie, there is no priority to be given to international over domestic judgments in this respect. And yet – as the International Law Commission’s Draft Conclusions on Formation and Identification of Customary International Law confirms – the reality of international adjudication is one in which domestic judicial decisions are often side-lined. In this paper, I question the ILC’s assertion that this is due to the relative expertise of international versus domestic courts, and instead posit a model based on the shifting architectonics of international adjudication. Two related developments are key: (1) the florescence of international adjudicative bodies in the post-1945 era, and (2) the tendency for international courts and tribunals to see domestic judicial decisions as evidence of state practice and opinio juris under Article 38(1)(b), rather than as subsidiary means for the determination of custom – that is, as factual rather than legal precedents.

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