7 Part I: Definitions and Purpose

2020 ◽  
Author(s):  
Hobér Kaj
Keyword(s):  
Vienna Convention ◽  
Energy Materials ◽  
Proper Understanding ◽  
Energy Charter Treaty ◽  
Treaty Interpretation ◽  
Key Terms

This chapter assesses Part I of the Energy Charter Treaty, which deals with definitions and the purpose of the treaty. Central to the functioning and proper understanding of the ECT, Article 1 sets forth relatively detailed definitions of key terms and concepts used in the ECT. In particular, there are two defined terms which are important: Article 1(6), which defines ‘Investment’; and Article 1(7), which defines ‘Investor’. These two concepts have been argued in practically every ECT award rendered so far. Article 1 also defines other key terms used in the ECT such as ‘Contracting Party’ (paragraph 4), ‘Energy Materials and Products’ (paragraph 5), and ‘Area’ (paragraph 10). Meanwhile, Article 2 is titled ‘Purpose of the Treaty’. Proceeding from the rules of treaty interpretation laid down in the Vienna Convention, Article 2 of the ECT is relevant when determining the object and purpose of the ECT. It should be noted that Article 2 refers to the European Energy Charter, which is also relevant when determining the object and purpose of the ECT.

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.

Resolving Perceived Norm Conflict through Principles of Treaty Interpretation: The January 2019 EU Member States’ Declarations

2020 ◽  
Vol 5 (1) ◽  
pp. 167-195
Author(s):  
Samantha J. Rowe ◽  
Nelson Goh
Keyword(s):  
International Law ◽  
Dispute Resolution ◽  
Legal Order ◽  
Vienna Convention ◽  
Member States ◽  
Eu Member States ◽  
Valid Consent ◽  
Energy Charter Treaty ◽  
Treaty Interpretation ◽  
The Eu

In January 2019, EU Member States issued three declarations concerning the “consequences of Achmea” which stated that all claims under intra- EU BIT S were contrary to the EU legal order, and that tribunals presiding over such claims have no jurisdiction as there is no valid consent to arbitrate. The declaration signed by a majority of EU Member States (“Majority Declaration”) extended this proposition to intra- EU claims under the Energy Charter Treaty. Following this, a number of EU Member States have sought to argue that the Majority Declaration is a subsequent agreement between the States Parties to intra- EU investment treaties—or evidence of a subsequent practice establishing their agreement—that the dispute resolution provisions in those treaties must be interpreted to exclude intra- EU disputes from their scope and thus from the jurisdiction of tribunals constituted thereunder, relying on Article 31(3)(a) and (b) of the Vienna Convention on the Law of Treaties (“VCLT”). This paper considers: (i) the key cases in which the Majority Declaration has been invoked to contest jurisdiction in, or seek the termination of, intra- EU arbitration proceedings; (ii) the application of Article 31(3)(a) and (b) of the VCLT; and (iii) other fundamental tenets and rules of international law discussed in relation to those cases.

scholarly journals “Or any other similar criteria”: Towards advancing the protection of LGBTQI detainees against discrimination and sexual and gender-based violence during non-international armed conflict

2021 ◽  
pp. 1-23
Author(s):  
Vaughn Rossouw
Keyword(s):  
Sexual Orientation ◽  
Gender Identity ◽  
Armed Conflict ◽  
General Rule ◽  
Vienna Convention ◽  
Gender Based Violence ◽  
Geneva Conventions ◽  
Treaty Interpretation ◽  
Gender Based ◽  
And Gender

Abstract Discrimination and sexual and gender-based violence committed against lesbian, gay, bisexual, transgender, queer and intersex (LGBTQI) detainees remains one of the most pressing contemporary humanitarian challenges. This article focuses on the interpretation of the phrase “or any other similar criteria” as contained in Article 3 common to the four Geneva Conventions, upon which adverse distinction is prohibited, in order to qualify sexual orientation and gender identity as prohibited grounds of adverse distinction. The interpretation of “or any other similar criteria” will be embarked upon by employing the general rule of treaty interpretation provided for in the Vienna Convention on the Law of Treaties, so as to qualify sexual orientation and gender identity as “any other similar criteria” and ultimately to realize the protection of LGBTQI detainees against discrimination and sexual and gender-based violence during non-international armed conflict.

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.

The Holistic Interpretation of Treaties at the International Court of Justice

2018 ◽  
Vol 87 (3) ◽  
pp. 249-343 ◽  
Author(s):  
Liliana E. Popa
Keyword(s):  
Case Law ◽  
Vienna Convention ◽  
Main Argument ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Extended Analysis ◽  
Holistic Interpretation ◽  
Treaty Interpretation ◽  
Interpretative Approach

This article revises the topic of treaty interpretation at the International Court of Justice and focuses on what judges at this Court do in terms of treaty interpretation. The main argument developed in the article, based on an extended analysis of case-law at the ICJ, prior to and after the adoption of the 1969 Vienna Convention on the Law of Treaties, is that the ICJ’s approaches to interpretation after the VCLT was adopted are consistent with the canons of treaty interpretation which this Court has greatly developed and applied with consistency since its inception. The case-law analysis reveals a preference of the PCIJ/ICJ for holistic interpretation, and thus for the use of more rules and methods of interpretation than initially declared by the Court as sufficient to solve the issue of interpretation before it, in an interpretative approach which could be termed ‘overbuilding’.

Effectiveness and Evolution in Treaty Interpretation

2019 ◽  
Author(s):  
Daniel Rietiker
Keyword(s):  
Human Rights ◽  
International Organizations ◽  
Vienna Convention ◽  
The European Union ◽  
Clear Trend ◽  
Court Of Justice ◽  
Treaty Interpretation ◽  
The Moment ◽  
Teleological Interpretation ◽  
Inter State

Effectiveness and evolution in treaty interpretation have to be placed in the context of treaty interpretation more generally, which is one of the classical topics of public international law. For some authors, there is a link between these two elements, insofar as the principle of dynamic (or evolutive) interpretation aims to ensure the effective application and implementation of treaties. Therefore, it is appropriate to analyze them together. The majority of authors, however, concentrate on one aspect. Regarding, first of all, effectiveness, such a principle has not been explicitly enshrined in the 1969 Vienna Convention on the Law of Treaties (VCLT), but it can nevertheless be considered an underlying principle of that instrument. In particular, the flexibility of the concept of the object and purpose of a treaty allows for the consideration of effectiveness. Other tools for effectiveness are teleological interpretation and interpretation according to the effet utile (ut res magis valeat quam pereat), but neither authors nor practice systematically distinguish between those concepts and principles. In addition, judicial and quasi-judicial bodies implementing certain treaties, in particular human rights instruments and constitutive agreements of international organizations, have adopted their own principles of effectiveness, such as the principle that calls for a “practical and effective” protection of human rights or, regarding international organizations, the doctrine of implied powers. Second, the notion of evolution in interpretation raises issues of intertemporal law, namely the question as to which moment is relevant for the interpretation, i.e., the moment of the conclusion of a treaty or the moment when a dispute necessitating interpretation arises. The analyzed literature shows that, generally speaking, practice and theory seem to favor a dynamic and evolutive interpretation within appropriate and reasonable limits, justifying such an approach, inter alia, by the special nature of certain treaties. As far as the relevant practice of international courts is concerned, human rights tribunals, in particular the European and the Inter-American Court of Human Rights (ECtHR and IACtHR), both adopting a dynamic and effective interpretation, have received significant doctrinal attention in this regard. For the authors, the special nature and purposes of those treaties justify a flexible, evolutive, and effective approach. The same can be said for the Court of Justice of the European Union, having relied heavily on interpretation according to the effet utile of a treaty. The practice of the Permanent Court of International Justice (PCIJ) and the International Court of Justice (ICJ), both dealing with inter-State complaints, are not surprisingly less nuanced concerning effectiveness and evolution, but have nevertheless shown a clear trend in that direction more recently. Finally, the analysis of the practice of the World Trade Organization (WTO) Appellate Body, which deals with inter-State claims too, is more ambiguous, but it is generally suggested that its interpretation is less guided by considerations of effectiveness and evolution than, inter alia, the practice in the field of human rights.

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.

The Travaux of Travaux: Is the Vienna Convention Hostile to Drafting History?

2013 ◽  
Vol 107 (4) ◽  
pp. 780-822 ◽  
Author(s):  
Julian Davis Mortenson
Keyword(s):  
Prima Facie ◽  
Conventional Wisdom ◽  
Vienna Convention ◽  
Treaty Interpretation ◽  
The Law ◽  
Preparatory Work

It is often asserted that the Vienna Convention on the Law of Treaties (VCLT) relegates drafting history to a rigidly subsidiary role in treaty interpretation. Many commentators go so far as to suggest that the VCLT entrenches a categorical prejudice against travaux préparatoires (travaux)—the preparatory work of negotiation, discussions, and drafting that produces a final treaty text. Because of this alleged hostility to history as a source of meaning, the conventional wisdom is that when an interpreter thinks a text is fairly clear and produces results that are not manifestly unreasonable or absurd, she ought to give that prima facie reading preclusive effect over anything the travaux might suggest to the contrary.

Semantic Analysis on the Malay Islamic Concept of Man and Universe

2010 ◽  
Vol 7 (1) ◽  
pp. 87
Author(s):  
Hussain Othman
Keyword(s):  
Semantic Analysis ◽  
World View ◽  
Semantic Approach ◽  
Proper Understanding ◽  
Religious Consciousness ◽  
Islamic Tradition ◽  
The People ◽  
Minor Part ◽  
A Minor ◽  
Key Terms

What was the true concept of man and universe as understood by the Malay Muslims and depicted by their classical texts? Oftentimes, the Hindu concept of devaraja or kingship and the concept of mount Mahameru were seen as the most appropriate Malay concept of man and universe. Unfortunately, these two concepts representing only a minor part of the Malay classical tradition. Other dominant part of the Malay intellectual legacy, i.e. the Malay Islamic tradition was frequently neglected. Obviously, it is not so easy to describe the concept of man and universe in Malay Islamic tradition due to the limitation of sources and proper approaches to be employed. Studies however showed that a proper understanding upon the worldviews of the past could be possible if we choose to look through the eyes of the people of the time. Based on this notion, this study has selected the semantic approach to unveil a proper Malay Islamic concept of man and universe. The approach was well known to us through the writings of a Japanese scholar, Toshihiko Izutsu. Semantic, according to Izutsu is an analytic study of the key-terms of a language with a view arriving eventually at a conceptual grasp of the weltanschauung or world-view of the people. Through this approach, the study has finally arrived at the conclusion that the Malay Islamic concept of man is not the concept of the devaraja or “kingship”, rather it was strongly based on the concept of duties and responsibilities inspired by the religious consciousness of the people. Similarly, the Malay Islamic concept of universe is not the concept of mount Mahameru. It was rather the concept of al-dunya wal akhirah. The purpose of this paper is to discuss further some tremendous discoveries of the Malay Islamic concept of man and universe embedded in three great books of Malay history namely Sejarah Melayu, Hikayat Raja-raja Pasai and Hikayat Merong Mahawangsa.

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