scholarly journals The Significance And Utility of the Rules of Treaty Interpretation, as Encapsulated in the 1969 Vienna Convention on the Law of Treaties, for the Purpose of Ascertaining the Meaning of Treaty Provisions

2021 ◽  
Vol 0 (70) ◽  
pp. 243-252
Author(s):  
Zora Kızılyürek
Keyword(s):  
Vienna Convention ◽  
Treaty Interpretation ◽  
The Law

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.

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.

Extraterritoriality as a Matter of Interpretation

2020 ◽  
pp. 13-40
Author(s):  
Lea Raible
Keyword(s):  
Human Rights ◽  
Vienna Convention ◽  
Standard View ◽  
Human Rights Treaties ◽  
Treaty Interpretation ◽  
The Law

This chapter considers the standard view that extraterritoriality is a matter of treaty interpretation and that, following on from this, all that is required to discover the extraterritorial scope of human rights treaties is following the rules of interpretation set out in the Vienna Convention on the Law of Treaties. I argue that the extraterritorial scope of a treaty is a matter of treaty interpretation, but that it is not sufficient to follow rules in order to give meaning to international legal instruments. What determines the outcome of an interpretation is, in addition to these rules, a question of values. That is, what lies at the heart of interpretation is the determination of the values and principles that underlie a human rights treaty.

Part V Treaty Interpretation, 19 The Vienna Convention Rules on Treaty Interpretation

2020 ◽  
Author(s):  
Gardiner Richard
Keyword(s):  
International Law ◽  
Vienna Convention ◽  
Treaty Interpretation ◽  
The Law ◽  
Single Set

This chapter offers a nuanced account of one of the Vienna Convention on the Law of Treaties’s seminal contributions to international law — a single set of interpretative ‘principles’ if not actual rules. It addresses two questions. The first is in what sense are the Vienna rules on treaty interpretation ‘rules’? The second is how are the rules to be used in interpreting treaties? The answer to the first question provides much of the answer to the second one. But the second is worth additional attention, mainly because the rules’ application in practice reveals interpretations that do not stand out from simply reading them.

Part IV Treaty Application, 18 Treaty Conflicts and Systemic Fragmentation

2020 ◽  
Author(s):  
Borgen Christopher J
Keyword(s):  
International Law ◽  
Vienna Convention ◽  
Conflict Avoidance ◽  
Treaty Interpretation ◽  
The Law ◽  
Fragmentation Of International Law

This chapter examines treaty conflicts and the systemic fragmentation of international law more generally. It focuses on fragmentation through the optic of conflicting obligations between treaties, as well as, to a lesser extent, between a treaty and another source of law. The chapter proceeds in three parts. Part I reviews the causes of normative conflict. Part II examines the various ways a treaty can conflict with another treaty or source of law. Part III surveys different techniques for addressing normative conflict via conflict avoidance clauses, treaty interpretation, the Vienna Convention on the Law of Treaties, and the classic canons of treaty construction (lex prior, lex posterior, and lex specialis). The chapter concludes with a discussion of the broader theme concerning international law’s systemic fragmentation.

Taking the Rules of Interpretation Seriously, but Not Literally? A Theoretical Reconstruction of Orthodox Dogma

2017 ◽  
Vol 86 (2) ◽  
pp. 125-150
Author(s):  
Jörg Kammerhofer
Keyword(s):  
International Law ◽  
Legal Theory ◽  
Vienna Convention ◽  
Construction Of Meaning ◽  
Treaty Interpretation ◽  
The Law ◽  
Epistemic Process

For international lawyers, the Vienna Convention rules of treaty interpretation are ‘the only game in town’; they have had the whip-hand for several decades now. Yet is this belief in the power(s) of the Vienna rules justified? Behind the claim that they are the law lies a theoretically much more interesting, yet fundamentally unsustainable second argument. It is that rules of interpretation are somehow independent of – and replace – the legal epistemic process, the ascertainment of the law’s meaning-content. These rules are seen as serving a different function, i.e. to regulate the process of the applicative construction of meaning by the organs of international law. They are doctrine’s attempt to control how treaties are construed by tribunals. However, as a matter of legal theory there are severe limits to what such rules can do. Given these limits, we will reconstruct the possible meanings and uses of the Vienna Convention rules.

scholarly journals MFN Clauses and Substantive Treatment: A Law of Treaties Perspective of the “Conventional Wisdom”

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 49-54 ◽  
Author(s):  
Martins Paparinskis
Keyword(s):  
Affirmative Answer ◽  
Conventional Wisdom ◽  
Vienna Convention ◽  
Most Favored Nation ◽  
Investment Protection ◽  
Treaty Interpretation ◽  
The Hague ◽  
The Law

On the big questions, Simon Batifort and J. Benton Heath are plainly right. Dogmatic presumptions about the necessary effect of particular clauses and woolly notions of systemic teleology may distract the interpreter from the task of finding the meaning that represents the intentions of the parties, best articulated in the specific terms chosen. Customary rules on treaty interpretation, reflected in Articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT), are meant to be flexibly adapted to the case in hand. But in applying their insight to the small print of the interpretative question, Batifort and Heath are less persuasive. Can most favored nation (MFN) clauses be generally relied upon to, as they put it, “import” substantive standards of treatment of investment protection law? The authors are critical of the apparent consensus in favor of an affirmative answer—they call it “conventional wisdom”—and in this regard seem to me to be significantly overstating their case.

Part III Observance and Application of Treaties, 16 The European Courts and the Law of Treaties: The Continuing Story

2011 ◽  
Author(s):  
Kuijper Pieter Jan
Keyword(s):  
International Law ◽  
Case Law ◽  
European Court Of Justice ◽  
Vienna Convention ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Treaty Interpretation ◽  
The Law ◽  
The Eu

This chapter presents a critical analysis of the case law of the European Court of Justice and of the General Court relating to the application of the international law of treaties. It covers the some forty cases in which the Courts have referred explicitly to the Vienna Convention on the Law of Treaties 1969, and a few more where this happened implicitly, during the period 1998–2010. Inevitably the emphasis falls on the application of the rules of treaty interpretation to the international agreements concluded by the European Union (EU), but also to the founding treaties of the EU itself. The Courts have been confronted with great regularity with questions relating to the law of treaties and thus have become increasingly sophisticated in their use of it. The recent accusation that the Court is adverse to international law seems to be based on a few dramatic cases, not on the steady stream of smaller cases in which the law of treaties plays a role.

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