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This chapter evaluates how the Strasbourg bodies have used Articles 31 and 32 of the Vienna Convention on the Law of Treaties. These provisions have recently resurfaced in the context of fragmentation of international law. The Court and the Commission became less responsive to these VCLT rules over the years. Initially, the Court resorted to VCLT in order to construct its own autonomous means of interpretation. In subsequent years, the VCLT was used as a rubber stamp to legitimate references to various international law instruments. With time, the VCLT interpretation rules have survived in the Strasbourg case law and they are currently applied, albeit infrequently, along with other interpretation rules that the Court has created. Further guidance is necessary in order to improve the Court's use of these provisions.

Principal questions regarding the so-called ‘rules’ on conflict resolution such as the lex posterior maxim are still unresolved and disputed in international law just as in domestic law doctrine. These questions concern the legal nature of these maxims, their number, contents and legal consequences. It also relates to the structure of the legal order and basic principles such as pacta sunt servanda. This chapter argues that principles such as the lex specialis and lex posterior maxims should be regarded as subordinate interpretative criteria, which implies inter alia that there can be no abstract hierarchy between the lex posterior and lex specialis maxims. The chapter also examines problems relating to the lex superior, lex posterior, and lex specialis maxims, both in legal theory and international law. It analyses the problems of successive (multilateral) treaties, barriers to derogation (pacta tertiis principle etc.), and an eventual hierarchy of conflict principles in international law.

Chapter 1 introduces the argument of the book. It presents the research question, that is, what is the place of the evolutionary interpretation of treaties within the rules of treaty interpretation codified in the Vienna Convention on the Law of Treaties (VCLT)? Treaty interpretation, a single combined operation, is a process of concentric encirclement, the interpreter going about establishing the intention of the parties in the treaty text, in the whole of the treaty, in general international law, and in the general principles of law. The argument of the book is that the evolutionary interpretation of treaties can be made only on the basis of an objectivized understanding of the intention of the parties, the intention of the parties being the most important thread running through the law of treaties.

Chapter 3 takes issue with the perceived wisdom that the approach to treaty interpretation opted for in the Vienna Convention has been that the general rule of interpretation put paid to the notion of the ‘intention of the parties’. Instead, the Chapter argues that the search for that intention, objectively defined, is the very aim of the process of treaty interpretation. In doing so, the Chapter adopts the view according to which the ‘intention of the parties’ refers to the will of the parties as determined through the application of the various means of interpretation recognized in Articles 31–33 of the Vienna Convention. Through an analysis of how the means of interpretation act together in the establishment of the intention of the parties, the Chapter shows that the evolutionary interpretation of treaties is in no way different from other types of interpretation.

Chapter 6 concludes the analysis by showing that the answer to the research question posed in Chapter 1 is that the evolutionary interpretation of treaties is an outcome of the process described in the general rule of interpretation. The Chapter makes the point that there is nothing exceptional about the evolutionary interpretation of treaties; like other types of interpretation it is based upon the objective establishment of the intention of the parties. The evolution involved in evolutionary interpretation should be understood as an evolution intended. The Chapter asks the question whether the evolutionary interpretation of treaties is, in fact, a supererogatory concept. It may be that more often than not we are better off not conceptualizing issues of interpretation in terms of evolution or of the evolutionary interpretation at all, as that may only serve to exoticize something that may already follow clearly from the wording of the treaty.

Chapter 2 analyses the inherent powers of international courts, as recognized in the customary law requirements of interpreting international treaties and settling related disputes in conformity with the principles of justice and international law. It argues that multilevel trade and investment adjudication lacks a coherent ‘constitutional justification’ and often neglects the ‘cosmopolitan functions’ of modern economic law and adjudication. In this context, it proposes a more coherent ‘judicial methodology’ in order to protect human rights, principles of justice, ‘judicial comity’ and the transnational rule of law for the benefit of citizens, thus setting the limits for both the scope of judicial review and the deference that is awarded to States by international tribunals. By acknowledging the ‘dual nature’ of modern legal systems and protecting the ‘object and purpose’ of economic rules economic adjudication can become more legitimate and coherent.

The issue of cultural genocide re-emerged in the legal context of genocide, in relation to the interpretation of its mens rea: whether the words ‘group destruction’ should be understood as the physical-biological destruction of the group members or the destruction of the group viewed as a socio-cultural unit. This chapter argues that the general principles of interpretation in international law tend towards a rather socio-cultural understanding of the mens rea. However, such an interpretation has become less sustainable in light of the prevailing physical-biological interpretation endorsed by both the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Court of Justice (ICJ), which may render any other interpretations contrary to the nullum crimen sine lege principle. The field of state responsibility for genocide should however be exempted from the constraints of criminal principles, provided that the principles of state responsibility are more clearly distinguished from those of individual criminal responsibility.

This chapter discusses the relevant legal instruments and the vehicle that can—under certain conditions—import them into investor–State arbitration: the concept of systemic integration enshrined in Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT). It begins with an overview of the rules of treaty interpretation in international law and some jurisprudence related to the concept of systemic integration. It then clarifies the relationship between Article 31(3)(c) and other means of treaty interpretation. Next, it turns to the content and scope of the concept of systemic integration, shedding light on the role Article 31(3)(c) may play in investor–State arbitration and how this provision may justify and guide the application of the principle of proportionality.

This chapter examines whether and under what circumstances international investment agreement (IIA) provisions on expropriation involve a proportionality analysis. The chapter is organized as follows. Section I explains the differences between direct and indirect expropriations. It also provides a brief overview of the jurisprudence resulting from the Argentine crisis on direct expropriation. Section II introduces the different approaches of determining an indirect expropriation and their use by the tribunals in the Argentine cases. Section III discusses some policy rationales for determining the existence of an indirect expropriation by applying the principle of proportionality. Section IV examines the legal reasoning in Tecmed, which is often adduced as the ‘leading case’ when it comes to the relevance of proportionality in the context of indirect expropriation. It shows that the methodology adopted by the Tecmed tribunal is insufficient reason to resort to proportionality analysis in interpreting each and every IIA provision on expropriation. Still, the different means of treaty interpretation reflected in Article 31 of the Vienna Convention on the Law of Treaties (VCLT) may justify the application of the principle of proportionality under certain circumstances, as Section V illustrates.

This chapter discusses whether judicial dialogue on international law between domestic courts may be conceptualized as a new means of interpretation—beyond the Vienna Convention on the Law of Treaties. After defining ‘dialogue’ and presenting its various potential iterations, the chapter argues that in fact judicial dialogue between domestic courts is required under international law, including the Vienna Convention. This is because domestic court decisions on international law may constitute subsequent practice which is to be taken into consideration when interpreting a treaty, in accordance with Article 31(3)(b) VCLT. But domestic court decisions may also constitute practice and/or reflect opinio juris, which domestic courts must find in order to determine the existence and content of customary international law. As such, domestic courts must engage with the relevant decisions on international law by domestic courts in other jurisdictions. They must engage in judicial dialogue as a means for interpreting international law.

In the early 1960s at the height of decolonization, the idea of post-colonialism and an initial form of post-colonial discourse developed in the branches of human rights, international trade, and state succession. The latter was of crucial importance to international lawyers in the new States as a means to jettison the established (post-)colonial system and advance their ‘global-solidarity project’ of a New International Economic Order (NIEO). They argued that the new states should have the power to ‘pick and choose’ which rules of the established international system corresponded to their needs and were accordingly acceptable to them, while other rules were not. In contrast, traditional Western scholars favoured the theory of continuity in the law of state succession. Along these front lines, the International Law Commission (ILC) was occupied by post-colonial discourse of state succession for years and became a central site of the battle for international law.

This chapter examines Judge Brower’s application of the rules of treaty interpretation set forth in the Vienna Convention on the Law of Treaties (VCLT). The analysis focuses on his separate or dissenting opinions in Austrian Airlines v The Slovak Republic, Daimler Financial Services AG v The Argentine Republic, and Renta 4 et al v The Russian Federation. The background of the VCLT’s critical importance for treaty interpretation and thus for international arbitration is examined, followed by a brief overview of Judge Brower’s adjudicative philosophy regarding the VCLT. Examples are provided of how Judge Brower has applied the general rule of treaty interpretation contained in VCLT Article 31, and also Article 32 regarding supplementary means of interpretation. An example is also given regarding how he has applied Article 33 on treaties authenticated in different languages. The final section concludes.

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.

This chapter argues that the WTO Appellate Body has not been consistent in applying Article 31 of the Vienna Convention on the Law of Treaties and considering the context of the relevant treaty text in light of its object and purpose. It has instead either been overly mechanistic in its textual interpretation or has strayed from the text, sometimes with the appearance of preferring an outcome-based result. Section I of the chapter discusses the appropriate role context should play in interpreting the WTO agreements. Sections II to IV critique aspects of the Appellate Body’s jurisprudence in the zeroing cases, the 1916 Act dispute, and the early safeguards cases as generating interpretive difficulties by failing to give enough attention to real-world context and object and purpose. Section V explores possible reasons for these departures by the Appellate Body from a contextualized textual analysis, and identifies some systemic implications of these decisions.

Despite its unbroken attractiveness, the international investment law regime has recently come under pressure to abandon its pre-occupation with investors’ rights and to focus more strongly on sustainable development concerns. This chapter critically reviews how arbitral jurisprudence has or has not reconciled sustainable development concerns with investment protection. Proceeding from the observation that most international investment agreements ought to be interpreted in accordance with Articles 31–33 of the Vienna Convention on the Law of Treaties (VCLT), it argues that it is neither necessary nor sufficient to change the substance of international investment law; instead, non-commercial concerns and State regulatory interests could more convincingly be reconciled with investment protection if arbitral tribunals faithfully and openly employed the applicable rules of treaty interpretation.

This chapter introduces the discussion of the key role of subsequent practice in the process of treaty adaptation and the formation of international law more generally. The chapter explains the need to explore the treaty modifying potential of subsequent practice—a topic that has, in recent years, generated an increasing amount of attention—and its potentially far-reaching effects for States and dispute settlement bodies alike. The chapter also defines treaty ‘modification’ in this context. The final section sets out the book's systematic approach to exploring the relevance and dynamism of the process of treaty modification by subsequent practice and showing—on a theoretical and practical level—how it can be identified and dealt with more consistently in the future.

This chapter focuses on the well-established role of subsequent practice in the interpretative process. It begins by examining the concept of ‘subsequent practice’ in light of the drafting history of the Vienna Convention on the Law of Treaties. It also sets out the constitutive elements of subsequent practice pursuant to Articles 31 and 32 VCLT, including the non-exhaustive notion of ‘practice’ and relevant actors, the scope of the term ‘subsequent’, the related notions of subsequent practice and subsequent agreement, the meaning of practice ‘in the application of the treaty’, and, crucially, the requirement of establishing the parties’ agreement. The chapter then explores the varying role accorded to subsequent practice by different dispute settlement bodies in the interpretative process, and, particularly, in relation to two special forms of dynamic interpretation: evolutionary interpretation and the doctrine of implied powers.

This concluding chapter gives an overview of the book’s main conclusions, painting a larger picture of the workings of the process of treaty modification by subsequent practice and customary law. It describes how the process may be considered and identified, in particular by dispute settlement bodies, in order to inject a degree of certainty, rather than to advocate formalism, and to explain how the possibility of treaty modification can be dealt with more consistently, with a greater sensitivity to context and circumstance. Finally, the chapter assesses the feasibility of codification of a rule on modification of treaties by subsequent practice, as attempted in the past, and reflects once more on the complexity, dynamism, and necessity of the process under international law.