Eirik Bjorge
- Published in print:
- 2014
- Published Online:
- September 2014
- ISBN:
- 9780198716143
- eISBN:
- 9780191784873
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198716143.001.0001
- Subject:
- Law, Public International Law, Legal History
The evolutionary interpretation of treaties has proven in recent times to be one of the most controversial topics of the law of treaties. The reason for this is that the evolutionary interpretation ...
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The evolutionary interpretation of treaties has proven in recent times to be one of the most controversial topics of the law of treaties. The reason for this is that the evolutionary interpretation of treaties has been seen as going against the very grain of the law of treaties. Given this controversy, this book asks: what is the place of the evolutionary interpretation within the law of treaties? The book places the evolutionary interpretation of treaties on a firm footing within the Vienna rules of treaty interpretation, as codified in Articles 31–33 of the Vienna Convention on the Law of Treaties (VCLT). Across the board, these rules are taken by international courts and tribunals to be the gold standard of treaty interpretation, and the book brings out how the approach by different courts is uniform and coherent, rather than fragmented. Against this background the book shows that the evolutionary interpretation of treaties—in common with all other types of interpretation—is based upon an objective understanding of the intention of the parties. In order to marry intention and evolution, the book shows that, on the one hand, evolutionary interpretation is the product of the correct application of Articles 31–33 and, on the other, that the rules of treaty interpretation are geared towards the establishment of the intention of the parties. The evolutionary interpretation of treaties represents the acknowledgment on the part of the treaty interpreter of an evolution intended by the parties to the treaty.Less
The evolutionary interpretation of treaties has proven in recent times to be one of the most controversial topics of the law of treaties. The reason for this is that the evolutionary interpretation of treaties has been seen as going against the very grain of the law of treaties. Given this controversy, this book asks: what is the place of the evolutionary interpretation within the law of treaties? The book places the evolutionary interpretation of treaties on a firm footing within the Vienna rules of treaty interpretation, as codified in Articles 31–33 of the Vienna Convention on the Law of Treaties (VCLT). Across the board, these rules are taken by international courts and tribunals to be the gold standard of treaty interpretation, and the book brings out how the approach by different courts is uniform and coherent, rather than fragmented. Against this background the book shows that the evolutionary interpretation of treaties—in common with all other types of interpretation—is based upon an objective understanding of the intention of the parties. In order to marry intention and evolution, the book shows that, on the one hand, evolutionary interpretation is the product of the correct application of Articles 31–33 and, on the other, that the rules of treaty interpretation are geared towards the establishment of the intention of the parties. The evolutionary interpretation of treaties represents the acknowledgment on the part of the treaty interpreter of an evolution intended by the parties to the treaty.
Magdalena Forowicz
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199592678
- eISBN:
- 9780191595646
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199592678.003.0002
- Subject:
- Law, Human Rights and Immigration
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 ...
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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.Less
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.
Erich Vranes
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199562787
- eISBN:
- 9780191705366
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199562787.003.0003
- Subject:
- Law, Public International Law, EU Law
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. ...
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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.Less
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.
Eirik Bjorge
- Published in print:
- 2014
- Published Online:
- September 2014
- ISBN:
- 9780198716143
- eISBN:
- 9780191784873
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198716143.003.0001
- Subject:
- Law, Public International Law, Legal History
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 ...
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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.Less
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.
Eirik Bjorge
- Published in print:
- 2014
- Published Online:
- September 2014
- ISBN:
- 9780198716143
- eISBN:
- 9780191784873
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198716143.003.0003
- Subject:
- Law, Public International Law, Legal History
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 ...
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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.Less
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.
Eirik Bjorge
- Published in print:
- 2014
- Published Online:
- September 2014
- ISBN:
- 9780198716143
- eISBN:
- 9780191784873
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198716143.003.0006
- Subject:
- Law, Public International Law, Legal History
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 ...
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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.Less
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.
Irina Buga
- Published in print:
- 2018
- Published Online:
- May 2018
- ISBN:
- 9780198787822
- eISBN:
- 9780191829888
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198787822.001.0001
- Subject:
- Law, Public International Law, Company and Commercial 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 ...
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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.Less
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.
Ernst-Ulrich Petersmann
- Published in print:
- 2014
- Published Online:
- November 2014
- ISBN:
- 9780198716945
- eISBN:
- 9780191785627
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198716945.003.0002
- Subject:
- Law, Public International Law, Comparative Law
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 ...
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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.Less
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.
Elisa Novic
- Published in print:
- 2016
- Published Online:
- December 2016
- ISBN:
- 9780198787167
- eISBN:
- 9780191829253
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198787167.003.0003
- Subject:
- Law, Human Rights and Immigration, Public International Law
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 ...
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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.Less
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.
Irina Buga
- Published in print:
- 2018
- Published Online:
- May 2018
- ISBN:
- 9780198787822
- eISBN:
- 9780191829888
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198787822.003.0001
- Subject:
- Law, Public International Law, Company and Commercial Law
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 ...
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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.Less
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.
Irina Buga
- Published in print:
- 2018
- Published Online:
- May 2018
- ISBN:
- 9780198787822
- eISBN:
- 9780191829888
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198787822.003.0002
- Subject:
- Law, Public International Law, Company and Commercial Law
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 ...
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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.Less
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.
Irina Buga
- Published in print:
- 2018
- Published Online:
- May 2018
- ISBN:
- 9780198787822
- eISBN:
- 9780191829888
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198787822.003.0006
- Subject:
- Law, Public International Law, Company and Commercial Law
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 ...
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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.Less
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.
Gebhard Bücheler
- Published in print:
- 2015
- Published Online:
- November 2015
- ISBN:
- 9780198724339
- eISBN:
- 9780191792045
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198724339.003.0004
- Subject:
- Law, Public International Law, Company and Commercial Law
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 ...
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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.Less
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.
Gebhard Bücheler
- Published in print:
- 2015
- Published Online:
- November 2015
- ISBN:
- 9780198724339
- eISBN:
- 9780191792045
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198724339.003.0005
- Subject:
- Law, Public International Law, Company and Commercial Law
This chapter examines whether and under what circumstances international investment agreement (IIA) provisions on expropriation involve a proportionality analysis. The chapter is organized as ...
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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.Less
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.
Antonios Tzanakopoulos
- Published in print:
- 2016
- Published Online:
- March 2016
- ISBN:
- 9780198738923
- eISBN:
- 9780191802126
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198738923.003.0005
- Subject:
- Law, Public International Law
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 ...
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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.Less
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.
Stanimir A Alexandrov
- Published in print:
- 2015
- Published Online:
- January 2016
- ISBN:
- 9780198739807
- eISBN:
- 9780191802775
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198739807.003.0028
- Subject:
- Law, Public International Law, Company and Commercial 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 ...
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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.Less
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.
Meredith Kolsky Lewis
- Published in print:
- 2016
- Published Online:
- January 2017
- ISBN:
- 9780198778257
- eISBN:
- 9780191823763
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198778257.003.0009
- Subject:
- Law, Public International Law
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 ...
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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.Less
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.
Katharina Berner
- Published in print:
- 2016
- Published Online:
- April 2016
- ISBN:
- 9780198738428
- eISBN:
- 9780191801723
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198738428.003.0009
- Subject:
- Law, Public International Law, Environmental and Energy Law
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 ...
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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.Less
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.
Ineta Ziemele
- Published in print:
- 2018
- Published Online:
- November 2018
- ISBN:
- 9780198830009
- eISBN:
- 9780191868399
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198830009.003.0002
- Subject:
- Law, Public International Law, Human Rights and Immigration
The concept of ‘European consensus’ is the creation of the European Court of Human Rights. Early on, the Court determined that the European Convention on Human Rights is a living instrument and that, ...
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The concept of ‘European consensus’ is the creation of the European Court of Human Rights. Early on, the Court determined that the European Convention on Human Rights is a living instrument and that, in interpreting the Convention over time, the Court has to take the changing attitudes in societies into consideration. The European consensus is an element within the so-called evolutive interpretation of the Convention. Nevertheless, the details as to its origin and scope remain controversial and give rise, from time to time, to a criticism of the Court as to its use of the concept of European consensus in the case at hand. This chapter focuses on any possible analogy that the concept of European consensus may have to the sources of international law and its possible relationship with the general rule of interpretation of a treaty. This is done with the aim of providing the elements of reflection within the debate which claim that the Court, in interpreting the Convention, overshadows State consent on the scope and content of the Convention. The chapter concludes that, upon a closer look, the Court has resorted to European consensus largely within the confines of the general rule of interpretation of a treaty. The notion has denoted both subsequent State practice as well as new regional customary law. Clearer differentiation between these types of situation would help the Court avoid the criticism of too much evolutive interpretation.Less
The concept of ‘European consensus’ is the creation of the European Court of Human Rights. Early on, the Court determined that the European Convention on Human Rights is a living instrument and that, in interpreting the Convention over time, the Court has to take the changing attitudes in societies into consideration. The European consensus is an element within the so-called evolutive interpretation of the Convention. Nevertheless, the details as to its origin and scope remain controversial and give rise, from time to time, to a criticism of the Court as to its use of the concept of European consensus in the case at hand. This chapter focuses on any possible analogy that the concept of European consensus may have to the sources of international law and its possible relationship with the general rule of interpretation of a treaty. This is done with the aim of providing the elements of reflection within the debate which claim that the Court, in interpreting the Convention, overshadows State consent on the scope and content of the Convention. The chapter concludes that, upon a closer look, the Court has resorted to European consensus largely within the confines of the general rule of interpretation of a treaty. The notion has denoted both subsequent State practice as well as new regional customary law. Clearer differentiation between these types of situation would help the Court avoid the criticism of too much evolutive interpretation.
Eirik Bjorge
- Published in print:
- 2015
- Published Online:
- November 2015
- ISBN:
- 9780198743637
- eISBN:
- 9780191803246
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198743637.003.0003
- Subject:
- Law, Public International Law, Human Rights and Immigration
This chapter sets out the constitutional starting point for domestic courts when they adjudicate cases touching on the relationship between domestic law and the European Convention on Human Rights ...
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This chapter sets out the constitutional starting point for domestic courts when they adjudicate cases touching on the relationship between domestic law and the European Convention on Human Rights (ECHR), the conceptual relationship between the domestic law, and the Convention. The way in which the Convention rights are incorporated into municipal law will perforce structure the options which are open to the domestic courts seized of a case in which municipal law seems to say one thing and the ECHR another. By distilling the conceptual relationship between domestic law and the ECHR in German, French, and UK law, this chapter sets the scene for the analysis in the following chapters. In this regard it deals with the different structuring concepts of dualism and monism, and also shows how, in their interpretation and application of the Convention, the domestic courts increasingly rely on the Vienna Convention in the Law of Treaties.Less
This chapter sets out the constitutional starting point for domestic courts when they adjudicate cases touching on the relationship between domestic law and the European Convention on Human Rights (ECHR), the conceptual relationship between the domestic law, and the Convention. The way in which the Convention rights are incorporated into municipal law will perforce structure the options which are open to the domestic courts seized of a case in which municipal law seems to say one thing and the ECHR another. By distilling the conceptual relationship between domestic law and the ECHR in German, French, and UK law, this chapter sets the scene for the analysis in the following chapters. In this regard it deals with the different structuring concepts of dualism and monism, and also shows how, in their interpretation and application of the Convention, the domestic courts increasingly rely on the Vienna Convention in the Law of Treaties.
