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This chapter discusses ‘constitutional’ interpretation of a Charter. It compares the United Nations Charter and the United States Constitution, citing that both provide institutional mechanisms to accomplish goals identified only as ‘majestic generalities.’ As with the U.S. Constitution, there also appears to be a separation of powers notion at work within the UN Charter. The chapter also provides details on the people, procedure, and reason behind interpreting a Charter. It considers how international organization organs have interpreted their chapters, indicating the malleability of both institutional charters and the underlying rules of treaty interpretation. In detailing the procedure of interpreting a Charter, it mentions the Vienna Rules of Treaty Interpretation, institutional practice, implied powers, and intent. The interpretation of international organization charters is more than the sum of the application of rules — whether contained in the Vienna Convention on the Law of Treaties or reserved for ‘constitutional’ treaties.

This chapter examines the methods available to international courts to refer to the practice of other international judicial bodies, and to interpret and apply their procedure and remedies in similar ways. It begins by outlining the sources of law relating to procedure and remedies, which are principally the constitutive instruments and rules of procedure of international courts. Such instruments are not drafted in identical terms, and often contain lacunae. It examines what international courts do when faced with lacunae in these sources. It then discusses the concept of inherent powers in detail, argues that the exercise of such powers by international courts is justified, and reviews their relevant practice. The possible sources of inherent powers are examined, and it is concluded that they lie in the need of international courts to fulfil their functions, being, principally, the settlement of international disputes and the proper administration of international justice. These functions also serve as limitations on the exercise of inherent powers.

Once subject only to modest evaluation in the legal literature, questions relating to the termination and renegotiation of international investment treaties are currently emerging as future key issues in the present transitional phase of international investment law. Against this background, this chapter proceeds to take a closer look at the public international law framework applicable to these two core procedural issues by discussing a number of legal issues such as the lawfulness or normative consequences of as well as alternatives to the current practice of an increasing number of States to terminate—as well as to frequently renegotiate—their investment agreements.

This chapter examines the deployment of the concept of jus cogens during the drafting of the 1969 Vienna Convention on the Law of Treaties. First, it is argued that investigating the conditions under which jus cogens entered into international legal discourse demonstrates that many elements of international law typically deemed axiomatic were generated through sustained competition. If contemporary international law can claim ‘universality’, it must be recognized that jus cogens, arguably the strongest and most explicit source of such a claim, has been constructed through far-reaching conflicts between competing world visions. Second, jus cogens’ contentious history highlights the difficulty of developing a properly emancipatory political programme through lofty appraisals of international law’s normative force. Jus cogens has contributed only marginally to the effort to consolidate the achievements of decolonization. It is concluded that jus cogens has proven no more valuable a means of furthering respect for sovereign equality or facilitating a global redistribution of wealth, than the formalism it was intended to supplant.

Under which conditions and to what extent can subsequent State practice legitimately influence the interpretation or even modify international treaties? This issue of general international law has been on the European Court of Human Rights’ agenda for quite some time and is ongoing as evidenced in Hassan v The United Kingdom. While State practice has traditionally played a role in the interpretation of the European Convention on Human Rights in its dynamic interpretation, the Court’s methodology to determine under what circumstance and to what extent State practice is able to affect the scope and meaning of the Convention remains uncertain. This chapter develops a general theoretical framework, which rationalizes the normative value of subsequent practice in the context of human rights treaty interpretation and sets out its relevant standards. Drawing from the International Law Commission’s work on ‘Subsequent agreements and subsequent practice in relation to interpretation of treaties’, the author argues that the Vienna rules provide a useful point of departure without the need for additional means of interpretation. This matrix allows sufficient flexibility to accommodate the specific nature of human rights law. The author proposes a normative scale, which can guide the Court in enhancing its methodological consistency. Pursuant to this scale, exigencies for the density of subsequent practice and the degree of acceptance pursuant to Article 38(1)(b) VCLT vary depending on the nature of the rule and the claimed normative value of State practice. Once State practice meets the required standard, it can sustain the legitimacy of treaty interpretation and serve as a catalyst for the advancement of human rights.

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.

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 deals further with the technical difficulties of legal classification, and begins to demonstrate how a simple choice between a law and a nonlaw form of agreement does not exist in the peace agreement context. Rather, opting for legal form for peace agreements in intrastate conflict involves sacrificing a correlation between the parties to the written agreement and the parties to the underlying ‘agreement’. The chapter analyses whether the difficulty of finding a legal form for peace agreements matters to their implementation, or is a purely academic matter.

This chapter examines how equitable notions included in treaties should be construed. While in the law of the sea treaties equity is understood as reflecting general international law, the ‘fair and equitable’ treatment of foreign investors under international investment treaties is frequently denoted as autonomous treaty-based standard giving rise to new customary law on investment. The chapter examines the application of treaty interpretation methods to ‘fair and equitable treatment’ and establishes that so-called ‘autonomous’ construction cannot be sustained under the Vienna Convention on the Law of Treaties. Instead, ‘fair and equitable treatment’ reflects the general international law standard on the treatment of foreign investors. This chapter also concentrates on the construction of ‘fair and equitable treatment’ in the 2001 opinion of the NAFTA Free Trade Commission, and subsequent reaction by NAFTA Tribunals, as an issue of the agency of interpretation (above Chapter 16).

The Committee on Economic, Social and Cultural Rights has developed a number of methods for interpreting the ICESCR that are often described as ‘special’ and as falling outside the framework of VCLT articles 31–33. However, this chapter argues that the VCLT can accommodate these methods. The real problem with the Committee’s interpretations is not their (il)legality but their (lack of) legitimacy. The Committee seems to equate legitimacy with sufficient State support. Accordingly, it constantly attempts to balance a moral reading of the Covenant with finding common ground among States parties. Yet legitimacy may derive not only from a source, such as State consent, but also from following a process of interpretation that is adequate and fair. For an interpretive practice to be legitimate, the interpreter must, at the very least, adhere to a set of principles, apply these coherently, and lay bare how a particular interpretive outcome is reached.

Chapter 1 introduces the key question asked by the book: whether mental health law should be abolished or reformed and defines all the key terms (e.g. mental health law, mental impairment, involuntary detention and treatment, voluntary treatment, abolition and reform, etc). It puts mental health law into its wider social context pointing out that while at least 20 per cent of the community in any given year and 50 per cent in their lifetime have a mental health problem, mental health law only applies to a relatively small number of persons with severe mental health problems who are medically assessed to be at risk of harming themselves or others. It sets out the background to the fierce controversy about the future of mental health law during the United Nations Convention on the Rights of Persons with Disabilities (CRPD) negotiations and since its entry into force in 2008. It explains the conceptual framework for the book being human rights treaty interpretation and the jurisprudential or ethical analysis consistent with Ronald Dworkin of three core CRPD and human rights concepts—dignity (including autonomy), equality, and participation—to create the ‘interpretive compass.’ It discusses the social model of disability, the medical model, the human rights model, and the interactive model. It defines the scope of the book in that it excludes consideration of mental health specific criminal law doctrines like fitness to plead and the insanity defence and clarifies that the focus is on mental health law rather than other forms of substitute decision-making like guardianship. It explains the structure of the book.

While an intentionalist approach to treaty interpretation seems more deferential to state consent, the dominant interpretive paradigm prevailing in modern international law is textualism, despite the formally holistic structure of the interpretive regime set forth in the Vienna Convention on the Law of Treaties. This chapter sets out to investigate the genealogy of this paradoxical feature of the treaty interpretation regime and identifies a series of factors primarily pertaining to the intellectual history of the discipline of international law and the historical circumstances prevailing at the time of the adoption of the Vienna Convention that could plausibly explain the superior status of textualism. It is argued that textualism cannot claim any trans-historical validity and that its historical contingency needs to be openly acknowledged and broadly investigated.

This chapter argues that the interpretation of international law by domestic courts is situated between a universal aspiration of international law—connected with claims for a need for uniform interpretation—and the requirements that international law is applied with a view to the local realities. The contribution argues that although domestic courts are not technically under an obligation to make use of the international rules of interpretation, a normative preference on the part of the international legal system exists which militates for a common approach to (treaty) interpretation. Articles 31–33 of the Vienna Convention on the Law of Treaties supply the necessary toolbox in this regard. In and of themselves, these international rules of interpretation do not demand very much of domestic judges. It is convergence at a very high level of abstraction which is called for in the interest of a basic systemic unity of international law.

This chapter uses the metaphor of the game to explain how interpretation works in international law. The rules of play are known and complied with, even though which cards to play is left to the skills and strategies of the individual players. In order to win the game, one must secure adherence to his or her own interpretation of the law and players can resort to a wide array of strategies to enhance the effectiveness of their game. After examining the practice of ‘how to do interpretation’, the focus of analysis is shifted to the meta-discourse of ‘playing the game of game playing’, where such fundamental questions as what is the nature of the game and who gets to decide the rules are addressed. Finally, the issues of why the players think that the game is worth the candle and why this question is hardly ever posed are tackled.

This chapter briefly discusses the three ‘key points of tension’ or normative effects identified between the demands of trade and investment agreements that focus mainly on economic growth, and regulations for the environmental and social development, including the efforts of States to comply with specific trade and investment obligations in other international treaties. These points of tension are described and illustrated with interesting examples. The first tension involves the concern that new trade liberalization obligations of non-discrimination and most-favoured nation (MFN) treatment and new investment liberalization obligations, in certain specific sectors, could prevent States from effectively enacting trade-related measures to prevent unsustainable development. A second tension involves concerns that through a new trade and investment agreement, there will be increased incentives for trade or investment-led economic growth, which can exacerbate environmental and social problems that already exist at the domestic level due to lack of enforcement of the law. The third tension involves concerns that application of trade or investment rules for liberalization will inadvertently support unsustainable growth in obsolete technologies and sectors.

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.

The Agreement on a Unified Patent Court (UPCA) of 18 February 2013 is a treaty within the meaning of the Vienna Convention on the Law of Treaties (VCLT) of 23 May 1969. It is therefore subject to the rules of that Treaty as regards its creation, interpretation, including its uniform practice supporting the interpretation, and the possibility of withdrawing from or terminating the Agreement. For the relevant provisions of the VCLT, reference is made to Appendix 13 of this Commentary in which the Treaty is reproduced. Reference is also made to the statements regarding ‘uniform practice’ according to the VCLT in the Introduction (→ Introduction to this Commentary, mn 133).

Chapter 1 introduces the context and relevance of the book; its scope, its methods, and outline. It articulates the challenges faced by the international community as a result of the separation of the international regime for the protection of refugees and stateless persons respectively into two distinct instruments. It explains that the book focuses on the potential of stateless persons who are outside their country of former habitual residence to obtain protection as refugees in international law. Hence, it is primarily concerned with stateless persons on the move between states, or stateless persons who have already moved (and not with the stateless in situ), because it is members of this group who require recognition of their status in order to establish themselves in a new country following a decision to flee.

The process of interpreting the treaties of international economic law is a key aspect of the analysis that is undertaken in this book. Of particular importance is the potential relevance of the international climate regime to interpreting international economic law—a regime recently rejuvenated by the Paris Agreement, and in fulfilment of whose aims emissions trading schemes are adopted and maintained. Chapter 2 therefore sets out the methodology of the book—namely, interpreting and applying international economic law to emissions trading schemes—and assesses whether and how the international climate regime might play a role in that process.