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This chapter focuses on particular challenges in the interpretation of investment treaties before international tribunals. Interpretation of authoritative texts (divine, legal, or scholarly) is always difficult and apt to provoke engaged challenges. This is even more so if the community within which and for which application takes place does not share a widespread homogeneity of political, ideological, religious, or professional values. Investment arbitration by ad hoc tribunals is a novel and therefore unfamiliar form of international adjudication; as a result, it needs to make more effort to achieve political legitimacy — whatever the legal legitimacy founded on international treaties. The best approach is a resolutely technical and professional approach, that is, an approach that employs increasingly detailed drafting techniques in treaty-making, but also a predominantly textual approach linked to identifiable common elements of modern practice in interpretation.

This chapter examines the meaning and function of principles of treaty interpretation in general international law. Customary international law on treaty interpretation is partly and mostly codified in Articles 31 to 33 of the Vienna Convention on the Law of Treaties (VCLT), which are discussed in their historical context. The chapter explains that even if treaty-based, treaty interpretation is governed by principles rather than rules. It also provides an introduction to some of the Appellate Body's techniques of interpretation and reflects on the need and status of special principles of treaty interpretation.

This chapter discusses the Appellate Body's use of supplementary means of interpretation, other language versions, subsequent practice and agreements, and special meanings in interpreting the covered agreements. Previous chapters have touched on these issues and this chapter completes the analysis. Articles 31(3)(a)–(b), 31(4), 32, and 33 VCLT share the characteristic that they are as much concerned with the burden to proof the meaning of the treaty as they are with guiding the process of interpretation as such. Also, they often overlap with other principles of treaty interpretations discussed in other chapters of this book. The Appellate Body does not easily use supplementary means of interpretation, other language versions, subsequent practice, or special meanings on its own initiative. These principles of interpretation differ from the principles of contextual and effective interpretation, which the Appellate Body applies almost as a matter of course.

This chapter demonstrates how Article 31(1) VCLT is not merely about the ordinary meaning and its context; rather the Appellate Body has relied on this basic principle to introduce a broader concept of contextualism. After more than fourteen years of jurisprudence, the Appellate Body's methods to explain and justify its decisions about the meaning of the WTO treaty language are starting to change. This shift is yet to infiltrate the submissions of disputants and the reports of most panels.

This chapter defines the subject of treaty interpretation in WTO dispute settlement and discusses how and what the Appellate Body considers as WTO treaty language. Special attention is given to schedules of commitments and to the suggested constitutional status of the WTO covered agreements.

This chapter seeks to establish how the Appellate Body recognizes certain values and systemic concerns in the WTO covered agreements through the principle of effectiveness. It also illustrates the relationship between the principle of effectiveness and contextualism. The function and meaning of the principle of effectiveness in the Appellate Body's interpretation of the WTO covered agreements illustrates why the ILC ultimately and wisely decided not to codify the principle. The principle is rarely the sole guidance and explanation for a particular interpretation. In most cases, it accompanies the application of other principles of interpretation and functions as a touchstone to review the possible meanings of the treaty language. The principle can also used be a vehicle to emphasize certain values in the treaty. This is common when an adjudicator continuously revisits the same treaty language.

This chapter raises the question of how and when to interpret silence in the WTO covered agreements. The notion of ‘silence’ in treaty language is used as an alternative mode of thinking about so-called gaps in treaties. The chapter attempts to categorize certain types of silence in treaty language, and analyze how the Appellate Body responds to such silences. The first section briefly sketches the debate in general international law and WTO law to illustrate the unsatisfactory standard discourse. As an alternative, the notion of ‘silence’ is suggested as a more useful point of reference. The second section distinguishes between different types of silences, such as procedural and substantive silences. One of the underlying questions is whether the Appellate Body has perceived Article 3.2 DSU as a constraint in interpreting silence. It appears that this has not been the case, at least with respect to procedural silences.

This chapter develops the argument that the influence of general international law and other fields of international law on the meaning of the WTO covered agreements does not depend only on the (implicit) application of Article 31(3)(c) VCLT. Relying on previous chapters, it posits that Article 31(3)(c) VCLT is only an ancillary justification for interpreting the WTO covered agreements against the background of 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.

The interpretation of human rights treaties is widely believed to be subject to special rules, deviating from generally accepted interpretative canons of international law. The view is most clearly expressed by the European Court of Human Rights, which claims that in interpreting the European Convention on Human Rights (ECHR) ‘regard must be had to its special character as a treaty for the collective enforcement of human rights and fundamental freedoms’. This chapter argues that the Court's method of interpretation is firmly rooted within the traditional canons of interpretation of general international law, and that the method of subsidiary review does not deviate substantially from generally accepted methods of review in international law. It suggests that general principles of treaty interpretation have had — and continue to have — tremendous impact on human rights law, whereas human rights law has not had much of an impact on general international law on the methodological plane, although the substance of human rights law — alongside all other branches of international law — will of course be part of the general body of international law.

This chapter focuses on changed circumstances in investment law with a special focus on necessity. Section B first deals with the diverging findings of the different investment tribunals with respect to Argentina's necessity defence. After a brief description of the factual background and of the relevant standards under treaty law and the customary law of State responsibility, the tribunals' decisions will be discussed and a categorization of their approaches attempted. Section C analyzes the different approaches from a broader international law perspective. It is argued that the ‘separation/two-step approach’ which was adopted by the CMS Annulment Committee and the UNCITRAL tribunal is the one most in line with general international law.

This chapter sketches relevant features of the subject of analysis: the WTO dispute settlement system. This book on treaty interpretation by the WTO Appellate Body is essentially concerned with how the Appellate Body has used interpretation to simultaneously assert and justify its exercise of the judicial function in the WTO. This presupposes an awareness of the characteristics of this dispute settlement system, its jurisdiction, and the law that applies in adjudicating disputes between WTO Members. For that purpose, the chapter introduces the WTO dispute settlement system, its jurisdiction, the applicable law, and the applicable principles of treaty interpretation. It also contrasts the effect of authentic interpretations of the WTO treaty language with that of judicial interpretations, mostly from a practical perspective.

This chapter is the first comprehensive examination of interpretative competence. Given that international law is consensual, it is to some extent State consent that determines who may interpret treaties. There are concepts of auto-interpretation, authentic and authoritative interpretation, as well as concurrent powers of interpretation. These concepts are examined in detail. Interpretation of treaties, Security Council resolutions and unilateral acts is considered. The relevance of judicial review in terms of concurrent powers interpretation is also examined, and some national judicial practice is addressed.

Much has been written on the legal implications of the international regulation of GMOs. This chapter does not reproduce this discussion, but rather considers how general rules of international law, together with more general trends in related legal and policy fields, are likely to prove increasingly apposite in the ongoing debate over how to manage and govern GM activity. In particular, it considers two specific issues: first, the role of treaty interpretation in promoting synergies and reconciling apparently conflicting primary rules; and, secondly, the utility of the concept of sustainable development in determining a balanced framework for the inclusion of socio-economic considerations within GM decision-making processes, as permitted under the Cartagena Protocol. The chapter concludes that an approach which concentrates solely on the regulatory detail will invariably ignore the importance of general international law in regulating such an issue.

This chapter provides a detailed and transparent account of the methodology to be used to produce a meaning of the right to health. It argues that the act of legal interpretation is not simply the process of attributing a meaning to the right to health but ultimately an act of persuasion. Moreover, the persuasive appeal of an interpretation offered for the right to health will be enhanced if it is able to satisfy four criteria — it must be principled, clear and practical, demonstrate coherence both in its reasoning and within the system of international law, and be sensitive to the nature of the socio-political context within individual states and the international legal order.

This chapter assesses the current practice of states (“consensus”) as another factor affecting the margin of appreciation. It is controversial amongst commentators, some of whom regard it as a distraction when selecting standards. However, the consensus factor is justified on the basis of state consent, the sovereign equality of states, and the Vienna Convention on the Law of Treaties, particularly Article 31(3)(b). Since human rights treaties have a special status (they provide standards of protection to individuals) interpretation based on state practice can only be relevant as an indicator of where differing standards might be appropriate. The “consensus” factor need not be measured with precision. The chapter considers the role of interpretative concepts such as “evolutive interpretation”, “autonomous meanings”, and “conventionality control”. It discusses deference to other international norms (e.g., customary international law, jus cogens, obligations erga omnes), institutions and organisations (e.g., the UN Security Council, the European Community).

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 focuses on the inherent powers of the Appellate Body, and how the availability and exercise of such powers influences the interpretation and application of procedural rules in WTO dispute settlement. The analysis in this chapter builds on the distinction, made in Chapter 4, between procedural and substantive silences in WTO treaty language and the Appellate Body's interpretation of those silences. The chapter helps to explain how and why the appreciation of the judicial function of the WTO Appellate Body is commonly too narrowly construed on the basis of the DSU.

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.