Contents
Foreword by Sir Michael Wood;
Preface to Paperback Edition;
Preface to First Edition;
Acknowledgments;
Abbreviations;
Note on Citations .;
Table of Cases;
Table of Treaties and Legislation;
PART 1. OVERVIEW, HISTORY, MATERIALS, AND DRAMA TIS PERSONAE
The Vienna Rules;
1. -A Single Set of Rules of Interpretation;
1. Introduction;
1.1 Guide to analytical approach;
2. Applicability of the Vienna Rules Generally;
2.1 History of recognition by the Ie] of the Vienna rules;
2.2 Express endorsement of the Vienna rules by the IC];
2.3 Endorsement of the Vienna rules by other international courts and tribunals;
2.4 Endorsement of the Vienna rules by national courts;
3. Definitions and Key Concepts;
3.1 Treaty;
3.2 Party, signatory, etc;
3.3 Treaty relations;
3.4 Preparatory work;
3.5 Intertemporallaw;
3.6 'Interpretation' and 'application';
4. The Process ofInterpretation and the Nature of the Rules;
4.1 The process of interpretation and the principle of autonomous interpretation;
4.2 A general 'rule' and 'rules' of interpretation;
4.3 Are the Vienna rules 'rules'?;
5. Four Examples;
5.1 Interpretation by the European Court of Human Rights-a typical approach ;
5.2 An interpretation by an arbitral tribunal of the International Centre for Settlement of Investment Disputes (ICSID)-interpretation and application;
5.3 Interpretation within a national legal system-contrasting application of Vienna rules and domestic precedent;
5.4 Interpretation within a national legal system-increasing awareness of the Vienna rules in courts in the UK;
2. Development of Rules of Interpretation;
1. Introduction;
2. Treaty Interpretation in the Greco-Roman Era;
3. Grotius, Pufendorf, Vattel, and Canons of Interpretation;
4. The Harvard Draft Convention on the Law of Treaties;
5. The Permanent Court of International Justice;
6. Restrictive Interpretation and Effectiveness;
7. Institut de Droit International;
8. The Practice of the International Court of Justice Before the Vienna Convention;
9. The New Haven School and World Public Order;
10. The Work of the International Law Commission and the Vienna Conference;
3. Interpretative Material Generated in Making Treaties;
1. Introduction;
2. Making Treaties;
2.1 Who initiates and negotiates treaties?;
2.2 Negotiating and drawing up a treaty;
2.2.1 Negotiation and full powers;
2.3 Adoption and authentication of a treaty text;
2.4 Concluded and other instruments;
2.4.1 Final acts and protocols.;
2.4.2 Distinguishing treaties from other instruments;
3. Statements or Declarations by States Affecting Interpretation of Treaties;
3.1 Reservations;
3.2 Interpretative declarations;
3.3 Differentiating between reservations and interpretative declarations;
3.4 Wrinkles in the distinction;
3.5 Confusing terminology;
3.6 Significance of how the maker characterizes a statement or declaration;
3.7 'Conditional declarations';
3.8 Other declarations;
3.9 Statements in response to declarations;
3.10 Effects of responses to interpretative declarations;
3.11 Effects of interpretative declarations;
3.12 Decisions of courts and tribunals on interpretative declarations ;
3.13 Conclusion on interpretative declarations;
4. Preparatory Materials;
4.1 How far does preparatory work trace history? ;
4.1.1 What illuminates a common understanding?
4.1.2 Tracing a historical line;
4.1.3 Looking at the main source;
4.1.4 Using all material available to negotiators ;
4.2 Whether preparatory work can be differentially admissible;
4.3 Documents associated with treaty negotiations 10:
4.4 Admissibility of documents from a unilateral source ;
4. Who Uses the Vienna Convention to Interpret Treaties? ;
1. Introduction;
2. International Organizations;
2.1 General interpretative competence in international organizations;
2.2 The two Vienna Conventions on the Law of Treaties ;
2.3 The United Nations and other organizations ;
2.4 The European Community and European Union;
3. International Courts and Tribunals;
3.1 International Court of Justice;
3.2 Arbitration;
3.3 The World ~r~de Organization Dispute Settlement Understanding ;
3.4 The International Centre for Settlement of Investment Disputes (ICSID) ;
3.5 The European Court of Human Rights;
3.6 The European Court of Justice;
3.6.1 The treaties founding the Community ;
3.6.2 Treaties to which the Community is a party with non-member states ;
3.6.3 Community instruments giving effect to treaties with non-members;
3.7 Other international courts and tribunals;
4. National Legal Systems ;
4.1 Implementation of treaties;
4.2 Judicial interpretation within national legal systems ;
4.2.1 Parties to the Vienna Convention generally ;
4.2.2 The common law tradition ;
4.2.3 States which are not parties to the Vienna Convention ;
PART II. INTERPRETATION APPLYING THE VIENNA CONVENTION ON THE LAW OF TREATIES;
A. The General Rule;
5. The General Rule: (1) The Treaty, its Terms, and their Ordinary Meaning ;
1. A 'Treaty';
1.1 The 'treaty' and its 'terms';
1.2 The sound of silence-absent and implied terms;
2. 'Good Faith';
2.1 History and preparatory work relating to 'good faith';
2.2 Ordinary meaning of 'good faith';
2.3 'Good faith' in context and in the light of the Convention's object and purpose;
2.4 Issues and practice;
2.4.1 'Good faith' generally;
2.4.2 'Good faith' meaning reasonableness;
2.4.3 'Good faith' limiting interpretation of a power;
2.4.4 'Good faith' requiring balancing of treaty elements;
2.4.5 'Good faith' and the principle of effectiveness
(ur res magis vale at quam pereat);
3.Ordinary Meaning';
3.1 History and preparatory work;
3.2 Ordinary meaning of 'ordinary meaning to be given to the terms of the treaty';
3.3 Issues and practice;
3.3.1 Role of ordinary meaning;
3.3.2 Dictionaries and other sources of definitions;
3.3.3 Literal meanings of single terms;
3.3.4 No ordinary meaning or no single one?
3.3.5 Generic terms;
3.3.6 'Ordinary'to whom?;
3.3. 7 Treaty language and terms;
3.3.8 Terms and concepts;
4.'Context';
4.1 Background and context;
4.2 Issues and practice;
4.2.1 Immediate context-grammar and syntax ;
4.2.2 Title, headings, and chapeaux ;
4.2.3 Context showing structure or scheme;
4.2.4 Related and contrasting provisions;
4.2.5 Preamble ;
4.2.6 Punctuation and syntax;
5. Object and Purpose';
5.1 History and preparatory work relating to 'object and purpose';
5.2 Ordinary Meaning of 'object and purpose' in context;
5.3 Issues and practice;
5.3.1 Singular object and purpose;
5.3.2 Finding object and purpose from preamble and substantive provisions;
5.3.3 Can the object and purpose be used to counter clear substantive provisions?
5.3.4 Object and purpose identifying general scope of treaty;
5.3.5 Object and purpose in a particular provision;
5.3.6 Principle of effectiveness (general);
6. Conclusions;
6. The General Rule: (2) Agreements as Context, Subsequent Agreements, and Subsequent Practice;
1. Introduction;
1.1 The linking notion of agreement;
1.2 Substantial identity of effect of subsequent agreements on interpretation as of those at time of conclusion;
1.3 Interpretative agreement in subsequent practice;
2. Agreements and Instruments Made in Connection with Conclusion of a Treaty;
2.1 'Conclusion' of a treaty;
2.2 Interpretative role of agreements connected with conclusion of a treaty;
2.3 Interpretative role of instruments made by one or more parties;
2.3.1 Instruments covered by article 31(2)(b) of the Vienna Convention;
2.3.2 Role of unilateral instruments covered by article 31 (2)(b);
3. Subsequent Agreements;
3.1 Fact of agreement, not form, is the key factor;
3.1.1 History and analysis;
3.1.2 IC] looks for fact of agreement, not form;
3.2 Less formal or informal agreement;
3.3 Effect of amending agreements;
4. Subsequent Practice;
4.1 Elements of subsequent practice;
4.1.1 History and development of the provision;
4.1.2 Meaning of 'subsequent practice';
4.1.3 Practice to be concordant, common, and consistent;
4.1.4 Practice may Consist of executive, legislative, and judicial acts;
4.1.5 'Subsequent practice' and 'subsequent conduct' distinguished;
4.1.6 Practice 'in the application of the treaty';
4.2 Deduction from absence of subsequent practice;
4.3 Parties participating in the practice;
4.3.1 Practice must be attributable to parties;
4.3.2 Agreement, not practice, of all parties is required;
4.3.3 Practice of some parties only does not interpret a treaty;
'inter se' unless so agreed;
4.3.4 Practice of some parties in absence of that of others;
4.4 'Establishing' agreement;
4.5 Subsequent practice linked with informal agreement, understandings, or other instruments;
4.6 Subsequent practice and 'evolutive' interpretation distinguished;
4.7 Subsequent practice and amendment differentiated;
4.8 Subsequent practice in international organizations;
4.8.1 Whose practice in the organization?;
4.8.2 Practice in relation to treaty establishing an organization;
4.8.3 Practice in relation to treaty provisions other than constitutional ones;
7. The General Rule: (3) Relevant Rules of International Law and Special Meanings;
1. Introduction;
1.1 The intertemporal rule in general international law;
1.2 Time factors in treaty interpretation;
2. History and Preparatory Work of Article 31(3)(c);
3. Ordinary Meaning of Article 31 (3) (c) in Context, etc;
3.1 There shall be taken into account, together with the context ;
3.2 Relevant rules of international law;
3.2.1 Relevance;
3.2.2 Rules of international law;
3.3 Which are 'the parties'?;
4. Issues and Practice;
4.1 Terms;
4.1.1 Extent of relevant 'international law';
4.1.2 'Rules'
4.1.3 Applicable in the relations between which 'parties?;
4.2 Intertemporal and temporal issues;
4.3 Clarifying meaning by reference to international law;
4.4 Reference to other treaties;
4.4.1 Reference to international law stated in common form treaties;
4.4.2 Reference to the same word as used in other treaties;
4.4.3 Reference to terms or phrases used in treaties on the same subject;
4.5 Filling gaps by reference to general international law;
4.6 Parallel and conflicting obligations;
4.7 Taking account of international law developments;
5. Special Meanings;
5.1 Introduction;
5.2 History and preparatory work;
5.3 Issues and practice;
5.3.1 Special meaning and ordinary meaning distinguished;
5.3.2 Burden of establishing a special meaning;
5.3.3 Evidence required establishing a special meaning;
5.3.4 Special meanings and special regimes;
B. Supplementary Means of Interpretation;
8. Supplementary Means of Interpretation;
1. Introduction
2. History and Preparatory Work;
2.1 Separating supplementary means from the general rule ;
2.2 Ready reference to preparatory work distinguished from basing interpretations on it alone;
2.3 Distinction between use of supplementary means 'to confirm' and 'to determine' the meaning ;
3. Meaning of 'Recourse' and 'Supplementary' ;
3.1 'Recourse';
3.2 'Supplementary';
3.3 Further supplementary means;
4. Issues and Practice;
4.1 Systematic use of gateways, unsystematic use, and by-passing them ;
4.1.1 Explicit reference to the qualifying gateway ;
4.1.2 Reaching the preparatory work informally;
4.1.3 Incidental use of supplementary means ;
4.1.4 Admitting preparatory work introduced by parties;
4.2 Confirming meaning ;
4.2.1 Role of 'confirming 'when not 'determining' ;
4.2.2 Confirming a clear meaning ;
4.2.3 Using supplementary means to confirm 'intention' ;
4.2.4 Using supplementary means to 'reinforce' an interpretation;
4.2.5 Using preparatory work as general support;
4.2.6 Reciting and using preparatory work contrasted;
4.3 Determining meaning;
4.3.1 Qualifying conditions: 'ambiguous or obscure' or 'manifestly 4bsurd or unreasonable';
4.3.2 Ambiguous by reference to availability of another word having one of the claimed meanings;
4.4 Modalities of use of supplementary means;
4.4.1 Using and construing preparatory work;
4.4.2 Reading preparatory work to show agreement to exclude;
4.4.3 Deduction from absence from preparatory work;
4.4.4 Change of word or words during negotiation of treaty;
. 4.4.5 Exclusion of preparatory work from consideration;
4.4.6 May preparatory work be deployed as context?
4.4.7 Using preparatory work to identify or confirm object and purpose;
4.4.8 Effect of interpretation recorded in preparatory work;
4.4.9 Reading preparatory work in combination with other supplementary means;
4.5 Circumstances of conclusion and other supplementary means;
4.5.1 Meaning of 'circumstances of conclusion';
4.5.2 Comparison with provisions in other treaties or associated material as a circumstance of conclusion;
4.5.3 Commentaries, explanatory reports, academic writing, etc;
4.5.4 Other supplementary means;
C. Languages;
9. Languages;
1. Introduction;
2. History and Preparatory Work;
3. Ordinary Meaning of Terms in Article 33;
4. Issues and Practice;
4.1 Interpretation by reference first to only one of several languages;
4.2 Use of 'versions', 'official' and other texts;
4.3 Presumption of the same meaning in all authentic texts;
4.4 How many languages must be considered if there is a need to reconcile texts?
4.5 Is the 'original' language of a treaty particularly significant for interpretation?
4.6 Translation of terms and legal concepts in different languages;
4.7 Reconciliation where one or more texts are clear but another is ambiguous;
4.8 Different punctuation in different languages;
4.9 Reconciliation of language differences by reference to object and purpose;
4.1 0 Using preparatory work in reconciling differences between languages;
Bibliography;
Supplementary Bibliography;
Index