As we come to the end of our discussion of Richard Gardiner's book and the subject of Treaty Interpretation more generally, I wanted to thank our guest bloggers and, of course, Richard, for what has proven a sophisticated (and hopefully useful) discussion. I have thoroughly enjoyed the examination Isabelle, Malgosia, Jan and Richard brought to bear on issues about the...
Treaties constitute one of the largest effective components of modern international law. Lawyers routinely have to give meaning to their terms. Mostly this is straightforward, but often enough there are interesting difficulties in deciding what the terms mean and how they apply in novel or unexpected situations. I have found all the posts and comments extremely interesting, and I am grateful...
In what proved to be the worst kept secret in the world, the Pre-Trial Chamber (PTC) has decided to issue a warrant for Bashir's arrest on the war crimes and crimes against humanity charges, but not on the genocide charges. More substantive analysis will have to await an explanation of the PTC's reasoning. For now, a couple of quick thoughts. To...
It seems that our discussion these past few days confirms that 40 years after the Vienna Conference the meta-questions relating to treaty interpretation remain unaltered. But perhaps it also appears that the ILC ultimately made the right decision to codify the relatively few basic principles on which agreement could be found. The Commission always made it clear that...
I much enjoyed reading the views of Duncan Hollis on the art element in treaty interpretation and on auto-interpretation. I agree that who it is who is making an interpretation may play a key part in the outcome. That two tribunals arrived at different interpretations of similar “umbrella” provisions in bilateral investment treaties shows this all too vividly (SGS v...
I am actually not sure whether it makes much sense, as Isabelle fleetingly suggests, to think of articles 31-32 in terms of either rules or principles. Following e.g. Rosenne, I tend to think that they lack any 'norm-creative character' (to use the phrase from the ICJ's 1969 North Sea Continental Shelf cases), and are best seen as methodological devices: as instructions...
As Jan suggested at the end of his post, it seems that the broader question underlying our debate is how principles of treaty interpretation are used to empower international courts and tribunals and what the limits are of that function. On interpretation as a rule-governed activity, it seems that we all approach Articles 31 to 33 VCLT as principles rather than...
First off, I should say how much I admire Richard Gardiner's book; it has already earned a prominent spot on my bookshelf and I expect it will become a regular reference work for me in any future interpretative exercises. At the same time, I have lots of questions and comments about the book and the growing density of the VCLT...
First, my thanks for Malgosia, Isabelle and Jan for all their comments. The work of the ECtHR has an interesting aspect in the present context. One of the first to take up the Vienna rules systematically, the Court (as Malgosia shows) has apparently not found them to constrict its development of a distinctive line of case law appropriate to the Convention...
I would agree with Richard (and Isabelle) that not too much should be expected from any rules on interpretation. Interpretation is, so to speak, not entirely a rule-governed activity, in much the same way as playing the violin or the piano is not entirely rule-governed. Or building do-it-yourself bookshelves by following the manual, for that matter. I might be particularly...
In the introduction to our discussion, Richard also raised the question of: ‘Should preparatory work be investigated only to identify agreement among the negotiators or, particularly in the case of treaty provisions with a codifying aspect, to assess the state of international law leading up to the treaty and how this affected the negotiators?’ With respect to the first aspect of...
The initial post introducing our discussion of Treaty Interpretation raises various issues of interest to the study and practice of treaty interpretation. In this first reply, I focus on the first question relating to the tragedy of ‘insistent emphasis upon an impossible, conformity-imposing textuality’. My responses are informed by my study of treaty interpretation by the WTO Appellate Body. I believe...
