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The States Continue to Exist in Foreign Affairs: Implementing Treaties

by Julian Ku

Among my many hobby-horses is a  fascination with the role of the individual American states in the interpretation and implementation of international law within the U.S.  In past work, for instance, I have argued that states can individually implement treaties via guidance from Uniform Laws. I had a few examples of this phenomenon in my article, and I think it will be an increasingly common way for the U.S. to carry out its treaty obligations for those matters that are handled by state governments under American law.

So I was glad to run across this article about controversy over a bill in Idaho to conform to the 2008 Amendments to the Uniform Intercountry Child Support Act. The controversy stems from the fact that the 2008 Amendments require states to recognize and enforce child support orders from countries that are members of the Hague Convention on Child Support and that lawmakers in Idaho are concerned that states applying Sharia law might have their orders enforced by Idaho courts.  Putting this controversy aside for a moment, it is worth noting that states ultimately have a choice whether or not carry out U.S. obligations under the treaty, even though the U.S. has obligations under international law.  The federal government has decided to encourage states to carry out the treaty obligations via the spending clause by tying federal funds to adopting the 2008 amendments.  But states like Idaho can choose to not take the funds, and essentially refuse to comply with the treaty.

So it is worth noting, and perhaps celebrating, this continuing trend of relying on states to carry out US treaty obligations.  I think this trend is likely to continue.

Book Symposium: Interpretation — An Exact Art

by Philip Allott

[Philip Allott is Emeritus Professor of International Public Law at the University of Cambridge.]

Interpretation of any text – religious, political, historical, scientific, literary, artistic, legal – raises profound philosophical problems. Interpretation of a legal text is in a class of its own, because it can have direct and substantial social effects, determining people’s lives. The philosophy of legal interpretation is the philosophy of a fundamental aspect of social existence.

The philosophical problems of interpretation stem from the fact that interpretation is a re-presentation of a presentation of reality contained in the text, a reality which is already an interpretation by the mind of some aspect of human experience, and the interpretative re-re-presentation then itself becomes part of that reality. The circular problem of the presentation of reality in language and symbols that modify reality has traditionally been seen as a problem of epistemology – How do we know anything? What is that we know when we think that we know something?

When a text is in a moral context (what does this text say that I or we should do?), it may have a personal effect beyond the social effect. Interpretation may generate a sense of obligation.   When a text is in a legal context, it may have more dramatic effects, personal and social. It may give rise to legal relations – rights, duties, powers, freedoms, etc.   And legal relations switch on specific and powerful social mechanisms in the making and the application and the enforcement of law.

It is a familiar fact that translation into another language can never produce a perfect re-presentation of a text in that other language. But such an ideal may dominate the mind of the translator, involving an underlying respect for the intention of the author of the text. In the case of interpretation, the originating premise is that the interpretation will be something different from the text interpreted.

A speculative or imagined intention of the author of the text may be a relevant element in interpretation, but the interpretation may properly take into account an unlimited number of other considerations. The interpretative context is, in principle, unlimited. It is for this reason that an attempt to lay down general legal rules of interpretation, as in the Vienna Convention on the Law of Treaties, is futile, not least because those rules must themselves be interpreted.

Thus all forms of interpretation involve a succession of acts of creation, supplementing the creative act that produced the original text. The original text becomes the nucleus of an ever-growing living-body of interpretations, each interpretation digesting the work of its predecessors. The text comes to be what it has been made to become through interpretation.

In all forms of interpretation, there may be a sense of proper limits to freedom of interpretation, an implied and unspoken deontology of interpretation. A religious text, centuries later, may have only slender connections with its original form. A Greek tragedy is its bare text plus centuries of thought about it. A work of art is overlaid with veneers, layer after layer, of thought about the work. The only controlling obligations in such cases seem to be a duty to preserve a continuing coherence of interpretation, a sense of respect for the author, a sense of changing social and cultural contexts to which interpretation should respond.

In the case of legal interpretation, the controlling deontology is an integral part of the justification of law itself as a social phenomenon. Law is a violation of human freedom inherited from the social past, taking effect in the social present, determining the social future. Law needs a lot of justifying. Lawyers are aware of this, especially judges and leading practising lawyers, and legal academic writers. Arbitrary interpretation would be a violation of the social responsibility of the lawyer, an abuse of social power. Lawyers know that they must justify their legal interpretations in the same ways that law in general and public authority in general are justified – through respect for a whole array of contextual social and moral standards and understandings, and an ultimate duty to find and to serve the common interest.

Interpretation of International Law is in a very different situation. There are no established contextual social and moral norms and understandings of the kind that dominate advanced national societies.   The overriding international ethic is the use of crude power and diplomatic power to serve nationally determined interests, with only a weak sense of a common interest.   The systems of law-making and law-application and law-enforcement are rudimentary and haphazard.   An international legal text is a happy-hunting-ground for the extreme ingenuity and duplicity that enlightened self-interest, and the subtle minds of lawyers, can generate – and an inexhaustible source of wealth for some.   Practical examples of this abound in the torrent of legal texts created and interpreted and applied in the vast expansion of the scope of International Law since 1945.

The future of international legal interpretation will be better if the future of International Society is better – and if International Lawyers acquire a more sophisticated understanding of the nature and the problems and the responsibilities of all forms of interpretation, and especially of legal interpretation. Interpretation in International Law is an art and a game and a field of battle. It is an ultimate art of the possible, and the possible includes a better kind of law for a better kind of international society.

Book Symposium: Textualism in Treaty Interpretation–A Genealogy

by Fuad Zarbiyev

[Fuad Zarbiyev is an Associate in the International Arbitration Group of Curtis, Mallet-Prevost, Colt & Mosle LLP.]

The interpretation discourse in modern international law is dominated by a textualist paradigm. This claim may seem empirically wrong if it is taken to mean that nothing other than eo nomine textual arguments features in the international legal discourse. After all, the interpretive regime set forth in the Vienna Convention on the Law of Treaties seems to put the terms, the context, and the object and purpose of the treaty on an equal footing. But this does not disprove the dominant status of the textualist paradigm. As a matter of the Vienna Convention regime, context is for instance nothing other than a slightly enlarged text. Likewise, object and purpose is not something independent of the text, but a parameter that can hardly claim relevance in the interpretive discourse without a textual anchoring.

Why has textualism come to assume such prominence in a legal system in which consensualism has traditionally been and is still said to be at the heart of legal commitments? Is it not paradoxical that intentionalism, which seems more deferential to state consent, is systematically discredited as an interpretive philosophy in international law?

No persuasive answer can be found to such questions in the international case law or the scholarly works uncritically reproducing it both of which seem to suggest that the interpretive regime set forth in the Vienna Convention is of a temporally boundless validity. Despite the fact that the treaty interpretation rules embodied in the Vienna Convention have been applied to treaties dating to the nineteenth century, the notion that the interpretive regime embodied in the Vienna Convention can claim a sort of trans-historical validity does not stand up to an historically informed scrutiny. Consider the following two interpretive statements separated from each other by a time interval of 87 years. The first statement issued by an arbitral tribunal in 1897 reads as follows:

[W]e are to interpret and give effect to the treaty of April 15, 1858, in the way in which it was mutually understood at the time by its makers … It is the meaning of the men who framed the treaty which we are to seek, rather than some possible meaning which can be forced upon isolated words or sentences.

The second statement, issued by the Iran-US Special Claims Tribunal in 1984, holds that:

[T]he Vienna Convention does not require any demonstration of a ‘converging will’ or of a conscious acceptance by each Party of all implications of the terms to which it has agreed. It is the ‘terms of the treaty in their context and in the light of its object and purpose’ with which the Tribunal is to be concerned not the subjective understanding or intent of either of the Parties.

Two interpretive philosophies farther apart from each other are hardly conceivable. A series of historically contingent factors can plausibly explain the gap between the epistémés underpinning these philosophies. The first among such factors is the phenomenon of permanent international tribunals. The rise of permanent tribunals seems to have gone hand by hand with the increasing marginalization of the intention of the parties in treaty interpretation. Traditionally considered as common body of the parties, arbitral tribunals tended to be careful in tracing back their decisions to the intention of the parties. In contrast, due to their independence from the parties before them, permanent tribunals did not feel the same discursive constraints and were able to place priority on text. The primary sign of this tendency is of course the decrease of the importance attached to travaux préparatoires in treaty interpretation.

Another factor worth considering is the ideological division of the international society in the 1950s-1960s when the Vienna Convention on the Law of Treaties was being drafted and finally adopted. Despite their strong political preference for the voluntarist conception of international law, the countries from the communist bloc vehemently rejected any attempt to undermine the priority status of textualism during the Vienna Conference on the law of treaties. Their position must be viewed against the ideological stakes at issue: the notion that communist countries could share a common intention with “bourgeois” states was hardly acceptable on ideological grounds as explained by the leading Soviet international lawyer, Grigory Tunkin.

Decolonization and the rise of newly independent countries on the international plane seem to be another relevant factor. While newly independent countries had a clear preference for law-making by treaties as opposed to customs over which they had no control, intentionalism could not have been an attractive interpretive approach for them. For one thing, intentionalism carried with it a serious potential for manipulation of the scope of their treaty commitments. For another, intentionalism presented the risk that the common intention of the original parties to a significant number of multilateral treaties to which newly independent countries became parties could be controlling. Neither of these prospects was acceptable to newly independent countries in view of their acute sovereignty-sensitivity.

Such contingent institutional and political factors should be seen together with the clear preference textualism has traditionally enjoyed in the intellectual history of international law, which explains that the historical contingency of textualism is seldom questioned by international law scholars. Due to the decentralized nature of the international society, every State enjoys the power to interpret its own rights and obligations. If unconstrained, this power of auto-interpretation can carry with it an enormous dispute-generating potential the danger of which is self-evident in international law where no state can be compelled to submit its dispute with another to a binding dispute settlement mechanism. The pro-textualist preference of international lawyers reflects their constant search for solid foundations that cannot be manipulated by states pursuing their own interests.

A genealogical inquiry along the lines above shows that treaty interpretation is not governed by immutable rules; it is a “language game” played by historically situated actors the historical situation of which directly impacts what the game is and how it should be played.

Guest Post: How Many International Law Books are Published in a Year?

by John Louth

[John Louth is Editor-in-Chief of Academic Law at Oxford University Press.]

I make it 401, but more of that below.

A few years ago when we carried out some research into law scholars’ habits we found many were telling us that there was so much being published that they didn’t even try to keep up anymore. I decided to try and see how difficult it would be to get a snapshot of just the books that published in one 12 month period – April 2014 to March 2015. The dates reflect two important cycles in my life: it matches OUP’s financial year and it marks the time between annual meetings of the American Society of International Law, the largest annual gathering of international lawyers (in the English speaking world at least).

The starting point for collecting titles was Jacob Katz Cogan’s invaluable International Law Reporter blog but due to the slightly different criteria for inclusion that I was applying I also went through publishers’ websites systematically. The result was 401 books published in English, French, and German.  No judgements about the quality of the scholarship were made – if it published in print, it was included. The full list in spreadsheet form and an explanation of the criteria for inclusion are available here. There is naturally a lot of room for debate about what I deemed to be “international” and what I deemed to be “law”. For each title I recorded the author/editor, language of publication, the publisher, and the subject area.

Statistical Overview

The top four publishers by number of titles were

  1. 1. CUP (72)

  2. 2. OUP (69)

  3. 3. Brill-Nijhoff (56)

  4. 4. Routledge (44).

Further behind we then have

  1. 5. Nomos (25)

  2. 6. Springer (24, or 27 if you include the 3 Asser Press titles they distribute)

  3. 7. Edward Elgar (20)

  4. 8. Pedone (19)

  5. 9. Hart (18)

  6. 10. Bruylant (11) and then a number of presses with between one and four titles in the list.

The linguistic split is 340 English, 36 French, 19 German, 5 French and English, and 1 German and English. The ratio of authored to edited books was 246 to 155.

Every title was assigned either one or two broad subject areas that it covered. The total figure for numbers of titles by subject therefore is greater than 401. Economic law broadly speaking (encompassing those titles on international economic law generally, plus those specifically on trade or investment law) accounts for the largest number (67), then human rights (53) and then war/peace/use of force issues (51).

The two institutions that had the most attention were the UN Security Council and the International Criminal Court which were the subject of 7 books each. Breaking the coverage down geographically there were more books about China (8) than anywhere else, followed by the Polar regions (6).

“Hot” Topics?

There were

  • 13 titles addressing issues of transitional or post-conflict justice
  • 7 each on terrorism and cyber issues
  • 6 each on corruption and economic/social/cultural rights, and
  • 5 on climate change.

Book publishing obviously lags behind current events which might explain why there are still quite a few books on piracy (4) in the list but not yet anything specifically on Syria or ISIS. In terms of genres the big one is clearly the “Handbook” with 13 in the list spread between Routledge, Elgar, and OUP, but the second is the evergreen Festschrift with 12 having published in this period. Special mention should be made of a liber amicorum for Serge Sur published by Pedone which is not on the list as it appears to have only been available as a subscription item and doesn’t seem to be available any more. That is a great shame as it concludes with a chapter about the glories of hard-boiled eggs with mayonnaise, for many years an inexplicable lacuna in international legal scholarship.

Why Do Such a Survey?

I did this to step back from my role as an OUP editor and see what is going on outside of my list but also to assess what kind of a burden is being placed on those who are trying to stay abreast of scholarship in their field. For scholars and librarians I hope that it is simply useful to see a reasonably comprehensive list and make sure you haven’t missed anything. Beyond that though it is probably helfpul to reflect on the quantity of output, the languages, and the subject areas/topics that are being published on. What areas are over-saturated and which are in need of greater coverage? Is it a concern that such a high proportion of the single-authored books are based on doctorates or is that a healthy sign of new thinkers entering the field?

If there is interest we could try to make this an annual survey, hopefully including publications from more than the three languages covered (helpers would be needed though as my language skills are limited to English, French, and German).

To get a fuller picture we need to look at journals and the many hybrid forms of scholarly output (such as working papers or reports produced for international organizations) but that will take some more time due to the vastly greater quantity of material to be sifted through.  For now I hope that this inaugural survey is food for thought.

Book Symposium: Accounting for Difference in Treaty Interpretation over Time

by Julian Arato

[Julian Arato is an Associate-in-Law at Columbia Law School.]

Interpretation in International Law is something of an iconoclastic volume, from its critical ethos to its provocative structure around the metaphor of the game. The object of its revisionism, above all, is an apparently stagnant formalism that seems too prevalent in the theory and practice of interpretation in international law today. Symbolic of this antiquated formalism – for the editors and for many of the contributors – are the rules of interpretation embedded in the Vienna Convention on the Law of Treaties (VCLT). There is something funny about defending the rules in such a collection – like arguing for reform in a volume on revolution.

My chapter, ‘Accounting for Difference in Treaty Interpretation over Time’, embraces the Vienna rules in principle. I reject neither rules nor formality, and I happily hew toward the VCLT’s project of bringing order to the practice of interpretation. In my view, there is real value in the regulatory ideal that a “correct” interpretation of any treaty exists. The Vienna rules reflect a crucial language for approaching that ideal. The rules don’t simply provide access to the correct interpretation – they help constitute it. And, crucially, they do so according to a scheme accepted by states, the plenary subjects of international law.

Still, in an important sense I agree with the volume’s critical spirit. In my view the real problem lies not with the Vienna rules themselves, but with a reverence for them that sometimes borders on the fetishistic. It’s not the rules, in other words, but the way they tend to be received. The misstep lies in the notion that the Vienna rules comprise a fully self-contained approach to treaty interpretation – universally applicable to all treaties, and always in the same way. This article of faith is neither borne out in practice nor in theory, and nowhere is this more evident than in the interpretation of treaties over time.

All students of public international law are at some point taught that as a matter of doctrine all treaties are subject to the same unified rules of interpretation. Yet at the same time, everyone knows that some treaties are special. Time and again we hear that some kinds of treaties are different. Courts, tribunals, and scholars often intone that certain treaties are entitled to special treatment when it comes to interpretation, especially as regards changes of circumstances and intentions attending the passage of time.

Often the argument is that human rights treaties are somehow special – capable of progressive evolution over time, with or without the continued consent of the parties. By the same token, it is sometimes suggested that subsequent party practice, usually an authentic criterion for the interpretation, reinterpretation, or even the modification of treaties, is somehow of less value in the context of interpreting treaties that confer rights on natural persons. The argument is that in such cases the mastery of the parties over time is somehow reduced. We hear similar statements about environmental treaties, territorial treaties, and of course the constituent instruments of international organizations. The problem is that the explanations offered for differentiating among types of treaties are rarely satisfactory.

The argument that a particular treaty provision is entitled to special treatment tends to be explained in one of two ways, both of which prove ultimately unsatisfying. One approach simply invokes the general subject matter of certain treaties in singling them out for special treatment. In light of their special subject matter, the argument goes, treaties on subjects like human rights or the environment should be understood as insulated from the changing will of the parties, and sometimes capable of autonomous evolution. But such statements cannot withstand serious criticism. In the words of the ILC’s Fragmentation Report (at [21]): “characterizations (‘trade law’, ‘environmental law’) have no normative value per se … The characteristics have less to do with the ‘nature’ of the treaty than the interests from which it is described.”

A second school of thought tries to work within the Vienna rules – focusing especially on one criterion of interpretation, object and purpose, in accounting for ascribing differential weight to the other codified rules. On this view, the touchstone must always be the intention of the states parties, as reflected in the goals that the treaty seeks to achieve. Adherents of the object and purpose approach have the advantage of formality. Its proponents can argue that the answers lie within the rules after all, in the invocation of object and purpose at VCLT Article 31(1). And yet something important still seems to be missing. Even where a treaty’s goals are sufficiently determinate, the interpreter must still ask how far the parties were willing to go to achieve their goals. Though a treaty may enshrine certain values, it remains critical to ask to what extent the states parties intended to entrench those values – to what extent, in other words, they agreed to tie themselves to the mast.

My suggestion is that international lawyers’ tendency to focus doggedly on the canons of interpretation codified in the VCLT draws attention away from a crucial consideration in the interpretive puzzle: the nature of the treaty obligations under interpretation. What gets left out is any inquiry into how far the states parties intended to commit themselves in acceding to a treaty obligation.

Put more schematically, the critical issue elided by the Vienna rules is whether a treaty provision entails a merely reciprocal exchange of rights and duties, or rather incorporates a more absolute commitment by the parties to take on an obligation insulated from their changing intentions, and over which their subsequent mastery might prove relatively limited. Some treaty norms represent mere exchanges of rights and duties, wholly dependent on mutual performance. If one party breaches its obligations, the other is well within its rights to do the same. Other norms represent a shared commitment to abstain from, or engage in, a certain behavior – whatever the other parties do. It is well understood that differences in the level of party commitment are relevant to determining the consequences of treaty breach, or to resolving conflicts with subsequent treaties. And indeed, as Pauwelyn has noted, the VCLT itself recognizes the importance of drawing distinctions between different types of treaty norms for these non-interpretive purposes. I argue that this distinction is just as central to the resolution of problems of interpretation over time.

Starting from the perspective that the Vienna rules are essential, I suggest that the problem of differential interpretation over time reveals a deficiency in how we think about VCLT Articles 31–32. Specifically we ought to avoid treating it as a total interpretive mechanism. The problem lies not in our interpretive rules as such, but in the assumption that any set of rules can do all the work. Without arguing for anything like revising or abandoning the VCLT, I suggest that the process of interpretation may sometimes require taking into account considerations left unmentioned by Articles 31–32. Distinguishing between types of obligations based on the level of the parties’ commitment is a case in point. Doing so helps account for quite a bit of interpretive practice that would otherwise appear anomalous under the Vienna rules; hopefully it can provide a more principled justification for differential interpretation going forward.

NYU Petitioners Do Harold Koh — and Themselves — a Grave Disservice

by Kevin Jon Heller

Newsweek published a long article today about a petition organized by NYU students, alumni, and non-law faculty claiming that it would be “unacceptable” for Harold Koh to teach international human-rights law at the law school. Here is a snippet:

While working for the Obama administration, Koh was the most public legal defender of the president’s drone strike program. Last month, a petition was circulated at NYU Law—one of the top law schools in the country—that called Koh’s teaching of international human rights law for the 2014-1015 academic year “unacceptable.”

“Given Mr. Koh’s role in crafting and defending what objectively amounts to an illegal and inhumane program of extrajudicial assassinations and potential war crimes, we find his presence at NYU Law and, in particular, as a professor of International Human Rights Law, to be unacceptable,” the petition reads.

The petition has drawn around 200 signatures, but it has stirred a much bigger controversy on campus than the numbers might suggest.

I do not think scholars should get a free pass for their ideas simply because they were government officials when they embraced them. I continue to believe that it’s a terrible idea for serious scholars to go into government — this kerfuffle being Exhibit A. And I have very serious disagreements with Koh about the legality of the Obama administration’s drone program; indeed, I’ve discussed them with him.

That said, I find the petition appalling. Koh is one of the great international human-rights scholars of his generation — and he has personally taught or mentored most of the great international human-rights scholars of the current one. He is brilliant, compassionate, kind, and profoundly ethical. No one who knows him even a little (and although I know him, I can’t say I know him well) could possibly believe that he did not bring all of those qualities to his role as the State Department’s legal advisor. Does that mean he was always right? Of course not. As I said, I don’t share his view of the drone program. On the contrary, I think the program is abhorrent and quite often illegal. (And have said as much in my scholarship.)  But I would bet my last dollar that Koh never went against his beliefs while working at State — and that he did everything he could, within the confines of his position, to make the drone program comply with international law as he understood it.

Those of us on the left — and readers know just how far left I am — need to stop viewing US administrations as monoliths. Not all government officials are bad. Even terrible administrations have good people in them who work behind the scenes to minimise their terribleness. John Bellinger III falls into that category in the Bush administration; commenters on the blog have done him a disservice by lumping him together with people like John Yoo. And the NYU students, alumni, and faculty who have signed this petition have done Harold Koh an even worse disservice by accusing him — publicly — of being unfit to teach international human-rights law. On the contrary, NYU would be lucky to have him.

Book Symposium: The Rise of Interpretive Communities in Treaty Interpretation

by Michael Waibel

[Michael Waibel is a University Lecturer in Law at the University of Cambridge and Deputy Director of the Lauterpacht Centre for International Law.]

The rise of distinct interpretive communities goes hand in hand with the much debated topic of fragmentation in international law. Even though the VCLT’s role in treaty interpretation has been studied extensively, how interpretive communities affect treaty interpretation has received less attention. Who the treaty interpreters are and how they approach the task of interpretation likely matters for interpretive outcomes.

Compared to national law, interpreters of international law are much more diverse. They come from different cultural and educational backgrounds and have varied professional experiences. They include judges on international and national courts, government legal advisers, lawyers in private practice, scholars and activists. They are often part of several, overlapping interpretive communities who speak the same language and share the same background assumptions – and this membership may shape how they approach the task of treaty interpretation.

Consider national judges. They may be particularly prone to interpreting treaties through the lens of their own legal system and in light of their particular specialization such as tax or criminal law. As a rule, national judges form part of diverse national interpretative communities, shaped largely by their own legal culture (including approaches to interpretation), rather than part of a global and interconnected community of international lawyers who speak (roughly) the same language. Going forward, diversity in treaty interpretation by national judges could be a major source of interpretive fragmentation, depending on what role interpretive communities along national lines play.

But all lawyers are, to a considerable degree, a product of their own culture, training and professional experience. As Frederick Dunn remarked in the 1930s, the international lawyer ‘carries with him the whole collection of habitual ways of acting, of fixed ideas and value judgments of his own community, which he is prone to expand into ideas of universal validity’: The Diplomatic Protection of Americans in Mexico (1933) at 105–107. James Crawford similarly observed that international lawyers are ‘commonly municipal lawyers first, and bring to the international sphere a collection of presumptions and perceptions as part of our training’: Chance, Order, Change: The Course of International Law (2013) at para 185.

How does one become a member of these interpretive communities? It varies from area to area, and from one state to the next. As a rule, the harder it is to join an interpretive community, the more influential the interpretation of that group is. For example, while it typically takes several decades of experience to join the interpretive community of international judges (particularly the ICJ), it is easier to join the interpretive community of human rights activists.

Unlike interpretation in literature, how much weight an interpretive community and its members carry is not just a matter of prestige, but has consequences. While more accessible interpretive communities mostly lack any binding authority, the interpretive community of, for example, ICJ judges or WTO Appellate Body members has the power to issue binding decisions. Others, such as government legal advisers have no power to issue such decisions, but are extremely influential in treaty interpretation because the bulk of interpretation in international law remains auto-interpretation – by the states concerned of their own interpretation.

Besides the diversity of the actors, the growing trend towards specialization in international law (mirroring a development in national law a century ago), accompanied by the “tunnel vision” symptom, fostered the emergence of distinct interpretive communities. Such tunnel vision, focusing on the unique goals of each specialization, can lead to the chopping of international law into discrete “blocks”. Consequently, generalist international lawyer idealized in Schachter’s famous “Invisible College of International Lawyers” are an endangered species.

Today, there are interpretive communities of human rights lawyers, investment lawyers and environmental lawyers for example. One manifestation of this centrifugal trend are more specialized professional societies, such as the Society of International Economic Law, which complement more generalist societies, such as the American Society of International Law. Such bodies have played a crucial role in fostering a sense of a broad, unified interpretive community of international lawyers in the 20th century.

An important implication of this tunnel vision is that specialist interpretive communities tend to regard their own area of expertise as supreme and pay little, or no, attention to other unrelated areas of international law: Bianchi, “Gazing at the Crystal Ball (again): State Immunity and Jus Cogens Beyond Germany v Italy” (2013), 4(3) JIDS 457. Interpretive communities pursue various strategies in order to enhance their prestige and influence: 1) some of the influential ones screen new members before admission, as mentioned above; 2) they cooperate with other actors to spread their views and increase support for their interpretation (e.g. with governments and practicing lawyers); and 3) they advance competing normative visions of international law while at the same time employing the VCLT’s widely accepted, open-ended principles of interpretation.

The rise of a larger number of distinct interpretive communities resulted in international law being “sliced up in institutional projects that cater for special audiences with special interests and special ethos”: Koskenniemi, “The Politics of International Law – 20 Years On” (2009) 20 EJIL 1, at 9. As Bianchi observed, interpretive communities can be seen both as a deadly threat to the international legal order, but also as a sign of the sophistication and expansion of the realm of international law: “Looking Ahead: International Law’s Main Challenges” in D Armstrong (ed), Routledge Handbook of International Law (Routledge 2009) at 404.

Schachter’s “invisible college” of international lawyers seems to have largely disappeared and has been replaced by a patchwork quilt of specialized international lawyers. Diverse interpretive communities have come to play an increasingly important role in treaty interpretation. This development raises concerns about the unity of international law, not just in relation to its interpretive methods, but also in relation the system as a whole. The challenge going forward is how to achieve a reasonable balance between specialization and fragmentation.

Book Symposium: Is there Existential Interpretation in International Law?

by Duncan Hollis

I want to start off our conversation about the larger project Bianchi, Peat and Windsor have undertaken with their new book before introducing my own contribution to it.  For years, the concept of interpretation has had a fairly narrow focus within the international legal landscape.  It has almost uniformly been associated with a discrete set of objects — treaties. From Grotius to Oppenheim, let alone McNair to Gardiner, when international lawyers have thought about interpretation, there has been a strong push to do so almost entirely with respect to treaty instruments.  Moreover, for several decades now the vehicle for interpretation has been widely accepted in the rules of the 1969 Vienna Convention on the Law of Treaties.  Although there was a time when the issue of how to interpret treaties garnered a really diverse range of views, modern discourse has largely devolved into claiming that the VCLT approach gives priority to (or at least endorses inclusion of) different methods of interpretation (e.g., intentional, textual, teleological). Now, to be clear, these are tremendously important issues given the role of treaties in international law today; scholarship on these topics has been, and remains, an important part of international legal discourse.  Nevertheless, what I like about the Bianchi, Peat and Windsor book (putting aside my own contribution) is the editors’ willingness to deal with the traditional games of treaty interpretation while also expanding the discourse to frame interpretation as a much larger project within the international legal order.  It is an important move, and one I hope to see continued in future scholarship as international lawyers begin to recognize all the ways interpretation operates within every nook and cranny of the field.

As for my own chapter (which is still up on SSRN, although you should really buy the book), its inspiration lay in one other aspect of the conventional approach to interpretation — defining interpretation simply as a process of giving meaning to treaty texts.  I’ve always thought that this approach under-claimed the functions interpretation can serve.  Certainly, interpretation has an expository function where its processes help interpreters ascertain what meaning to assign some treaty provision or other aspect of international law.  But, interpretation can have other functions as well.  For example, although still controversial in some circles, there is the idea that interpretation has an inventive or creative function where instead of simply “finding” meaning, interpreters craft one for the circumstances presented.  Alternatively, interpretation may serve a relational role in delimiting not what specific things mean, but how they relate to one another (i.e. whether one treaty provision supersedes another, whether some international humanitarian law rule takes priority over a human right guarantee, etc.).

My contribution to this functional analysis is to highlight the existential potential of interpretation.  My chapter explores how, in ascertaining meaning, interpretation operates to confirm—or even establish—the existence of the subject interpreted within (or outside) the corpus of international law.  I argue that all interpretations have existential effects as they create, confirm, or deny the existence of the subject of interpretation. At the same time, I identify a particular structure of interpretative argument – what I call “existential interpretation” – by which interpreters ascertain the existence of their subjects.  Interpreters can foreground or background existential interpretations depending on whether the existence of the subject-matter is accepted or disputed. Moreover, I find existential interpretations are not limited to the treaty-context.  Rather, they are visible at all levels of international legal discourse, including which particular (i) authorities, (ii) evidence, (iii) rules, or (iv) sources exist for purposes of international law.

Some of these existential interpretations are quite prominent and should actually be familiar to most international lawyers even if not previously couched in such terms.  Does the U.N. Human Rights Committee have authority to sever reservations as inconsistent with the object and purpose of the ICCPR?  For purposes of identifying customary international law, is evidence of “State practice” only comprised of what States “do” or can it also count what States “say”?   Is there an “unwilling or unable” test in the jus ad bellum in response to non-State actor attacks?  Is R2P now a part of international law?  Is the new Iran Deal a treaty or not? Are decisions of international organizations a separate source of international law?   These are all examples of existential interpretative inquiries.

My chapter seeks to illuminate the existential function of interpretation and illustrate such interpretations in all the various aspects of the international legal system.  But my paper is not simply an exercise in interpretative taxonomy — identifying different frames for interpretative questions.  Rather, I seek to illuminate the consequences that the presence or absence of an existential interpretation may have in terms of international legal (a) discourse, (b) doctrine, and (c) theories of international law.  For starters, existential interpretations delineate the boundaries for interpretative discourse, narrowing it in cases of consensus on the existence of the interpreted subject, and broadening it in cases of dispute. Where interpretative resolutions of existential questions are possible, they may impact the content of international law doctrine, either directly or indirectly. And, where resolution is not possible, existential interpretations may operate as proxies for theoretical disagreement about the nature or purpose of international law (e.g., positivists may insist interpreters exclude from their toolbox the same soft law sources that naturalists insist require effectiveness as a matter of right).

I conclude my paper by calling for further study of existential interpretation for practical and theoretical reasons.  As a practical matter, it would be useful to know more about when and how actors actually foreground existential interpretations.  Obviously, there may be cases where an interpreter does so in good faith, but I suspect existential interpretations might also be deployed instrumentally.  Consider the possibilities when a State (or other actor) objects to an interpreter X claiming that Rule Y means Z.  Of course, the State might simply disagree that Z is the correct meaning of Rule Y. But a State could expand the scope of the interpretative dispute by also questioning whether X has authority to interpret, the evidence on which Rule Y rests as well as the source of international law it is derived from. The objecting State may thus complicate the dispute by expanding its scope.  In doing so, moreover, the objecting State may change the nature of the dispute itself, shifting a discussion away from the initial question (e.g., protecting victims of a humanitarian crisis) to issues of authority or procedure (does international law contain a rule requiring such protection and who has authority to invoke its mantel).

As a theoretical matter, existential interpretations can serve as a new lens for mapping the unity and fragmentation of the international legal order itself. Instead of examining fragmentation along a single axis (eg norms), mapping existential arguments offers a way to gauge the extent of unity versus fragmentation along multiple axes.  Since existential interpretations are manifest throughout international legal discourse, questions of unity or fragmentation can be examined in terms of authority, the sources of international law, the rules of international law and the evidence on which they are based, the actors who may participate, or the remedies international law affords.  In each area, the number and depth of existential debates offer a rough gauge for mapping unity versus fragmentation.  Where existential inquiries are absent or where a consensus exists on the answers, unity may be presumed.  Conversely, where there are existential disputes, they indicate a fragmentation of the legal system.

In sum, as much as I love treaties, I believe that there is significant value in thinking about interpretation as more than a process of giving treaty provisions meaning.  My introduction of the concept of existential interpretation is an effort to show just how broadly interpretative processes reach and structure the international legal order.  In doing so, I hope to illustrate — as the book itself does — the importance of thinking about interpretation as its own field within international law.

[An introductory post to the book symposium can be found here.]

Book Symposium: Interpretation in International Law–What’s In A Game?

by Daniel Peat and Matthew Windsor

[Daniel Peat and Matthew Windsor are PhD candidates at the University of Cambridge Faculty of Law, and members of Gonville and Caius College.]

International lawyers have long realised the importance of interpretation to their academic discipline and professional practice. Interpretation in international law has traditionally been understood as a process of assigning meaning to texts with the objective of establishing rights and obligations. This has led to an almost exclusive focus on the interpretive methodology encapsulated in the Vienna Convention on the Law of Treaties. Outside the auspices of the VCLT rules, interpretation in international law has rarely been regarded as a distinct (and broader) field of inquiry. As new insights on interpretation have abounded in other fields, international law and international lawyers have continually granted an imprimatur to rule-based formalism. Given that interpretation is a pervasive phenomenon in international law that is irreducible to analysis of the VCLT rules, a greater methodological awareness of interpretive theory and practice in international law is imperative.

We convened a conference on interpretation in international law at the Lauterpacht Centre and the Faculty of Law at the University of Cambridge in 2013. The aim was to provoke fresh insights on a foundational topic. The result is a recently published book with Oxford University Press, Interpretation in International Law. The book is co-edited by Andrea Bianchi, Professor of International Law at the Graduate Institute, Geneva. A symposium of papers dealing with discrete interpretive topics from the conference also featured in the Cambridge Journal of International and Comparative Law.

In his preface, James Crawford describes our book as ‘teeter[ing] intriguingly between interpretation in the way international lawyers normally think about it and interpretation as everything they think about’. International lawyers normally think about interpretation with reference to the rules in the VCLT. Indeed, the literature on treaty interpretation is voluminous. This work is invaluable: it provides states and other actors in the international arena with a guide to the conventionally accepted norms of interpretation in the community within which they operate. But this project does not tell the whole story. It does not interrogate the larger purpose of interpretation in the international legal system, whether and why the VCLT rules act as a constraint on interpretation in practice, whether actors’ interpretations differ according to their professional identities, or if strategy motivates interpretive choice. In their mantra-like recital of the VCLT as a formal methodology for the interpretation of international legal rules, international lawyers till a bounded field, largely insulated from interdisciplinary influence or insight. A greater awareness of broader interpretive debates helps shed light on both the underlying premises and shortcomings of the rule-based orthodoxy. In short, interpretation in international law is not an island.

Our introductory chapter to Interpretation in International Law, which is freely available here, surveys the ‘state of play’ of scholarship on interpretation in international law, before analysing alternative approaches to the ascertainment of meaning. Such approaches reveal that any interpretive inquiry rests upon contestable bases regarding meaning, language and the importance of societal context and norms. The view that the interpretive inquiry in international law is reducible to, and exhausted by, the VCLT rules is overly reductionist.

The book is structured around the metaphor of the game, which captures and illuminates the constituent elements of an act of interpretation. The object of the game of interpretation is to persuade the audience that one’s interpretation of the law is correct. There are players who are engaged in the game, namely functionally specialised interpretive communities who deploy international law as a professional vocabulary. The VCLT rules of play are known and complied with by the players, even though much is left to their strategies. There is also a meta-discourse about the game of interpretation – ‘playing the game of game-playing’ – which involves consideration of the nature of the game, its underlying stakes, and who gets to decide by what rules one should play.

The game metaphor is more than a rhetorical flourish. It offers a heuristic framework that highlights topics of crucial importance in order to foster innovative thinking on interpretation in international law. The argument is not that interpretation is a game, but that particular facets of the comparison are illuminating and capable of capturing both routine interpretive operations as well as those advances that transform the law. To say that interpretation in international law is akin to playing a game does not imply that the process is frivolous or that the parties involved in interpretation are not seriously engaged in it. Rather, in its attention to interpretation as a complex social practice, and in its focus on socio-historical contingency and the relationship between freedom and constraint, the game metaphor helps reinsert some vitality in a discipline that has too often become bogged down in formalist interpretive technique.

Interpretation in International Law breaks free from a myopic focus on the VCLT to reveal interpretation as a phenomenon that permeates all areas of international law as a discipline and professional practice. We hope to convince readers that the game metaphor crystallises a set of concerns that are too often neglected in a formalist rule-based paradigm. Topics canvassed in the book are deliberately eclectic, ranging from theories of rhetoric and argumentation to the sociology of precedent, from cognitive frames of interpretation to the politics of hermeneutics.

Over the next few days, several of the book’s contributors will introduce their chapters. Duncan Hollis examines the object of the game of interpretation in terms of its existential function. Michael Waibel analyses the players of the game by discussing the nature of interpretive and epistemic communities in international law. Julian Arato confronts the paradox that, despite the unity and universality of the VCLT rules, there is a practice of affording some treaties differential treatment in the process of interpretation. Fuad Zarbiyev characterises the interpretive method of textualism in strategic terms, revealing the historical contingencies that led to it being regarded as sacrosanct in international law. Philip Allott’s contribution to the symposium is emblematic of the aims of the book: to promote critical and open-minded reflection on interpretive practices and processes in international law.

We are grateful to our contributors for their participation, and to Opinio Juris for hosting this discussion. We hope that the insights contained in Interpretation in International Law, and this symposium, will stimulate further research on interpretation that does not shy away from methodological innovation and creativity.

Guest Post: Law of the Sea Tribunal Adopts ‘Due Diligence’ Standard for Flag State Responsibility for IUU Fishing

by Craig H. Allen

[Craig H. Allen is the Judson Falknor Professor of Law/Professor of Marine and Environmental Affairs at the University of Washington.]

The International Tribunal for the Law of the Sea (Tribunal) continued to develop the law of flag State responsibility in a 68-page advisory opinion issued on April 2, 2015 (Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC), ITLOS Case No. 21, Advisory Opinion of April 2, 2015). Five ITLOS judges wrote separate declarations or opinions.

A “Living” Law of the Sea Convention?

The April 2, 2015 advisory opinion was the first one issued by the full Tribunal. Four years earlier, the Tribunal’s Seabed Disputes Chamber had issued an advisory opinion, as it was expressly authorized to do under Article 191 of the 1982 UN Convention on the Law of the Sea (UNCLOS) (Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area [Request for Advisory Opinion submitted to the Seabed Disputes Chamber], ITLOS Case No. 17, Advisory Opinion of Feb. 1, 2011). In response to the SRFC request concerning IUU fishing, however, several States, including Australia, China, Ireland, Spain and the UK, objected that the Tribunal lacks jurisdiction to issue advisory opinions except in disputes involving the international seabed. Writing separately, Judge Lucky characterized the States’ jurisdictional objections as “cogent, clear and articulate, as well as considerably persuasive,” but he ultimately rejected them (Separate Opinion of Lucky, J.). In doing so, Judge Lucky opined that UNCLOS “is akin to (comparable with) a national constitution” and that, just as the “living constitution” doctrine advocates argue, UNCLOS “must ‘grow’ in accordance with the times.” (Id. ¶ 9). Oddly, in interpreting the Convention, Judge Lucky did not cite the relevant articles of the Vienna Convention on the Law of Treaties until much later in his opinion.

The Opinion

Jurisdictional issues aside, this latest advisory opinion brings needed definition to the law of State Responsibility with respect to UNCLOS. The opinion was issued in response to a 2013 request by the Sub-Regional Fisheries Commission (SRFC) established by seven West African States). The SRFC submitted four questions, principally regarding the obligations and liability of flag States for IUU fishing by their vessels in the exclusive economic zones (EEZs) of another State. In all, 20 judges participated in the decision. They unanimously held that the Tribunal had jurisdiction to issue the advisory opinion, citing Article 138 of the Court’s own rules. At the same time, the Tribunal noted that since the Tribunal was established in 1996 this was the first time an advisory opinion had been issued by the full Tribunal.

In answering the questions presented, the Tribunal distinguished the flag State’s responsibility under UNCLOS from its liability. With respect to the latter question, the Tribunal declared that the liability of the flag State does not arise from a failure of vessels flying its flag to comply with the applicable laws and regulations, because “the violation of such laws and regulations by vessels is not per se attributable to the flag State” (¶ 146). Instead, the liability of the flag State arises from its failure to comply with its own “due diligence” obligations. Thus, the flag State will not be liable if it has taken “all necessary and appropriate measures to meet its ‘due diligence’ obligations” to ensure that vessels flying its flag do not conduct IUU fishing activities in the EEZ of the coastal States (¶ 148).

The due diligence standard adopted by the Tribunal can be traced to the arbitration panel’s decision in the CSS Alabama case, which involved Great Britain’s responsibility for damages done by the CSS Alabama, a Confederate States warship built in Great Britain, in violation of that State’s neutrality in the Civil War (Alabama claims of the United States of America against Great Britain, Award of Sept. 14, 1872, XXIX Reports of International Arbitration Awards 122, 129.) The standard was also adopted in the ITLOS Seabed Disputes Chamber’s 2011 advisory opinion (¶¶ 110-117), in which it cited the ICJ’s 2010 decision in the Pulp Mills on the Uruguay River case (2010 ICJ Rep. 14, 79, ¶ 197).

Importantly, in its opinion the Tribunal cited flag State responsibilities under Articles 58.3 (rights and duties of other states in the EEZ), 62.4 (utilization of living resources of the EEZ), 94 (duties of the flag State) and 192 (general obligation to protect and preserve the marine environment). In a separate opinion, Judge Paik elaborated on the flag States’ obligations under Article 94. Thus, the opinion’s examination of flag State responsibility and the due diligence standard is likely to find application beyond the context of IUU fishing in the EEZ.

John Bellinger’s Op-Ed on ISIS and the ICC (Updated)

by Kevin Jon Heller

The op-ed, which appears in today’s New York Times, argues that the ICC is the most appropriate venue for prosecuting ISIS’s many international crimes. I have great respect for John, who is unique among former high-ranking US government officials in his willingness to defend the ICC, but the op-ed makes a number of arguments that deserve comment.

It certainly makes more sense for the court’s prosecutor to investigate the Islamic State than to investigate the United States or Britain for treatment of detainees or Israel for its handling of last year’s Gaza conflict, as some activists have called for.

There is no question that ISIS is responsible for horrific international crimes that deserve to be prosecuted. But does it “certainly make more sense” for the ICC to prosecute those crimes than British torture in Iraq, US torture in Afghanistan, and Israel’s vast array of crimes against Palestinian civilians in Gaza? That’s not self-evident. Readers know my skepticism toward the ICC investigating the situation in Palestine, but the expressive value of prosecuting UK or US military commanders and political leaders for torture would be incalculable — it would get the ICC out of Africa; it would affirm that torture, a crime that rarely involves a large numbers of victims, is unacceptable and deserving of prosecution; and — of course — it would demonstrate that no state, no matter how powerful, is immune from international criminal justice.

At a minimum, the Security Council should ask the court to investigate the numerous offenses committed by the Islamic State that fall within the court’s mandate.

[snip]

A Security Council request would be necessary because Iraq and Syria, where the Islamic State is operating, are not parties to the Rome Statute (the treaty that created the court) and are not otherwise subject to the court’s jurisdiction.

A Security Council referral is not actually necessary, because the ICC’s jurisdiction is not simply territorial. The Court can also prosecute any international crime committed by a national of a state that has ratified the Rome Statute. Many ISIS leaders are nationals of ICC member-states — including Jihadi John, who is a UK national. So the ICC could prosecute those leaders tomorrow if it had them in custody. Indeed, Fatou Bensouda has already mentioned the possibility of such nationality-based prosecutions.

Moreover, a Security Council referral may be more trouble than it’s worth. John himself notes a major problem: if the territorial parameters of any such referral exposed members of the Syrian government to ICC jurisdiction, Russia and/or China would almost certainly veto the referral. And what if the referral exposed Syrian rebels to ICC jurisdiction? I can’t imagine the US, France, and the UK would be too keen about that — not least because it would provide the ICC with a backdoor to prosecuting their nationals for aiding and abetting rebel crimes.

The United States has reason to be concerned about inappropriate and politicized investigations of the United States and Israel.

I don’t see why, given that the ICC has not opened a formal investigation in Afghanistan despite having examined the situation for eight years and has only had jurisdiction over Israel’s crimes for a few months. Moreover, John never explains why any ICC investigation of the US or Israel would necessarily be “inappropriate and politicized,” given that both states have quite obviously committed crimes within the Court’s jurisdiction. Why should the ICC only prosecute the US’s enemies — never its friends, and certainly never the US itself? Americans and Israelis might like that idea, but I imagine few others would accept it.

[B]ut the International Criminal Court still has an important role to play in investigating and prosecuting acts of genocide, war crimes and crimes against humanity — all of which have reportedly been committed by the Islamic State.

I’m not so sure, at least in the context of ISIS — and this is my basic issue with John’s op-ed. Does the ICC really need yet another situation to investigate, given its already overtaxed resources? And do we really want the Security Council to refer the ISIS situation, given that there is almost no chance it will finance the resulting investigation? (See, for example, the failed Syria resolution.) Moreover, why should the ICC prosecute ISIS leaders when states like the US, the UK, and Japan (and Germany, and France, and…) are just as capable of prosecuting those leaders themselves — if not more so? They have investigative and prosecutorial resources the ICC can only dream of. So why should the ICC do their work for them?

I’ve said it before, and I’ll say it again: we need to stop assuming that the ICC is always the best venue for prosecuting international crimes. It’s not. It’s a weak Court with more failures than successes on its ledger. Even under ideal circumstances — unlikely to exist — it would never be able to prosecute more than a handful of ISIS leaders. And if past cases are any indication, there is no guarantee those prosecutions would lead to convictions. So if states really want to bring ISIS to justice, the solution is there for all to see.

They should do the job themselves.

NOTE: I am not implying that John invented the idea that the ICC should investigate ISIS crimes. As he notes in his op-ed, the new UN High Commissioner for Human Rights has previously suggested the same thing. But that in no way changes my position — and I think it’s unfortunate that High Commissioners see the ICC as the first resort instead of the last, even in situations (such as ISIS) where, unlike states, the ICC has no ability to effectively investigate. The previous High Commissioner exhibited the same problematic tendency, calling on the Security Council to refer Syria to the ICC despite the fact that the Court would be powerless to investigate Syrian and rebel crimes as long as the conflict continues. Security Council referrals only make sense after a conflict has ended — and not even there, unless the Security Council is willing to give its referrals teeth by funding the subsequent investigation and punishing states for not cooperating with the ICC, which it has shown no interest whatsoever in doing. Do we really need more failed ICC investigations like the one in Darfur?

Guest Post: Indian Court embraces the Vienna Convention on Law of Treaties

by Sushma Nagaraj

[Sushma Nagaraj is an Advocate practicing commercial and constitutional law before the Bombay High Court, India. She assisted Mr. Kevic Setalvad, the Senior Advocate who represented AWAS Ireland Ltd. (the Petitioner before the Honorable Delhi High Court) with legal research on aviation law and public international law.]

Indian Courts have, for the most part been generous in applying International Law but recently, the Delhi High Court in AWAS Ireland v. Directorate General of Civil Aviation (W.P.(C) 671/2005, Judgment delivered on 19th March 2015, available here) marched a step ahead.

AWAS, which had leased aircrafts to Spice Jet, an Indian low cost carrier initiated writ proceedings in the Delhi High Court seeking de-registration of the leased aircrafts, upon termination of the lease agreements with Spice Jet for default in payment of lease rents. The High Court applying the Cape Town Convention on International Interest in Mobile Equipment, 2001 as also the Aircraft Protocol to the Cape Town Convention, to which India is a party, sanctioned de-registration of the aircrafts.

The Cape Town Convention and Aircraft Protocol have not been expressly, by legislation, adopted as a part of the Indian municipal law. All the same, the Supreme Court of India has, in plethora of cases including Aban Loyd Chiles Offshore v. UOI ((2008) 11 SCC 439; available here) consistently held that in the absence of municipal law, treaties can be looked into, if they are not in conflict with municipal law. In Vishaka v. State of Rajasthan ((1997) 6 SCC 241; available here) and National Legal Services Authority v. Union of India, ((2014) 5 SCC 438; available here), the Supreme Court of India applied international law even when then was no municipal law holding field in a certain area. In T.N.Godavarman Thirumulpad v. Union of India ((2012) 4 SCC 362; available here), the Supreme Court laid down a short but categorical directive – that treaties not contrary to municipal law are deemed to be incorporated in the municipal law. This was sufficient ammunition for India to apply the Cape Town Convention and the Aircraft Protocol.

While this is noteworthy, there is something else that makes the High Court judgment distinctive. In AWAS, the High Court ventured further. The High Court applied the principles enshrined in the Vienna Convention of Law of Treaties, 1969. What makes AWAS significant is that India is neither a signatory nor has it ratified the Vienna Convention. The High Court applying the principles of pacta sunt servanda in Article 26 and the general rules of interpretation of a treaty in Article 31 of the Vienna Convention, observed that an international convention is required to be interpreted in good faith, in accordance with the ordinary meaning given to the terms of the treaty, in their context, and in the light of its stated object and purpose. The High Court also applied the principle in Article 27 of the Vienna Convention which casts an obligation on a State to not only remain bound by the terms of a treaty entered into by a State but also, to not cite internal law as a justification for failure to perform its obligation under a treaty.

The Court did not debate whether the principles of the Vienna Convention constituted customary international law. This was evitable since the Supreme Court of India had, in Ram Jethmalani v. Union of India ((2011) 8 SCC 1; available here) already recognized that the Vienna Convention codifies many principles of customary international law.

AWAS marks a milestone, not only for India but also for the international community since principles engraved in the Vienna Convention, which are widely perceived as customary international law, have not just been acknowledged, but embraced by the High Court. AWAS is, without doubt, a small yet a significant contribution in the evolution of international law.