Treaty Interpretation And The Incorporation Of Extraneous Legal Rules

Abstract

This paper considers under what circumstances, and for what reasons, an international tribunal may want to range beyond the primary text of a treaty to determine its ‘correct’ meaning; such extraneous legal material potentially including rules of customary international law, other treaties between the parties, general principles of law, and documents of a ‘soft law’ nature. The paper suggests a variety of ‘mechanisms’ by which a tribunal may undertake a broader interpretative approach, though all ultimately raise the same inevitable tension between accusations of judicial activism and counter-arguments of inflexibility and insularity. Nevertheless, many tribunals and individual judges continue to utilize such techniques, particularly noticeable in some recent environmental disputes. The paper will conclude with a note of caution; that though such interpretations are becoming an increasingly significant part of modern judicial decision-making—something that is generally to be welcomed—tribunals must concurrently take care to ensure that they remain within the accepted parameters of the adjudicative function.

Exploring The Narrative of Heritage Through The Eyes of The Law

“…Bakker (2011) argued that since the meaning of heritage is socially constructed, complex, and multifaceted, the interpretation of laws that preserve and present the vessels of values embedded in a heritage should be geared towards achieving heritage topographies that represent open-ended transmitters of meaning, knowledge, emotion, and experience where inclusiveness is the dominant narrative. This compels a construction of "what is a heritage" in its systemic environment via the exploration of the normative landscape captured in the text of law (ILC, 2006;McLachlan, 2005;French, 2006).…”

Trade and Precaution: Their Progressive Interlace

“…Commentators have been divided on the question of how far the WTO Agreement permits or accommodates the application of the precautionary principle [78][79][80][81] . Even in the absence of an explicit provision, the precautionary principle is incorporated into the WTO agreements through gateway provisions [82] and it can further be introduced through such provisions [83][84][85][86][87][88] . In addition, Article 31(3) (c) of the Vienna Convention of the Law of Treaties [89] provides that although treaty provisions usually override other rules of international law, general principles of international law will still apply unless specifically excluded by the treaty provision [90] .…”

Dealing with the Fragmentation of Global Climate Governance: Legal and Political Approaches in Interplay Management

“…It includes a principle of 'systemic integration' (McLachlan 2005) that opens up the possibility to interpret treaties in the light of a broader system of international law, of which other related treaties related are also a part. Given the relatively young age of international environmental law, the lack of references to environmental considerations, linkages between environmental and non-environmental issue areas, and continuous changes in scientific insights (French, 2006), it is attractive to use this interpretative tool in disputes between, for example, climate and trade. Pontecorvo (1999) views the provision as a possibility to apply a 'harmonising approach' to the conflict between the CBD and Kyoto Protocol on the issue of sinks.…”