treaty interpretation'' in a judicial context

Under Constitutional law, interpretation of treaties is a federal question. Paragraph 2 of Article 31, as noted above, deals with context and is a key component for treaty interpretation. E. Cannizzaro (ed. ""° European treaties, on the other hand, are increasingly conceived by European courts as constituting communities of states as well as of citizens. Currently, treaty interpretation is guided by Articles 31 through 33 of the Vienna Convention on the Law of Treaties (VCLT). Treaties -- Interpretation & construction, Judicial deference, War on Terrorism 2001-2009 -- Political aspects, Separation of powers Judicial Lawmaking and General Principles of Law in International Criminal Law ... lematic in the context of international criminal law. This is an important issue in some common law jurisdictions such as the United States, Australia and Canada, because the supreme courts of those nations can overturn laws made by their legislatures via a process called judicial review. The six books under review contribute, in various ways, to the ‘database of treaty interpretation’ (Gardiner, at . In this essay, Coates explores the future contexts in which the Treaty of … ... and contextual interpretation (which relies on the wider context). Proposals and comments in the Submissions 2. These are the three methods indicated early on in the Van Gend en Loos judgment by Now updated to include cases from a greater range of domestic jurisdicutions, a new chapter on criticism, themes, and issues, and an account of the completed work of … The General Rule: (1) The Treaty, its Terms and their Ordinary Meaning 143 1. The number of treaties has multi• plied greatly. It can be rebutted but the burden of proof is considerable. I. Interpretation of investment treaties 2 A. Appellate Body is to interpret and apply the multilateral treaties collectively known as the World Trade Organization (WTO) covered agreements. The most fundamental rule is articulated in Article 31 (1): "A treaty shall 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 object and purpose." The The Vienna Convention on the Law of Treaties sets the rules of treaty interpretation in articles 31-33. Also known as ‘objects and purpose’ method • Union of India v/s Azadi Bachao Andolan – SC observed that “the principles adopted for interpretation of treaties are not the same as those in interpretation of statutory legislation. [9] Rules of interpretation are used to ascertain the "intent of the parties" (as in the interpretation of mu-nicipal contracts). II. 5 s the U.S. population have grown and policy questiOns have become more complex and law has not become clearer. 2. Abstract. The fundamental rule is that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. Judicial interpretation refers to how the judiciary construes the law, particularly constitutional documents, legislation and frequently used vocabulary.This is an important issue in some common law jurisdictions such as the United States, Australia and Canada, because the supreme courts of those nations can overturn laws made by their legislatures via a process called judicial review. The desire to rule out treaty modification by interpretation also shows, for instance, in the distinction between subsequent agreement which amounts to a new treaty and agreement which does not. In any case, the Commentary can only clarify and provide guidance on treaty interpretation and not make radical changes that affect the context. Generally speaking, However, the methodology of interpretation of international norms used by these courts remains This does judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. international judicial practice.3 Yet its dramatic deployment by the International Court in Oil Platforms as a bridge between the provisions of a treaty of friendship and the customary international law of armed conflict has served to reignite interest in the clause™s potential scope and application. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: Resources Further Reading Isabelle Van Damme, "Treaties and Treaty [...] Treaties and Treaty Interpretation in International Economic Law This section provides an overview of treaties and treaty interpretation within the legal context of Sources of Law in international economic law . The rules of treaty interpretation codified in the Vienna Convention on the Law of Treaties now apply to virtually all treaties which may be encountered in an international context and also within national legal systems where treaties have an impact on a large and growing range of matters. INTERPRETATION APPLYING THE VIENNA CONVENTION ON THE LAW OF TREATIES A. Frank Berman. These components constitute the first part of the general rule for interpretation of treaties. The Conventions set forth a detailed code of conduct that is designed to provide human- Foster. I. See, for example, Roberts, A. In this context, an argument for purpo sive interpretation, if it is to be convincing, must be grounded on other consider ations. By Scott M. Sullivan, Published on 01/01/08. procedures by means of judicial reasoning on the basis of legal principles, rules, judicial interpretation, "balancing," and "optimization. 1216 The determination of cil often requires textual interpretation, as State practice and opinio juris are mainly reflected in verbal acts. The ICRC correctly notes that in addition to the text of the treaty, consideration must be given to the preamble and any annexes to the treaty (para 83-85). “interprets” the treaty, since concluding an “interpretive” agreement may domestically . The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a Introduction Beneﬁcial owner is one of the most important concepts used in tax treaties. conventions require legislation before they can have the force of law. Beneﬁcial Ownership in Tax Treaties: Judicial Interpretation and the Case for Clarity Jinyan Li1 1. ), Cf. take into account, together with the treaty’s context, “(a) any subsequent agreement between the parties regarding the interpretation of the treaty … The chapter explores the interpretation of international treaties by domestic courts in the era of world society and legal pluralism. Yet these rules are quite vague, and they leave a lot of room for judicial discretion. Authors. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. Introduction. 2018] HUMAN RIGHTS AND JUDICIAL INTERPRETATION 701 when the Court embraces human rights norms over restraining principles of criminal law. 12 This Article focuses on treaty interpretation, to the exclusion of the parallel issues that might arise with respect to other forms of international agreement, largely because the courts have addressed the deference issue thus far only in the treaty context. Beneﬁcial Ownership in Tax Treaties: Judicial Interpretation and the Case for Clarity Jinyan Li1 1. or structure that requires judicial deference to the executive branch on treaty interpretation issues. With an unusual candour for an academic, Pierre Bourdieu once noted ‘the ability [of academics] to raise speculative problems for the sole pleasure of resolving them, and not because they are posed … by the necessities of life’.1 At first sight judicial activism in international law seems an excellent candidate for the kind of academic issues with little or no practical relevance that Bourdieu had in mind, and this is for a very simple reason. Yet these rules are quite vague, and they leave a lot of room for judicial discretion. Given the central place of the judicial branch in domestic legal contexts, it comes a… Both parties have based their arguments on the interpretation of the Treaty in accordance with Article 31(1) of the Vienna Convention. The judicial bodies act as “the authorities of last resort”. The interpretation of all types of … TELEOLOGICAL OR PURPOSIVE INTERPRETATION Treaty is to be interpreted so as to facilitate the attainment of the aims and objectives of the treaty. exercise of judicial discretion is limited by only two rules: (1) The first task of treaty interpretation is to establish \vhether the consensus of the parties has produced any legal effects. (2010), "Power and Persuasion in Investment Treaty Interpretation: The Dual Role of States," American Journal of … Treaty Interpretation. 6. The Law of Treaties Beyond the Vienna Conventio This article seeks to consider, in more detail, one particular aspect of treaty interpretation: to what extent may a tribunal in interpreting provisions of a of a broad rule of treaty interpretation in customary international law, but serious Constitutional law dilemmas in the context of federal-state judicial relations. The international law of treaty interpretation, as codified in the Vienna Convention on the Law of Treaties (“Vienna Convention”), prescribes general rules of interpretation, based on a plain meaning approach, that apply uniformly to all treaties. Yet courts, states, and scholars seem to agree that some treaties warrant special interpretive rules. Although it grew out of a much deeper dispute, involving not just the United States but numerous other States, about the military tactics employed during the Iran-Iraq war, and although that methodology for the interpretation of international human rights treaties. It limits the beneﬁt of treaty-reduced withholding taxes on dividends, interest and royalties to recipients who are beneﬁcial owners of such income. The canons of interpretation impugned by such scepticism as anything but the most rebuttable of presumptions in particular context: remain sanctified nevertheless by a vast body of doctrine, and by innumerable apparent applica- … to the executive branch on most treaty interpretation questions. To say that treaties … From the practice of judicial treaty interpretation, it seems that there exists a presumption that materials evidencing such conduct, statements, or lack thereof cannot inform the meaning of the treaty text. The judicial record from the early nineteenth century suggests, at a minimum, that there is nothing inherent in the constitutional text or structure that requires judicial deference to the executive branch on treaty interpretation issues. In recent years, the Supreme Court has almost always deferred to executive branch views on treaty interpretation issues. Other provisions of Article 31 provide a specific definition of "context" and additional related guidance. The primary international resource for judicial interpretation of foreign treaties or other instruments is the 1969 Vienna Convention on the Law of Treaties2 – a treaty that the Supreme ... ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. Article. Executive dominance was not always the norm, though. Accordingly, the interpretation of a Tax Treaty should also be based on principles and rules of interpretation applicable internationally . This Article explores an appropriate foundation for tax treaty interpretation, and ad 2. 7 A technical or contractual interpretation of treaty wording should be avoided […] 8 While construing the language generously, courts cannot alter the terms of the treaty by exceeding what “is possible on the language” or realistic […] 9 Treaty rights of aboriginal peoples must not … Principles of Treaty Interpretation: Meaning and Function 32 2.1 Introduction 32 2.2 The Position under General International Law 34 2.2.1 Principles, Not Rules 34 If 2 The six books under review contribute, in various ways, to the ‘database of treaty interpretation’ (Gardiner, at 57), and thereby further our understanding of this art. It limits the beneﬁt of treaty-reduced withholding taxes on dividends, interest and royalties to recipients who are beneﬁcial owners of such income. Document Type. Yet in the hands of certain judicial organs engaged in constitutional interpretation, these codified interpretive TREATIES AND THE INTERPRETATION OF STATUTES: TWO RECENT EXAMPLES IN THE MIGRATION CONTEXT Glen Cranwell* 1 Introduction It has been generally accepted that treaties and other international instruments require legislation to alter the rights and obligations of persons under Australian domestic law, if not Shai Dothan. sense. interpretive context changes, geographically or institutionally. Most countries accept the right of their Courts to interpret double tax treaties. ... in the statutory and treaty context and notes the latent tension be- Part I will argue that legal interpretation is not simply the process of attributing a meaning to the text of a treaty but is ultimately an act of 2. UN treaties and UN 1. Treaty Interpretation 781 To date, the Judiciary has failed to provide any clarity in its doctrine for dis cerning between the two. Whether and to what State courts are not free to interpret a treaty … It has done so rather inconsistently, though some pragmatic and contextual explanations can be discerned from its reasoning. Part III adopts a com- ... such as treaties, to flesh out ways in which rules of treaty interpretation can help alleviate the problem of gaps … 93 Whether the text to be interpreted is a human rights convention, a boundary treaty, or an inter-state loan agreement, the same set of interpretative rules apply. This is indicative of the refusal to abide in the idea that there exist any maxims or clear-cut and mechanical rules to be applied in the interpretation of treaties." Treaty interpretation, as a subject of an academic genre, is usually approached from either a practical perspective, analyzing the practice of treaty interpretation to deduce theoretic and systemic conclusions on the topic, or a theoretical perspective, using practical examples as illustrations for the points made. TREATY INTERPRETATION IN HAMDAN V RUMSFELD Keywords. The best way to learn the art of treaty interpretation is to study the interpretative practice of international courts and tribunals. 1 Yet courts, states, and scholars seem to agree that some treaties warrant special interpretive rules. Academic writing has focused primarily on judicial pronouncements on the meaning of a treaty and on the process through which interpretive conclusions are reached. This feature logically has become more articulated in recent years against the backdrop of the growing number of active forums of dispute resolution in international law. contrary, treaty preambles appear to be a continuing source of confusion and uncertainty, specifically as regards their role in treaty interpretation.15 Uncertainty is by no means foreign to the endeavor of treaty interpretation and the interpretive approach set forth by the VCLT in The context for understanding contemporary political debates regarding judicial power is provided by a proper account of the theory and history of judicial review. TREATY INTERPRETATION ing at the time interpretation is made. [34] Once Canada's international obligations have been implemented by the government through one technique or the other, these obligations can then be the subject of interpretation by various domestic courts just like any other law. [35] There are two theories regarding the method of interpretation that should be chosen. Some states (such as the United States) are not a parties to the treaty, but recognize that the Convention is, at least in part, merely a codification of customary international law. This chapter analyses the principal elements of the general rule for treaty interpretation under Article 31 of the Vienna Convention. A 'treaty' 142 1.1 The 'treaty' and its 'terms' 144 1.2 The sound of silence-absent and implied terms 145 2. 1.5 Treaty Interpretation in WTO Dispute Settlement 22 1.6 Authentic Interpretation versus Judicial Interpretation 26 1.7 Conclusion 30 2. Thrticle argues that in order to reaffirm its liberal is A TREATY INTERPRETATION: A CURRENT APPLICATION TO THE EUROPEAN COURT OF HUMAN RIGHTS . During this References (p. 381) 2. It is very rarely that the whole subject of treaty interpretation is dealt with in such detail in one study, and the achievement of the author is … The context for the purpose of the interpretation of a treaty shall comprise, in … The Supreme Court has ruled in favour of interpreting treaties in light of the international principles for the interpretation of treaties. [41] The question that must be considered is whether a conflict could arise between the principles of interpretation applicable to domestic legislation and those applicable to international conventions. 1" Part III discusses the implication of that inconstancy for traditional doctrines of judicial deference to other branches' interpretations of treaties. 80. This Article provides that a treaty be “interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” TREATY INTERPRETATION IN HAMDAN V. RUMSFELD The Geneva Conventions are a set of four treaties concluded in 1949 that regulate the conduct of warfare. Outline of issues specific to treaty interpretation in the context of ISDS B. Interpretative authority of treaty Parties 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. ‘Future Contexts for Treaty Interpretation’ by Natalie Coates is the penultimate essay in the 2018 collection: Indigenous Peoples and the State: International Perspectives on the Treaty of Waitangi. It focuses on the components of article 31(1): (1) a treaty; (2) good faith; (3) ordinary meaning of terms; (4) context; and (5) object and purpose. Moreover, the change cannot be applied on treaties concluded prior to the Commentary Update 2000 since a dynamic interpretation will … Textual interpretation is the starting point of treaty interpretation, 1215 a treaty being, by definition, written. Language is a communal institution, and shared. However, the Tribunal also applied Article 31(2) which provides that “[t]he context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, […] its preamble and annexes.” In this regard, the Tribunal looked at the provisions of the Treaty where the term “ressortissant” was used. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. Judicial interpretation refers to different ways that the judiciary uses to interpret the law, particularly constitutional documents, legislation and frequently used vocabulary. interpretation of all treaties, including the constituent instruments of international organizations-as such the rules would appear to constrain judicial bodies' interpretive discretion. The European ... national context. treaty interpretations are acceptable to the parties is therefore very much dependent upon the individual context of the dispute and the decision ulti-mately reached. Treaty interpretation is among the most controversial subjects of international law.l While scholars generally agree that treaty interpretation should ascertain the intentions of the parties, they rely on different hermeneutic principles to accomplish this task.2 The first period dates from 1850 (the year of the first court ruling involving the treaty) and ends in 1889 (the year of the landmark Botiller v. Dominguez case). The context for the purpose of the interpretation of a treaty … 1. Treaty Interpretation: The Authority of Interpretive Communities ... . In my view, the application of treaty interpretation principles have not resulted in a complete understanding of the treaties and their implications. I.01 The Commentary to the OECD Model Tax Convention on Income and on Capital (hereinafter respectively the ‘Commentary’, and the ‘Model’ or ‘Convention’1 ) in its Introduction Treaty "Interpretation" in a Judicial Context Sir Frank Berman, Q.C.t I. I. of a broad rule of treaty interpretation in customary international law, but serious Constitutional law dilemmas in the context of federal-state judicial relations. Treaty interpretation, generally speaking, is the the process of determining or arriving at the meaning of a text when parties to a dispute differ or disagree on the meaning of the text.