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Über dieses Buch

This book is devoted to an idea of a second round of codification of certain new rules for treaty interpretation. Currently, treaty interpretation is guided by Articles 31 through 33 of the Vienna Convention on the Law of Treaties (VCLT). 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. These rules lay the foundation for treaty interpretation. They represent the first round of codification of the contents of some previous customary international law rules. The book argues that the current rules are overly simplified. After almost fifty years of codification of the VCLT, the codified text in it is practically insufficient in addressing some traditional treaty interpretation issues (such as the interpretation involving time factors or technology development) and in coping with some new development of international law (such as the diversification and fragmentation of international treaties) and new challenges (such as the need of coordination between different treaties and the need of introducing external values, including human rights, into a treaty through treaty interpretation process). The book further argues that there is a need to have a second round of codification so as to incorporate new rules into the VCLT to be followed by treaty interpreters to make treaty interpretation more consistent and transparent, and more in line with the shared value of international community. The book proposes the contents of certain new rules to be considered as the new codified rules for treaty interpretation.

Inhaltsverzeichnis

Frontmatter

The Setting

Frontmatter

Chapter 1. Revisiting the Essence of Treaty Interpretation

Abstract
This chapter elaborates the legal interpretation in general and revisits the essence and features of treaty interpretation. It explains that treaty interpretation is an essential component of international judicial and quasi-judicial legal proceeding and is mostly conducted by international adjudicators for the purpose of clarifying vagueness so as to determine the rights and obligations of the disputing parties and to resolve disputes.
Chang-fa Lo

Chapter 2. Treaty Interpretation as Opposed to Statutory, Constitutional and Contractual Interpretations

Abstract
There are different kinds of legal interpretations, including statutory interpretation, constitutional interpretation, contractual interpretation and treaty interpretation. This chapter compares the similar and different aspects of various legal interpretations. The similar aspect is that these interpretations basically start from the textual languages. But their respective extents of reliance on the textual wording and other means of interpretation (such as the drafters’ intent, the historical backgrounds, the preparatory works and the evolutive element) are different.
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Chapter 3. Meaning of Codification and VCLT as the First Round of Codification of Customary Rules of Treaty Interpretation

Abstract
This chapter turns to explain the main theme of the book, i.e. the codification. It explains the meaning of codification in general and the specific codification of customary international law as reflected in the VCLT. The current text of the VCLT can be considered as the result of the first round of codification. The VCLT includes the codification of the then existing customary rules and the development of new customary rules.
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Chapter 4. Desirability and Some Principles for a New Round of Codification

Abstract
This chapter argues that it is desirable to have a new round (a second round) of codification process for certain new treaty interpretation rules being added to the provisions of VCLT Articles 31 to 33. There are uncertain elements in the current provisions. Also the current provisions are not sufficient to cope with various issues (such as the different natures of treaties and the important time factors). And the new situation of increasing treaty conflicts justifies certain new rules to be codified and included in the VCLT.
Chang-fa Lo

Existing Issues to Be Subject to Codified Rules

Frontmatter

Chapter 5. Boundary of Treaty Interpretation and the Possible Codification

Abstract
Treaty interpretation is subject to certain theoretical and practical boundaries. This chapter discusses various approaches and schools of treaty interpretation to explain the theoretical boundary. It also explains the internal boundaries (i.e. the constraints imposed by the interpreted treaty) and the external boundaries (i.e. the constraints arising from certain external factors) for treaty interpretation.
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Chapter 6. Difference and Relations Between Interpretation and Application of Treaties and the Possible Codification

Abstract
This chapter explains the differences between treaty interpretation (which decides the meaning of a treaty term) and treaty application (which decides the applicable provision for a dispute). It also discusses their relations, i.e. the intertwined relations between treaty interpretation and treaty application. It lists a number of situations to explain such relations.
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Chapter 7. Relations Between Treaty Interpretation and Finding/Assessment of Facts and the Possible Codification

Abstract
Fact finding and assessment is a very important element of judicial and quasi-judicial process. The fact finding and assessment process does not involve treaty interpretation issue. However, the rules governing the fact finding and assessment (including the evidential rules) are subject to treaty interpretation. The chapter discusses that a treaty interpreter should have a broader and more flexible latitude to interpret the procedural rules so as to make the dispute settlement mechanism properly function.
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Chapter 8. International Adjudicating and Non-adjudicating Bodies as Treaty Interpreters and the Possible Codification

Abstract
This chapter explains that there are proliferated international adjudicating bodies which interpret the disputed treaties. There are also non-adjudicating bodies which are granted with the authorities to issue authoritative interpretations. Domestic courts sometimes have to interpret self-executing treaties. The chapter also explains the reasons for international adjudicators and domestic courts are bound by the VCLT when interpreting treaties. It also explain that treaty interpretation is generally not needed in mediation/conciliation.
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Chapter 9. Interpreting Treaties for Private Matters and the Possible Codification

Abstract
This chapter argues that there is a group of treaties for private matters, the interpretation of which should be subject to different rules. It is because such treaties are concluded to directly and indirectly govern private relations. The factors to be considered when interpreting such treaties include the international character of the matter, the promotion of uniformity and consistency, the good faith requirement, and the general principles based by such treaties.
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Chapter 10. Methods of Searching for the Ordinary Meaning and the Possible Codification

Abstract
This chapter focuses on the reasons of relying on the ordinary meaning and the methods of identifying the proper ordinary meaning for an interpreted treaty term. It explains that referring to the usage of the term in a separate treaty could be one of the methods of identifying the ordinary meaning. It is also a common practice to search for the possible ordinary meanings from dictionaries. This chapter suggests that there must be certain rules to guide the use of dictionaries for treaty interpretation purpose.
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Chapter 11. Ways of Taking into Consideration the Object-and-Purpose and the Possible Codification

Abstract
This chapter explains the meaning of object-and-purpose provided in VCLT Article 31.1. It also explains that the object-and-purpose can be identified from the preamble and from the text, and can even be inferred from the text. It further discusses the ways of considering the object-and-purpose of the interpreted treaty.
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Chapter 12. Means of Taking into Consideration the Context and the Possible Codification

Abstract
This chapter explains the contextual interpretation, especially the functions and scope of context. It also explains various contexts, including other parts of the main text and annexes as the context. It discusses the possibility that preambular provisions in a treaty can either be a context or an object-and-purpose. This chapter further discusses the extended contexts of subsequent agreement and practice as well as the relevant rules of international law. It explains the different between the context and the factual context for treaty interpretation purpose.
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Chapter 13. Special Meaning, Supplementary Means and Different Languages as well as the Possible Codification

Abstract
This chapter discusses the situations when a special meaning should be given to the interpreted term and when the supplementary means of interpretation should be used. It explains the confirming function and the determining function of the supplementary means. The absurdity principle, preparatory works and circumstances of conclusion are also elaborated. In addition, the chapter explains that a different language version of a treaty can serve as context or can help find the ordinary meaning of an interpreted term.
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Chapter 14. Some Other Supplementary Interpretation Principles and the Possible Codification

Abstract
This chapter further elaborates some other principles serving as supplementary means of interpretation. The principle of maximum effectiveness, the principle of in dubio mitius and some other Latin maxims are the commonly cited principles for treaty interpretation. But are only supplementary means and can only help confirm the meaning resulting from the application of Article 31 or determine the meaning of the interpreted term when the interpretation according to Article 31 could still leave the meaning ambiguous or obscure.
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Chapter 15. Time Factor, Technological Development, Evolutive Interpretation and the Possible Codification

Abstract
Time factor and the evolutive interpretation are not included in the current treaty interpretation rules. This chapter suggests that the evolutive interpretation should be used when certain requirements are met so as not to make a treaty become obsolete. This chapter also discusses that technology development and the technological neutrality are factors to help decide the use of an evolutive interpretation.
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Chapter 16. The Formula Approach for Indefinite Legal Concepts and the Possible Codification

Abstract
This chapter explains that there are “indefinite legal concepts” (such as “necessary” and “public interest”) which are intrinsically abstract and indefinite. Merely relying on finding the ordinary meaning of such terms might not be sufficient to understand their meanings and related application. There must be certain formulas developed for such terms to help their interpretation and application. This chapter uses some examples to show that the formula approach is desirable for such indefinite terms and is workable in real practice.
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Chapter 17. Sequence, Hierarchy, Good Faith, Holistic Interpretation and the Possible Codification

Abstract
This chapter explains that although there are various methods of treaty interpretation and although an interpreter almost always starts from identifying the ordinary meanings of the textual wording, these methods are not subject to rigid sequence and hierarchy in their application. The interpreter will be bound by the good faith requirement and conduct an overall/holistic assessment after having resorted to various interpretation methods. The chapter also explains the needed flexibility for the interpreter when conducting treaty interpretation.
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New Issues and Perspectives

Frontmatter

Chapter 18. Introducing Fundamental Values into Treaty Interpretation and the Possible Codification

Abstract
This chapter explains that an interpreter could encounter the situation where two or more ordinary meanings need to be selected. In such case, the interpreter’s personal values could have a role to play. As a principle, he/she should select the ordinary meaning which is more in line with the object-and-purpose of the interpreted treaty in protecting fundamental human values, taking into consideration the context of protecting human values for the interpreted provision.
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Chapter 19. Coordination Between Different Treaties Through Treaty Interpretation and the Possible Codification

Abstract
The proliferation of international treaties has been increasing. The result is that there are more actual and potential conflicts between the treaties. This chapter uses the relations between the WTO and the Framework Convention on Tobacco Control (FCTC) and between bilateral investment treaties (BITs) and FCTC as examples to show the need of coordinating the conflicts. One way of coordinating the conflicts would be to properly rely on treaty interpretation methods.
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Chapter 20. Conclusion—Features and Perspectives of the New Codified Rules of Treaty Interpretation

Abstract
This chapter summarizes the arguments for a second round of codification of the treaty interpretation rules. It also drafts the codified rules to be added to the current text of  customary international law for treaty interpretation in the VCLT. This chapter suggests 29 new paragraphs to be added to the VCLT and 2 amendments to be added to an existing paragraph and to modify an original paragraph.
Chang-fa Lo

Backmatter

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