The Vienna Convention on the Law of Treaties, Article 31, of 1969, outlines the manner in which a treaty will be interpreted.
Interpretation of treaties is a controversial topic in international law. The implementation of a traity can have serious consequences for and implications for national interests.
How relevant and effective are the VCLT provisions after fifty years?
Fitzmaurice and E. Olufemi / P. Merkouris: “Treaty Interpretation & the Vienna Convention on the Law of Treaties – 30 Years on”, eBook Collection 2010. Vol.
The last few decades have seen a lot of activity in public international law.
There are many developments in the law of Treaties. Particularly, the increased concern about Article 31(3) (c), of the Vienna Convention of the Law of Treaties of 1969 of May 29, 1969 has been significant.
It is important to remember that the convention can only be used together. However, where the Convention provides residual rules, it can always be combined with another treaty.
The VCLT will typically bring into play elements that may be called expediency, the relativity of Treaties.
A relativity of substance can occur when Article 31(3) (c), of VLCT refers to the obligations as well as rights of different parties to treaties that are related to the same subject matter. Or there may be other relativities governed under the legal plus logic standard.
As a result of the proliferation of international courts and tribunals, as well the solidity in international law’s guideline, there has been an increase in international law disintegration discussions.
As a possible response to this anxiety, the topic of interpretation, with particular position to Article 31,(3) (c), of the Vienna Convention, has been the focus of a lot of discussion.
The buildup of multiple elements may explain the sudden interest in the provisions.
In other words, there is a growing concern that fragmentation may be a result of the expansion of international tribunals and courts. This was evident during the 6th Committee discussions that were delegated to International Law Commission (ILC). The discussion concerned fragmentation at both an institutional and normative level.
This paper will assess the effectiveness and relevance of the VCLT provisions, including Article 31 concerning the interpretation of treaties following 50 years.
Setting the Scene
In the 1950s, the international communiation decided to pay more attention to interpretation and to use all of its available resources to manage the complexity that it entails.
The International Law Commission considered whether interpretation should include a wider collection of values as well principles of international legal order. Furthermore, it should not limit itself to a narrow range of universal principles and be dangerously indistinct.
The Convention’s article 31 is thought to include the code for “systemic integration”, and is now considered to be the “master key” to the international community of law.
This article can therefore be understood as a technique to evolve on the construal-by-allusion to resources method without a strong connection with a specific treaty.
The majority of tax academicians believed that Article 31 should be restricted to reflect the status of OECD commentary. This was despite the fact that the discussion took place before the publication of “Fragmentation Report”, (2006), and “Oil Platforms”.
The Fragmentation Report emphasized that treaties cannot be applied in isolation.
They believe that any treaty must contain a normative context that can’t be ignored and should be taken into account.
All international law exists in a universal association along with other regulation. Thus, treaty relevance is not possible without placing the appropriate tool within its normative setting.
This is why the instrument must be used in its context and not just interpreted.
Operation of Article 31(3)(C) Of The Vienna Convention
Although a legal text written by human beings may be ideal, it cannot be used in a way that is unambiguous about its capabilities or actual implication.
Interpretation of legal texts on a national and international scale is required.
Interpretation is the act of making a specific treaty’s implication a reality.
The Vienna Convention regulations for interpretation attempt to define the aspects to be considered as well as to evaluate their relative influence on that procedure.
Article 31(3) (c), established the universal law on interpretation by establishing standards that are generally accepted for the interpretation of the aspects.
These standards are mostly derived from international and arbitral process.
Fragmentation is a limitation in the interpretation of diverse treaties under Article 31(3)(c).
The doctrine of systematic incorporation is also included in this article. It refers to the method by which global responsibilities will be interpreted according their normative settings.
Along with the article’s customary comparable, i.e. the standard for systemic integration, this article gives international judges the possibility of using systemic interpretation.
This means that the interpretation is one that takes into account the function of the system from which the rule is being applied.
Although the article is pro-international order, it focuses on legal issues. However, this strategy reveals a profound awareness of oneself.
This is why, in addition to using the adjacent concept of “systematic Integration”, which is a common method of municipal rule, the international law commissioner baptizes the instrument of interpretation in this way: a systematic integration that can draw two inferences.
The international law commission recommends that extraordinary international laws be harmoniously integrated in the universal coordination. It also believes that international rule coordination is growing to be complete, uniform, and firm if it is linked to a practice that encourages harmonious incorporation.
It is a system that is not well developed and often ineffective because of its decentralized structure, its lack impartiality, and its supremacy of absolute bilateralism.
Accordingly, article’s teleology will not only protect the system’s integrity but also provide an affirmative input for its further integration.
This suggests that the idea of “systemic Integration” is not static as it requires for advancement.
This is no surprise since the article was originally designed to facilitate inter-temporal renewals in treaty stipulations.
The Convention’s final edition succeeded in eliminating the Fitzmaurician doctrine for modernity.
Final decisions were to transfer this component of interpretation into subsection three of article. This was a component that is intrinsic to both the text and the “perspective”.
Inter-temporarily can be indiscriminably connected to flexible and evolutive techniques of interpretation that demand for the interpretation a value in accordance with any development, which has occurred in the court’s relevant legal organisation due to the ratification.
Justification for Article 31(3) (C), VCLT
Although Article 31(3) (c), of the treaties offers this option, it is done in a wider intertemporal context.
This means that the agreement could be modified by the subsequent advancement of law.
This indicates that the treaty can be dynamic and changes as it evolves, and is open to adapting to the new international law.
This means that, over the 50 years of operation of the VCLT it has experienced changes in interpreting treaties. Article 31 needs to be amended to keep pace with the changing dynamics and laws.
To be fair to International Law Commission one must admit that it actually calls for a renowned (active method of interpretation) through its novel name of systemic Interpretation Method, which makes it an orientation to the inter-temporal part of the article.
However, the ILC chose to examine inter-temporality as a unique issue in systemic integration.
This is a sign of growing international law system’s commitment to profound integration as a universal process.
Many experts in public international law agree that any law of international should be based on any structure official foundation of international law. This could include an international treaty, rule of traditional International Regulation, or universal doctrine of international law.
Article is a term that refers specifically to international law regulations that are binding and have been long established by the ICJ in case like Oil Platforms.
In the case of Criminal Matters (2008), the International Court of Justice considered that the 1977 Treaty of Friendship and Cooperation could be applied to responsibilities of other agreements operating among the same parties.
Nevertheless, since the OECD Commentary has a soft rule, a thought-provoking question emerges: Could Article 31(3) (c), which refers to non binding origins that constitute the normative setting, be possible?
Bruno Simma, an ex judge at the International Court of Justice has created a discussion about whether non-binding resources can legally influence agreements under Article 31(3)(c) OF the Vienna Convention in the explanation of arrangements.
Simma (2009) and Kill (2008) believe the article does not use the term “in force”; however, it applies the term „applicable” in line with the «rules» at hand. The element of flexibility is allowed in the interpretation.
Although the term “binding”, does not have a specific legal content, “applicability”, does.
It is important to not interpret the article too narrowly. Additionally, it should contain non-binding guidelines.
Villinger (2009) asserts that the term “applicable” doesn’t take into account doubt and non-binding law cannot be relied upon.
Simma and Kill (2009a) admit that the authors didn’t address the question of “applicability”.
According to these authors, “applicable” is a concept that allows more flexibility than either “in force” nor “binding”.
Each of these authors has addressed the potential significance of the expression.
Additionally, the European Court of Human Rights’ (ECtHR) resolutions support the concepts advocated by Simma & Kill (2009).
The ECtHR resolutions demonstrate that the authors’ approach was not only theoretical but is also well applied in practice.
This shows that the ECtHR has established a precedent in the use article when describing non-binding norms which are not specific to a treaty.
ECtHr practice in referring to the non-binding normative environment of treaties
The ECtHR clearly applied Article 31(3) (c), which allowed for reference to binding and nonbinding normative environments in treaties.
In the non-binding materials, the ECtHR applies the article with the greatest reliability, in particular in the case Demir & Baykara vs. Turkey (2008).
This case concerns a civil servant labour union that was part of a collective agreement with the Turkish metropolitan.
The Turkish courts declared the collective agreement invalid after the metropolis broke the contract.
The European Court of Human Rights heard the protests of the labour union members, who claimed that the collective contract was in violation of article 11. Article 11 is about freedom of assembly and association.
This claim was considered by the ECtHR who stated that, in accordance with the article’s stipulations, it was obligated not only to consider applicable rules but also doctrines of international laws.
To reach a concrete verdict, ECtHR used soft material of the International Labour Organization. This includes recommendations from the European Union and the European Social Charter. Turkey has not ratified the ESC. The interpretations of this agreement were also provided by the Charter’s Committee of Independent Experts.
These international organizations had no binding norms.
This is why Article 31(3)(c) allows for non-binding normative settings of the treaty.
This recognition has also emerged from the case law of the European Court of Human Rights as well as that of the International Court of Justice.
This recognition has two main themes: the amalgamation of and the synchronization between the international legal systems. This is essential for the avoidance of double taxation.
The case law of the European Court of Human Rights might not allow for an extrapolation to tax law interpretations.
This does not mean that the article was used in the ECtHR’s case. It is possible to rely on this article under agreement to interpret these treaties in accordance with non-binding standards.
Therefore, the article’s broad potential, as well as the ECtHR’s use of it, is not considered something which can be applied routinely to agreements.
The ECtHR’s nature is a constitution, which has an impact on moral principles and requires a flexible approach in interpreting a treaty to ensure their protection under various circumstances.
The ECtHR offers an opportunity for a greater strategy for the interpretation of treaty that would be possible under bilateral treaties.
The above discussion validates the truth that Article 31(3) (c), of VCLT remains relevant and effective in interpreting treaties fifty years later.
This is especially true in cases of binding or non-binding normative environment, where the article remains as relevant and effective in interpreting treaties five decades later.
The background of Article 31 is considered. This includes the Fragmentation Report 2006, case of “Oil Platforms”, and the case law regarding the European Court of Human Rights. It seems reasonable to assert an interpretive claim on this article’s foundation to invalidate remedy for a non-binding normative setting of any agreement.
It is important that you remember that claims concerning the impact of the ECtHR’s extensive use of articles are only valid under human rights-related treaties.
The Convention’s article has led to challenges to norms that have been introduced in interpretation. However, these are not ambiguously accepted by the affected parties.
To address these objections, it is possible to advance issues that underlie the article and help clarify the working of its prospect.
It seems that Article 31(3) (c), in its current understanding, is fully capable of opening up new commentaries, including OECD Commentsaries’ unique habitat in the sphere tax international issues.
Abi-Saab G., “The Appellate Body & Treaty Interpretation”, The WTO at Ten, Giorgio Sacerdoti and Alan Yanovich (eds.
Modern Treaty Law and Practice, Cambridge: CUP 2008, 2nd Edition.
Brolmann C., “Limits of the TreatyParadigm”, Interrogating the Treaty. Essays In The Contemporary Law of Treaties Malgosia Fitzmaurice & Matthew Craven (eds.).
(Nijmegen – Wolf Legal Publishers, 2005), 29,
Carlos M. V., “Treaties Law of the Ground: The Supremacy Clause as well as the Judicial Enforcement of Treaties”, in 122 Harv.
Interpretation under International Law of Tax Treaties.
A Study of Articles 31, 32, and 33 of the Vienna Convention on Law of Treaties. Their Application to Tax Treaties. (Amsterdam: International Bureau of Fiscal Documentation 2004, 2004).
French, D. Treaty Interpretation & the Incorporation Of Extraneous Legal Regulations”, 55 Intl.
Gardiner R. Treaty Interpretation, OUP 2008, p. 265.
Guzman A.T., “Saving Customary International Law”, 27 Michigan J. Int. L. 115.124-28, 2005.
Koskenniemi M., “The Fate of Public International Law Between Technique and Politics”, 70 MOD.
McLachlan C., “The Principles of Systemic Integrity and Article 31(3)(c) of The Vienna Convention”, 54 Internationaltl.
Merkouris P. Art 31(3)(c). VCLT and the Principle for Systemic Integration.
The Interpretation of Acts and Rules in Public International Law. p. 366. (OUP Press 2008).
D. Rietiker. “The Principle of “Effectiveness” in the Recent Jurisprudence of European Court of Human Rights: Its Different Dimensions, Its Consistency and Public International Law No need for the Concept of Treaty Sui Generis,” 79 Nordic J. International.
UK: ECtHR. 21 November 2001. Al-Adsani v. United Kingdom. Judgment No.
Rosentreter D. Article 31,(3)(C), of the Vienna Convention on the Law of Treaties and the principle of systemic integration in international investment law and arbitration.
Samson M., “High Hopes, Limited Resources: A Word of Scicism about the Anti-Fragmentation Functional of Article 31(3) (c) of the Vienna Convention on the Law of Treaties”, Leiden Journal. Intl. 3 (2011).
International Investment Law for the 21st Century. Essays to Honor of Christoph Schreuer.
The Rhetoric of Justification. In The Rhetoric of Sincerity. Cultural Memory in The Present (E.T.
Smith eds. Stanford U.
“The Use of Article 31(3)(C), of the VCLT within the Case Law of the ECtHR – An Effective Antifragmentation Tool, or a Selective Loophole to Reinforce Human Rights Teleology?” 31 Mich. J. Int. L. 621 (2010).
Van Brunschot F.The Judge and the OECD Model Tax Convention with its Commentaries, 59. Bull.
On the Interpretation of Treaties. The Modern International Law as Expressed by the 1969 Vienna Convention on the Law of Treaties. p. 262.
Commentary on the 1969 Vienna Convention on the Law of Treaties. P. 433 (Nijhoff 2009).
Vogel, K. «The Influence of OECD Commentsaries on Treaty Interpretation», 54 Bull.
“The Legal Situation of the OECD Commentsary and Static Or Ambulatory Interpretation Tax Treaties”, 43 EUR.