Environmental Engineering Reference
In-Depth Information
However, the last approach is subject to criticism, since it leaves room for judicial
law-making, because judges or arbitrators will be called upon to define the object
and purpose.
246
For a comprehensive interpretation it is necessary to take all
abovementioned aspects into account. The ICJ already pointed out in 1950 that:
(
) [T]he first duty of a tribunal which is called upon to interpret and apply the provisions
of a treaty, is to endeavor to give effect to them in their natural and ordinary meaning in the
context in which they occur.
247
An interpretation shall take all circumstances into account which prevailed at
time of treaty conclusion.
248
That does not exempt it from considering present-day
state of scientific knowledge, as far as this is available to the respective court.
249
Above all, the interpretation must be based on the text of the treaty.
250
The principle
of effectiveness gives effect to provisions relating to the party
...
s intentions and rules
of international law.
251
A combination of a broader purpose approach and the
principle of effectiveness have been used in the case of constituting international
organization treaties.
252
'
3.5.1.2.3
Interpretation According to the Vienna Convention on the Law
of Treaties
In most cases, interpretation of international treaties is done according to the 1980
VCLT. There are also several ICSID tribunals using the VCLT for interpretation.
253
This does not create a problem as
(
...
) every person or organ concerned with a
'
is competent to interpret the respective treaty based on the VCLT.
254
The
VCLT was a product of the ILC.
255
Art. 1 to 4 of the VCLT define the scope of the
treaty
'
246
Shaw (
2008
), 933.
247
ICJ [1950] Competence of the General Assembly for the Admission of a State to the United
Nations, 4 (8).
248
'
(
...
) the Court must seek to ascertain the intention of the parties at the time
'
, in: ICJ [2002]
Land and Maritime Boundary between Cameroon and Nigeria—Judgement, 303 (346).
249
ICJ [1999] Case concerning Kasikili/Sedudu Island—Judgment, 1045 (1060).
250
ICJ [1994] The Territorial Dispute—Judgment, 6 (22); Binder (
2009b
), 187 (192).
251
Principle of effectiveness is an important role of international law, in: ICJ [1998] Fisheries
Jurisdiction—Judgement, 432 (455) para 52; In accordance with intention of the parties, in: ICJ
[1949] The Corfu Channel—Judgment, 4 (24); In accordance with international law, in: ICJ [1998]
Fisheries Jurisdiction—Judgement, 432 (455) para 54.
252
The main idea is to gain flexibility, which is essential to accomplish the stated aims of that
organization, in: Shaw (
2008
), 936-937; Concerning programmatic approach, in: Shaw (
2008
),
937.
253
ICSID [2005] ARB/01/11—Award, 61 para 50; ICSID [2004] ARB/02/8—Decision, 30 para
80.
254
D
orr and Schmalenbach (
2012
), Art. 31 para 18.
255
Aust (
2007
), 6-7.
€
orr in D
€
