Environmental Engineering Reference
In-Depth Information
VCLT. Art. 1 of the VCLT stipulates that the convention applies on written treaties
between states. Then, Art. 3 of the VCLT regulates that the Convention only applies
to treaties of states, excluding other subjects of international law. Art. 3(b) of the
VCLT expressively mentions that if the VCLT does not apply on a contract, this
does not exclude other obligations under international law (e.g. customary interna-
tional law). Finally, Art. 4 of the VCLT mentions that the Convention only applies
to treaties which entered into force after the VCLT.
Within the VCLT, section 3 deals with interpretation of treaties; this encom-
passes Art. 31-33 of the Convention.
256
Art. 31 of the VCLT is the general rule of
interpretation. Its main idea is that the contractual text correctly reflects the contract
party
s intentions and thus an objective interpretation is sufficient.
257
According to
Art. 31(1) of the VCLT, interpretation
'
shall result in good faith and according to
'
the ordinary meaning
and hence pursuant to the Convention
s
object and purpose.
'
Ordinary meaning means that the interpretation must be according a linguistic and
grammatical analysis of the treaty based on what is
'
'
'
(
...
) regular, normal or
'
.
258
The word
customary
expresses that preamble, annexes and all agree-
ments or instruments used by the states in connection with the conclusion of the
treaty are relevant, pursuant to Art. 31(2)(a) and (b). This also means that the
context
'
'
'
)
systematic structure of a treaty is thus of equal importance to the ordinary linguistic
meaning (
(
...
'
.
259
The criterion “objective and purpose” introduces a
...
)
teleological
'
'
or functional element
into
the general rule of Art. 31(1) of the VCLT.
260
As some treaties do not state their
objective or purpose clearly, it can be difficult to identify these features, but the
limit of interpretation is set by the text of the treaty.
261
During the whole process the
interpretation must be “in good faith”, as this is a
and therewith includes
the principle of effectiveness
'
'
'
(
...
) fundamental requirement of
'
.
262
Paragraph 3 goes on, stipulating that subsequent agreements (a), subsequent
state practice (b) and all rules of international law (c) shall be taken into account
together with the context. These “tools of interpretation” have the same value as the
tools mentioned in Art. 31(2) VCLT.
263
Subsequent agreements is comparable to
agreements mentioned in Art. 31(2) VCLT.
264
Very important is the interpretation
reasonableness (
...
)
'
256
Some differ between the interpretation of contractual agreements and contracts establishing
law, whereby the subjective will of the party is more relevant in the case of contractual agree-
ments. The VCLT however does not expressively mention the will of party as decisive, in: Matz
(
2005
), 282-283. In the case of the G/M-BIT, this does not matter, because the BIT is a contract
establishing a legal framework and thus the will of the party can be found in the contractual text.
257
Herdegen (
2010
),
§
15 para 28; Matz (
2005
), 288-289.
258
Dorr in Dorr and Schmalenbach (
2012
), Art. 31 para 41.
259
D
€
orr in D
€
orr and Schmalenbach (
2012
), Art. 31 para 44.
260
D
€
orr in D
€
orr and Schmalenbach (
2012
), Art. 31 para 53.
261
D
€
orr in D
€
orr and Schmalenbach (
2012
), Art. 31 paras 56 and 58.
262
D
€
orr in D
€
orr and Schmalenbach (
2012
), Art. 31 paras 60-61.
263
D
€
orr in D
€
orr and Schmalenbach (
2012
), Art. 31 para 71.
264
D
€
orr in D
€
orr and Schmalenbach (
2012
), Art. 31 para 72.
