Environmental Engineering Reference
In-Depth Information
according to subsequent state practice as only this guarantees an authentic inter-
pretation.
265
Lastly relevant rules of international law introduce
the international
'
legal system as a whole
as a tool to interpret a treaty, although this is handled
restrictively by many courts and tribunals.
266
Nevertheless, Art. 31(3)(a) of the VCLT does not require that the used document
is an international contract or has any specific legal quality.
267
This illustrates that
the text of the treaty
'
...
) as it stands since the time of its conclusion is not all that
matters for an interpretation
lege artis
'
(
.
268
It is noteworthy that
'
(
...
) consensus, which exists at the time of interpretation, may in some cases even override
the original understanding of the text of the treaty, which prior to the subsequent develop-
ments may have appeared perfectly clear.
269
Art. 31(4) of the VCLT regulates that
a special meaning shall be given to a term
if it is established that the parties so intended.
'
Art. 31(4) of the VCLT is an
'
exception to Art.31(1) VCLT
) for cases where the parties have agreed, even
implicitly, to replace the ordinary meaning of a term contained in a treaty provision
by a special meaning
(
...
'
.
270
It must be clear that the burden of proof is very strict and
'
.
271
However
Art. 31(4) of the VCLT does not mention what kind of evidence may be used.
272
The three paragraphs of Art. 31 of the VCLT are not a legal hierarchy, but represent
the logical order of application.
273
Overall, Art. 31 of the VCLT encompasses four
elements, (1) recognition of good faith, (2) ordinary meaning rule, (3) consideration
of objective and intention, and (4) context.
Art. 32 of the VCLT lists supplementary means of interpretation, if the tools in
Art. 31 of the VCLT are unable to deliver a proper interpretation. Art. 32 of the
VCLT regulates that the preparatory work of the treaty and the circumstances of its
conclusion are supplementary tools. The preparatory work can be incomplete or
misleading, which supports the supplementary character as an interpretation
tool.
274
Finally, Art. 33 of the VCLT deals with the issue that a treaty has more
than one official language. According to Art. 33(1) of the VCLT, all official
languages are equally important for interpretation. In cases where a treaty has
several official languages, Art. 33 of the VCLT addresses this problem. In addition,
paragraph 3 stipulates the assumption that terms of the treaty always have the same
(
...
) lies on the party invoking the special meaning of the term (
...
)
'
'
265
Dorr in Dorr and Schmalenbach (
2012
), Art. 31 para 76.
266
Dorr in Dorr and Schmalenbach (
2012
), Art. 31 paras 89-104.
267
The parties should be bound by the contract, in: Herdegen (
2010
),
§
15 para 30; Matz (
2005
),
294.
268
Dorr in Dorr and Schmalenbach (
2012
), Art. 31 para 4.
269
D
€
orr in D
€
orr and Schmalenbach (
2012
), Art. 31 para 4.
270
D
€
orr in D
€
orr and Schmalenbach (
2012
), Art. 31 paras 5 and 105.
271
D
€
orr in D
€
orr and Schmalenbach (
2012
), Art. 31 para 106.
272
D
orr and Schmalenbach (
2012
), Art. 31 para 107.
273
Aust (
2007
), 234.
274
Aust (
2007
), 244-245; cf Matz (
2005
), 304.
€
orr in D
€
