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Article 31(3)(C) of the VCLT and the Principle of Systemic Integration

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Article 31(3)(C) of the VCLT and the Principle of Systemic Integration Article 31(3)(c) of the VCLT and the Principle of Systemic Integration by Panagiotis Merkouris Thesis submitted for the degree of Ph.D. Queen Mary University of London School of Law January 2010 I, Panagiotis Merkouris, confirm that the work presented in this thesis is my own. Where information has been derived from other sources, I confirm that this has been indicated in the thesis. ii This study is dedicated to my loving family, without whose help none of this would have been possible iii ABSTRACT The proliferation of international courts and tribunals combined with the expansion of the areas and density of regulation of international law has given rise to a debate on the issue of fragmentation of international law. Within this context and as a possible response to this fear of fragmentation, the issue of interpretation with specific reference to Article 31(3)(c) of the Vienna Convention on the Law of Treaties has come to the forefront. The overarching aim of the present thesis entitled ‘Article 31(3)(c) of the VCLT and the Principle of Systemic Integration’ is to provide a comprehensive analysis of the content and the function of Article 31(3)(c) both as a conventional and as a customary rule ( i.e. as principle of systemic integration). To this end, the thesis adopts a two-pronged approach. In the first Part of this thesis the analysis is based on the text of the provision itself, both on its written and unwritten elements (intertemporal law considerations). This analysis demonstrates that a proper understanding of Article 31(3)(c) leads us to the adoption of the proximity criterion as the only appropriate in the application of Article 31(3)(c). Having concluded the textual analysis, the thesis then, in the second Part, considers Article 31(3)(c) from a different vantage point. It examines Article 31(3)(c) from the more general perspective of the system as a whole and analyses what the effects of more systemic considerations to the content of Article 31(3)(c) are. Within these parameters two issues arise: i) The principles of conflict resolution, which the thesis proves can be applied, in certain scenarios, in the interpretative process of Article 31(3)(c) and ii) more importantly the notion of interpretation of customary law . The relevant Chapter establishes that customary international law can be the object of interpretation and in such an interpretation Article 31(3)(c), as custom, plays a pivotal role. Through this approach, both from a textual and a systemic perspective, the thesis offers a new and complete understanding of Article 31(3)(c) in all its manifestations and spheres of application. iv PREFACE This work reflects the law as it stood, to the best of the author’s knowledge, on 25 January 2010. The discourse regarding the travaux préparatoires of the VCLT has appeared more extensively in ‘Debating the Ouroboros of International Law : the Drafting History of Article 31(3)(c)’, ICLR 9 (2007): 1-31; Similarly parts of the analysis on the CCFT v. US case will be appearing in ‘Canons of Treaty Interpretation: Selected Case Studies From the World Trade Organization and the American Free Trade Agreement’, in Issues of Treaty Interpretation and the Vienna Convention on the Law of Treaties , Malgosia Fitzmaurice, Olufemi Elias and Panos Merkouris (eds.) (Leiden: BRILL/Martinus Nijhoff, forthcoming 2010) v ACKNOWLEDGEMENTS I am heartily thankful to my supervisor, Professor Malgosia Fitzmaurice, whose encouragement, guidance and support from the initial to the final level enabled me to develop an understanding of the subject and complete this PhD. I would also like to thank IKY (Greek State Scholarship Foundation) for its financial support throughout all the years of this PhD. Needless to say that the views expressed in this thesis are the author’s alone. vi TABLE OF CONTENTS Abstract iv Preface v Acknowledgements vi Table of Contents vii Abbreviations xiv List of ICJ Judgments and Advisory Opinions cited and their Abbreviations xvii List of PCIJ Judgments and Advisory Opinions cited and their Abbreviations xxiii List of ECtHR, ECmHR and ECJ Judgments cited and their Abbreviations xxv List of WTO & GATT Panel and Appelate Body Reports cited and their Abbreviations xxviii List of Iran – United States Claims Tribunal Awards cited and their Abbreviations xxxi List of ICTY Judgments cited and their Abbreviations xxxiii List of Other Arbitral Awards and Domestic Case-Law cited and their Abbreviations xxxiv List of Collections of Treaties, Awards and Documents Cited, and their Abbreviations xl Prolegomena 1 vii Part I: Article 31(3)(c) and the Principle of Systemic Integration from a Normative Point of View Chapter I: The Elements of Article 31(3)(c) of the VCLT and the Principle of Systemic Integration 10 I. Introduction 11 II. Ordinary Meaning and Context of Article 31(3)(c) of the VCLT: An Article 31 – based Interpretation 12 A. ‘Rules of International Law’ 12 B. ‘Relevant Rules' 15 C. ‘Applicable Rules’ 16 D. ‘Parties’ 17 III. Preparatory Work of the VCLT and pre-ILC Documents as other Supplementary Means: An Article 32 – based Interpretation 20 A. The discussions within the Institut de Droit International 20 1. Article 31(3)(c): The First Stages of Identification 21 2. Shifting from Tentativeness to Acceptance 24 B. The Debate Continues within the ILC 27 1. From ‘Principles’ to ‘Rules’ 28 2. In dubio pro ambage 30 C. Sixth Committee and the Vienna Conference on the Law of 32 1. The Sixth Committee 32 2. Coming full Circle – The Vienna Conference on the Law of Treaties 34 D. Conclusions and Summary 36 IV. Jurisprudence (‘other Supplementary Means of Interpretation’) as ‘Determinative’ of the Content of Article 31(3)(c) of the VCLT: The ‘Proximity Criterion’ Revealed 36 A. Recent Jurisprudence Confirming or Determining Article 31(3)(c) 39 viii B. An Analysis of the pre-VCLT Jurisprudence on Interpreting by Reference to other rules of International Law – The Legal Genealogy of Article 31(3)(c) 39 1. Interpretation by Reference to other Treaties – An Interpretative Renvoi 41 2. Case-law Relating to Interpretative Renvoi 42 2.1. Cases where the Recourse to Anterior Treaties was Rejected 45 2.2. Interpretative Renvoi Vindicated in Case-Law: A Daedalus’ Maze 45 2.2.1 Application of Interpretative Renvoi not Accompanied by any Legal Justification 46 2.2.2. Pre-VCLT Jurisprudence Revealing various Forms of Proximity as Factors of Determing ‘Relevancy’ 56 2.2.3. Atypical Cases of Interpretative Renvoi 62 C. Interpretative Renvoi and Article 32 of the VCLT 65 D. Bridging a non-existent Gap: Interpretative Renvoi and Article 31(3)(c) 65 Diagram 1(a): Schematic Representation of the “Proximity Criterion” Thesis 68 Diagram 1(b): The Four Questions that are Asked in Determining ‘Proximity’ 69 Diagram 2(a): How the ‘Proximity Criterion’ Works 70 Diagram 2(b): How the ‘Proximity Criterion’ Works: The Warsaw Electricity Company Case 72 Diagram 3: Schematic Representation of the ‘Proximity Criterion’ Thesis Cross-Sectioned with the Schools of Thought on Interpretation 74 V. Conclusion 78 Chapter II: Article 31(3)(c) and Intertemporality 79 I. Introduction 79 II. Debating Intertemporality During the Travaux Préparatoires of the VCLT 81 A. Debate within the ILC 81 ix 1. Early Considerations 81 2. In dubio pro deletione 90 B. Final Comments in the 6th Committee and the Vienna Conference on the Law of Treaties 94 III. Intertemporal Law: Between Stability and Change 96 A. Intertemporality and the Notion of Retroactivity 99 1. Non-retroactivity as a Principle of International Law 99 2. Conflict between the Non-retroactive Principle and Max Huber’s Statement on Intertemporal Law 103 2.1. The Doctrinal Perspective 103 2.2. The Practical Perspective 106 B. Intertmporality through the Prism of the three Schools of Interpretation 108 1. Intention of Parties 110 2. Object and Purpose 114 3. Intertemporal Approach based Solely on the Text 116 4. Concluding Remarks on the Interrelationship between Intertemporality and the three Schools of Interpretation 117 IV. Conclusion 121 x Part II: Article 31(3)(c) and the Principle of Systemic Integration from a Systemic Point of View Chapter III: Principles of Conflict Resolution within the Interpretative Process of Article 31(3)(c) 123 I. Definition 126 II. Hierarchy – Jus Cogens 132 III. Limitations of Jus Cogens 137 IV. Conflict Clauses 139 V. Limitations 144 VI. Lex Posterior 150 VII. Limitations of the Lex Posterior Principle 154 VIII. Lex Specialis 163 IX. Limitations of the Lex Specialis Principle 168 X. The Relationship between the Lex Posterior and Lex Specialis Principles: Antogonism or Complementarity? 171 XI. Principles of Conflict Resolution within the Interpretative Process of Article 31(3)(c) 174 Diagram 4: Different Approach to Norm Interrelationship Examination 176 Diagram 5: Principles of Conflict Resolution as Different Manifestations of the Jus Aequum Rule 177 Diagram 6: Schematic Representation of the Jus Aequum Manifestations Cross-Sectioned with the Schools of Thought on Interpretation 178 Diagram 7: The Process of Article 31(3)(c) 180 Diagram 8: Diagram of the various Permutations during the Application of Article 31(3)(c) 182 Diagram 9: Process of Article 31(3)(c) from Start to Finish (from Uncertainty to Judicial Certainty) 183 XII. Conclusion 185 xi Chapter IV: Interpretation of International Customary Law by Reference to the Customary Law Equivalent of Article 31(3)(c) 186 I. Introduction 186 II. Is an Interpretation of Customary International Law Possible? 188 A. Identity, Identification and Pitfalls of International Customary Law 188 B. Is Interpretation Restricted only to Written Sources? 193 1. Arguments that only Written Sources can be Interpreted 193 2. Arguments that Interpretation Covers both Written and Unwritten Sources 195 3.
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