Interdisciplinary Perspectives on International Law and International Relations The State of the Art
Book contents
- Frontmatter
- Contents
- Contributors
- Acknowledgments
- Part I Introduction: Setting the Stage
- Part II Theorizing International Law
- Part III Making International Law
- Part IV The Interpretation and Application of International Law
- 14 The Multiple Roles of International Courts and Tribunals
- 15 The Design of Dispute Settlement Procedures in International Agreements
- 16 Whose Agents? The Interpretation of International Law in National Courts
- 17 International Judicial Independence
- 18 The Politics of Treaty Interpretation
- Part V Enforcement, Compliance, and Effectiveness
- Conclusions
- Index
- References
18 - The Politics of Treaty Interpretation
Variations and Explanations across International Tribunals
Published online by Cambridge University Press: 05 January 2013
Book contents
- Frontmatter
- Contents
- Contributors
- Acknowledgments
- Part I Introduction: Setting the Stage
- Part II Theorizing International Law
- Part III Making International Law
- Part IV The Interpretation and Application of International Law
- 14 The Multiple Roles of International Courts and Tribunals
- 15 The Design of Dispute Settlement Procedures in International Agreements
- 16 Whose Agents? The Interpretation of International Law in National Courts
- 17 International Judicial Independence
- 18 The Politics of Treaty Interpretation
- Part V Enforcement, Compliance, and Effectiveness
- Conclusions
- Index
- References
Summary
International tribunals rely on interpretation of legal texts as a crucial tool in adjudication. What is puzzling is the wide variation we observe in treaty interpretation by international tribunals across policy areas and over time. The international relations (IR) literature has largely overlooked the factors that explain the extent and scope of treaty interpretation. Although there is an extensive normative literature in international law (IL) as to the right way to interpret, empirical work still lacks mid-range theories to account for the observed variance of behavior across international tribunals. This chapter tries to fill this gap by providing a conceptual toolkit inspired by IL and IR theories to approach the various types of interpretation (interpretation choices) and underlying explanations (demand-side interpretation space and supply-side interpretation incentives).
In IL scholarship, attention has focused on the normative question of how treaties should be interpreted, especially with reference to the Vienna Convention on the Law of Treaties (VCLT) referring, in turn, to text, context, object and purpose, and preparatory works of a treaty (Gardiner 2008; Van Damme 2009). These Vienna Convention rules apply, in principle, to all international tribunals, irrespective of their institutional setup, subject matter, or geographical scope. Divergence between international tribunals in the practical application of these rules of treaty interpretation has been pointed out (Weiler 2010). Yet, categorizing where exactly international tribunals have diverged in their approach and, especially, thinking about what factors might explain these differences, has received little or no attention. Instead, divergence has been labeled as an incorrect application of the Vienna Convention rules or proof that these rules are outdated or should not fully apply to a particular tribunal (Klabbers 2010: 33). This chapter leaves the normative issue aside and focuses on the descriptive and conceptual aspects: what is it that international tribunals actually do, and how could this behavior be explained, first, within the same tribunal operating over time and, second, across tribunals operating in different contexts or regimes?
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- Interdisciplinary Perspectives on International Law and International RelationsThe State of the Art, pp. 445 - 474Publisher: Cambridge University PressPrint publication year: 2012
References
, , , , and (2000). “The Concept of Legalization,” International Organization, Vol. 54, No. 3, pp. 401–19.CrossRefGoogle Scholar
(2010). “The Appellate Body and Treaty Interpretation,” in , , and (eds.), Treaty Interpretation and the Vienna Convention on the Law of Treaties: 30 Years on (Leiden: Martinus Nijhoff), pp. 99–109.Google Scholar
(1999). “The Concept of International Law,” European Journal of International Law, Vol. 10, No. 1, pp. 31–50.CrossRefGoogle Scholar
(2008a). “Agents or Trustees? International Courts in Their Political Context,” European Journal of International Relations, Vol. 14, No. 1, pp. 33–63.CrossRefGoogle Scholar
(2008b). “Delegating to International Courts: Self-Binding vs. Other-Binding Delegation,” Law and Contemporary Problems, Vol. 71, No. 1, pp. 37–76.Google Scholar
, and (2010). “Nature or Nurture? Judicial Lawmaking in the European Court of Justice and the Andean Tribunal of Justice,” International Organization, Vol. 64, No. 4, pp. 563–92.CrossRefGoogle Scholar
(2006). The European Union and Its Court of Justice, 2nd ed. (Oxford: Oxford University Press).Google Scholar
, , , and (1991). “On Method and Methodology,” in and (eds.), Interpreting Statutes: A Comparative Study (Brookfield, VT: Dartmouth Press), pp. 9–28.Google Scholar
(2010). “Textual Interpretation and (International) Law Reading: The Myth of (In)determinacy and the Genealogy of Meaning,” in , , and (eds.), Making Transnational Law Work in the Global Economy: Essays in Honour of Detlev Vagts (Cambridge: Cambridge University Press), pp. 34–55.CrossRefGoogle Scholar
(2007). “Overlapping Institutions, Forum Shopping, and Dispute Settlement in International Trade,” International Organization, Vol. 61, No. 4, pp. 735–61.CrossRefGoogle Scholar
(2006). “Towards a Political Theory of International Courts and Tribunals,” Berkeley Journal of International Law, Vol. 24, No. 2, pp. 401–22.Google Scholar
(2010). “Disappearance and New Sightings of Restrictive Interpretation(s),” European Journal of International Law, Vol. 21, No. 3, pp. 681–700.CrossRefGoogle Scholar
(2009). “The Role of Precedent in the WTO-New Horizons?,” Working Paper No. 2009–12 (Maastricht: Maastricht University Faculty of Law, Institute for Globalisation and International Regulation).
(2011). “WTO Adjudication as a Tool for Conflict Management,” Paper presented at the 4th Annual Conference on the Political Economy of International Organizations, Zurich.
, and (2008). “Non-discrimination in Trade and Investment Treaties: Worlds Apart or Two Sides of the Same Coin?,” American Journal of International Law, Vol. 102, No. 1, pp. 48–89.Google Scholar
(2006). “The Viscosity of Global Governance: When Is Forum-Shopping Expensive?,” Paper presented at the Annual Meeting of the American Political Science Association, Philadelphia, PA.
(2002). “Six Years on the Bench of the ‘World Trade Court’: Some Personal Experiences as Member of the Appellate Body of the World Trade Organization,” Journal of World Trade, Vol. 36, No. 4, pp. 605–39.CrossRefGoogle Scholar
, and (forthcoming). “Agents, Trustees, and International Courts: Nomination and Appointment of Judicial Candidates in the WTO Appellate Body,” European Journal of International Relations.
(1929). “Interpretation of Treaties,” American Journal of International Law, Vol. 23, No. 4, pp. 745–52.CrossRefGoogle Scholar
(2008). “The Legal Reasoning of ICSID Tribunals – an Empirical Analysis,” European Journal of International Law, Vol. 19, No. 2, pp. 301–64.CrossRefGoogle Scholar
(2002). “Judicializing Politics, Politicizing Law,” Law and Contemporary Problems, Vol. 65, No. 3, pp. 41–68.CrossRefGoogle Scholar
(2006). “Judicial Institutions,” in , , and (eds.), The Oxford Handbook of Political Institutions (Oxford: Oxford University Press), pp. 514–34.Google Scholar
(2005). “International Judicial Lawmaking,” in , , and (eds.), International Conflict Resolution (Ochsenfurt-Hohestadt: Mohr Siebeck), pp. 155–82.Google Scholar
(1965). “The World Court and the Interpretation of Constitutive Treaties: Some Observations on the Development of an International Constitutional Law,” American Journal of International Law, Vol. 59, No. 4, pp. 794–833.CrossRefGoogle Scholar
, and (2005). “Accountability and Abuses of Power in World Politics,” American Political Science Review, Vol. 99, No. 1, pp. 29–43.CrossRefGoogle Scholar
(2010). “A Call to Arms: Fundamental Dilemmas Confronting the Interpretation of Crimes in the Rome Statute of the International Criminal Court,” European Journal of International Law, Vol. 21, No. 3, pp. 543–83.CrossRefGoogle Scholar
(2002). “Overlegalizing Human Rights: International Relations Theory and the Commonwealth Caribbean Backlash against Human Rights Regimes,” Columbia Law Review, Vol. 102, No. 7, pp. 1832–911.CrossRefGoogle Scholar
, and (2005). “Why States Create International Tribunals: A Response to Professors Posner and Yoo,” California Law Review, Vol. 93, No. 3, pp. 899–956.Google Scholar
(2009). “Investment Tribunals and Human Rights: Divergent Paths,” in , , and (eds.), Human Rights in International Investment Law and Arbitration (Oxford: Oxford University Press), pp. 97–114.CrossRefGoogle Scholar
(2000). “Adjudicative Legitimacy and Treaty Interpretation in International Trade Law: The Early Years of the WTO,” in (ed.), The EU, the WTO and the NAFTA: Towards a Common Law of International Trade? (Oxford: Oxford University Press), pp. 35–70.Google Scholar
(2011). “Precedents: Lawmaking through International Adjudication,” German Law Journal, Vol. 12, No. 5, pp. 1005–32.Google Scholar
, and (1998). Activists beyond Borders: Advocacy Networks in International Politics (Ithaca, NY: Cornell University Press).Google Scholar
(2010). “Virtuous Interpretation,” in , , and (eds.), Treaty Interpretation and the Vienna Convention on the Law of Treaties: 30 Years on (Leiden: Martinus Nijhoff), pp. 17–37.Google Scholar
(2007). “If Only Half of International Agreements Have Dispute Resolution Provisions, Which Half Needs Explaining,”? Journal of Legal Studies, Vol. 36, No. 1, pp. 189–212.CrossRefGoogle Scholar
, and (2013). “The Design of Dispute Settlement Procedures in International Agreements,” in and (eds.), Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (New York: Cambridge University Press), pp. 371–93.Google Scholar
(1994). “The Law of GATT as a Special Field of International Law: Ignorance, Further Refinement or Self-Contained System of International Law?,” Netherlands Yearbook of International Law, Vol. 25, No. 1, pp. 227–57.Google Scholar
, and (2005). “WTO Law in the European Court of Justice,” Common Market Law Review, Vol. 42, No. 5, pp. 1313–55.Google Scholar
(2009). “Interpretation in International Investment Arbitration – Through the Looking Glass,” in and (eds.), A Liber Amicorum: Thomas Wälde – Law beyond Conventional Thought (London: Cameron May), pp. 151–64.Google Scholar
(2004). Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy (Oxford: Oxford University Press).Google Scholar
(1949). “Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties,” British Yearbook of International Law, Vol. 26, pp. 48–85.Google Scholar
(1950). “De l’Interprétation des Traités: Rapport,” Annuaire de l’Institut du Droit International, Vol. 43, No. 2, pp. 366–460.Google Scholar
(2007). “Interpretation and the Court of Justice: A Basis for Comparative Reflection,” The International Lawyer, Vol. 41, No. 4, pp. 1011–32.Google Scholar
(2010). “Strasbourg's Interpretive Ethic: Lessons for the International Lawyer,” European Journal of International Law, Vol. 21, No. 3, pp. 509–41.CrossRefGoogle Scholar
(2011). “Doha Round: Keep Moving Forward or Fall Down,” in and (eds.), Why World Leaders Must Resist the False Promise of Another Doha Delay (London: Centre for Economic Policy Research), pp. 47–52.Google Scholar
(2010). “Treaty Interpretation by the Inter-American Court of Human Rights: Expansionism at the Service of the Unity of International Law,” European Journal of International Law, Vol. 21, No. 3, pp. 585–604.CrossRefGoogle Scholar
, and (1998). “Revisiting the European Court of Justice,” International Organization, Vol. 52, No. 1, pp. 177–209.CrossRefGoogle Scholar
(1967). “The International Law Commission's Draft Articles upon Interpretation: Textuality Redivivus,” American Journal of International Law, Vol. 61, No. 4, pp. 992–1000.CrossRefGoogle Scholar
, , and (1967). The Interpretation of International Agreements and World Public Order: Principles of Content and Procedure (New Haven, CT: Yale University Press).Google Scholar
, and (2000). “The World Trade Constitution,” Harvard Law Review, Vol. 114, No. 2, pp. 511–605.CrossRefGoogle Scholar
(2009). “The ICJ and Evolutionary Treaty Interpretation,” Blog of the European Journal of International Law: EJIL: Talk!, 14 July, available at
, and (2003). “Delegation to International Organizations: Agency Theory and World Bank Environmental Reform,” International Organization, Vol. 57, No. 2, pp. 241–76.CrossRefGoogle Scholar
(2010). “Interpreting Constitutive Instruments of International Criminal Tribunals: Reflections on the Special Court for Sierra Leone,” in , , and (eds.), Treaty Interpretation and the Vienna Convention on the Law of Treaties: 30 Years on (Leiden: Martinus Nijhoff), pp. 333–55.Google Scholar
(2008). The Interpretation of Acts and Rules in Public International Law (Oxford: Oxford University Press).CrossRefGoogle Scholar
(2003). Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (Cambridge: Cambridge University Press).CrossRefGoogle Scholar
(2010). “Pulp Mills on the River Uruguay: The International Court of Justice Recognizes Environmental Impact Assessment as a Duty under International Law,” American Society of International Law Insight, Vol. 14, No. 9, available at .Google Scholar
, and (2005). “Judicial Independence in International Tribunals,” California Law Review, Vol. 93, No. 1, pp. 1–74.Google Scholar
(1986). On Law and Policy in the European Court of Justice: A Comparative Study in Judicial Policymaking (Dordrecht: Martinus Nijhoff).Google Scholar
(2010). “Power and Persuasion in Investment Treaty Interpretation: The Dual Role of States,” American Journal of International Law, Vol. 104, No. 2, pp. 179–225.CrossRefGoogle Scholar
(2007). “The Shift from the Consensual to the Compulsory Paradigm in International Adjudication: Elements for a Theory of Consent,” New York University Journal of International Law and Politics, Vol. 39, No. 4, pp. 791–872.Google Scholar
(2006). The Law and Practice of the International Court, 1920–2005: Procedure, Vol. III, 4th ed. (Leiden: Martinus Nijhoff).Google Scholar
(2003). “Interpreting the Statutes of the Ad Hoc Tribunals,” in et al. (eds.), Man's Inhumanity to Man: Essays on International Law in Honour of Antonio Cassese (The Hague: Kluwer Law International), pp. 847–88.Google Scholar
(2010). “Glamis Gold, Ltd. v. United States,” American Journal of International Law, Vol. 104, No. 2, pp. 253–59.Google Scholar
(2010). “Diversity and Harmonization of Treaty Interpretation in Investment Arbitration,” in , , and (eds.), Treaty Interpretation and the Vienna Convention on the Law of Treaties: 30 Years on (Leiden: Martinus Nijhoff), pp. 129–51.Google Scholar
, and (1993). The Supreme Court and the Attitudinal Model (New York: Cambridge University Press).Google Scholar
(2002). “The Success of Judicial Review and Democracy,” in and (eds.), On Law, Politics, and Judicialization (Oxford: Oxford University Press), pp. 149–83.CrossRefGoogle Scholar
(2004). “Judicial Lawmaking at the WTO: Discursive, Constitutional, and Political Constraints,” American Journal of International Law, Vol. 98, No. 2, pp. 247–75.CrossRefGoogle Scholar
(2010). “Is There a Text in This Court? The Purposive Method of Interpretation and the Ad Hoc Tribunals,” Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht, Vol. 70, No. 4, pp. 767–87.Google Scholar
(1998). “Interpretation of Treaties by the International Court of Justice following the Adoption of the 1969 Vienna Convention on the Law of Treaties,” in et al. (eds.), Liber Amicorum: Professor Ignaz Seidl-Hohenveldern: In Honour of His 80th Birthday (The Hague: Kluwer Law International), pp. 721–48.Google Scholar
(2009). Treaty Interpretation by the WTO Appellate Body (Oxford: Oxford University Press).CrossRefGoogle Scholar
(2007). “The Politics of International Judicial Appointments: Evidence from the European Court of Human Rights,” International Organization, Vol. 61, No. 4, pp. 669–701.CrossRefGoogle Scholar
(2008). “The Impartiality of International Judges: Evidence from the European Court of Human Rights,” American Political Science Review, Vol. 102, No. 4, pp. 417–33.CrossRefGoogle Scholar
(2013). “International Judicial Independence,” in and (eds.), Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (New York: Cambridge University Press), pp. 421–44.Google Scholar
(2001). “The Rule of Lawyers and the Ethos of Diplomats: Reflections on the Internal and External Legitimacy of WTO Dispute Settlement,” Journal of World Trade, Vol. 35, No. 2, pp. 191–207.Google Scholar
(2008). “Prolegomena to a Meso-theory of Treaty Interpretation at the Turn of the Century,” draft available at .
(2010). “The Interpretation of Treaties – a Re-examination, Preface,” European Journal of International Law, Vol. 21, No. 3, p. 507.CrossRefGoogle Scholar
Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), 2009 I.C.J. 213 (13 July)
Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), 2009 I.C.J. 213 (13 July)
(Costa Rica v. Nicaragua), 2009
(Germany v. United States of America), 1999
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