Chapter 3 highlights several instances of State practice where the reciprocity paradigm continues to influence belligerent reprisals. Its bearing emerges from those formalizations of the mechanism that stress the purpose of restoring the balance in rights and obligations unduly disturbed by a breach of the laws of armed conflict. The chapter will first retrace this interest in several positions expressed by States before, during, and in the aftermath of the Geneva Diplomatic Conference that led to the adoption of the 1977 Additional Protocols to the 1949 Geneva Conventions. It will then focus on the provisions of military manuals, with a particular focus on US practice and the latest Department of Defense Law of War Manual. Finally, it will provide an extensive and, under many respects, unprecedented analysis of the Italian case-law on World War II atrocities: this judicial practice, which has been revived only recently, has brought to the fore several elements that are strongly associated with reciprocity. The chapter will thus highlight notable examples in which the reciprocity paradigm contributes to defining the purpose and function of belligerent reprisals.

In many, if not most cases, the ECtHR relies on its own precedents in interpreting the Convention, but some cases may present the Court with new and difficult questions of interpretation. To answer these, the Court relies on a number of specific principles and methods of interpretation. The Court is guided in its work by several core principles, such as effectiveness, evolutive interpretation and autonomous interpretatio, but these are still relatively abstract in nature and they may not suffice to answer a concrete question of interpretation. For that reason, the Court often also relies on the methods of interpretation as described in the provisions of the Vienna Convention on the Law of Treaties, such as textual interpretation, interpretation in light of the travaux préparatoires and internally harmonising interpretation. This chapter discusses the Court’s use of these three methods. In addition to these methods, the Court has opted for a particular refinement of one of the Vienna Convention’s methods, which is consensus or common ground interpretation. This method and the various sources for the Court’s finding of a consensus are also discussed in this chapter.

This chapter turns to the second step of interpretation, namely content-determination. This exercise can be narrated in two ways: first, by reference to the formal rules of interpretation set forth in the VCLT; second, in light of the assumptions, predispositions, and standards of acceptability shared by the judicial community. The juxtaposition of these accounts highlights the interplay between freedom and constraint in international treaty interpretation. What guides the gaze of the interpreter? Where are the boundaries of their discretion? On the one hand, VCLT rules are powerless before the ontological indeterminacy of legal norms, and have therefore little cash value when it comes to derive exact meaning. On the other hand, the patterned practices and background knowledge of the community impose powerful limitations on the interpreter’s discretion.

Chapter 4 first analyzes how Article 13 was dealt with during the drafting of the Convention. A central conclusion is that the drafting does not explain the Court’s timid development of Article 13 in early years and that it, rather, may provide support for a further development of Article 13 in the present. The chapter then describes how the number of cases concerning Article 13 has increased in tandem with the general rise in the Court’s case law and how, in more recent years, the Court actually considers whether Article 13 has been violated, in addition to substantive Articles. However, the Court rarely explains why this is necessary. This makes it difficult to distinguish between similar remedial requirements arising under both Article 13 and substantive Articles. However, as the chapter explains, this could be necessary in order to underline specific remedial purposes and to avoid undercommunicating remedial goals, most notably achieving sufficient redress, but, also, procederual requirements necessary in order to ahcieve redress. The chapter, also, provides a more detailed overview of how Article 13 has been dealt with in conjunction with substantive Articles.

The principle of joint responsibility is only halfway to solving the question of the international responsibility of the EU. That the EU and its Member States are independently responsible for their joint obligations does not necessarily mean that a breach will result in their joint and several responsibility. Chapter 4 accordingly addresses the exclusive responsibility of the EU and its Member States. This chapter explores the hypothesis suggested by the European Commission that authorities of the EU act as de facto organs of the Union when they implement EU law. For this purpose, this study delves into the travaux préparatoires of the ILC rules of responsibility to search for the concept of an organ and agent. It is suggested that while the ILC adopts a broad reading of these terms, international dispute-settlement practice does not support the European Commission’s claim that conduct of Member States’ organs is attributed to the EU when they carry out EU policies.

It examines an issue of treaty interpretation arising from a moment’s reflection on the dispute settlement mechanisms established in UNCLOS. Those mechanisms, with primarily the International Tribunal for the Law of the Sea and Arbitral Tribunals established under Annex VII of the Convention making waves in recent times, are designed solely to deal with disputes concerning the interpretation or application of the Convention. Any dispute that may eventually seize those mechanisms for solution will be primarily related to treaty interpretation. Besides, while hugely important, UNCLOS does not provide for all matters in the oceans. The chapter tries to investigate what should be done in interpreting the UNCLOS, if it is silent on matters indispensable for proper interpretation of some of its rules.