Insights From Article 31(3)(c) Of The Vienna Convention In Public International Law Essay.

Article 31 of the Vienna Convention on the Law of Treaties (VCLT) of 1969 provides the ways in which a treaty shall be interpreted. The interpretation of treaties is one of the most controversial issues in international law because the implementation of a treaty can have a serious impact on, and implications for, the national interests of parties to the treaty. How effective and relevant are the provisions of the VCLT after 50 years of its existence?

Vienna Convention on the Law of Treaties of 1969, available at: http://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf

Fitzmaurice, E. Olufemi; P. Merkouris, “Treaty Interpretation and the Vienna Convention on the Law of Treaties : 30 Years on”, eBook Collection 2010; Vol. 00001.

Antonios, Tzanakopoulos, “On the Interpretation of Treaties: The Modern International Law as Expressed in the 1969 Vienna Convention”, 2009 German Yearbook of International Law, Vol. 52, pp. 721-724

Background on the Law of Treaties

Public international law has not been inactive in the last few decades.  There are many developments, specifically in the law of treaties, in which improved concern in Article 31(3) (c) of the Vienna Convention of the Law of Treaties (VCLT) OF 1969 of May 29, 1969 has increased.  Any investigation of the VCLT should start by recalling the apparent truism that the convention is never used in isolation; however, the Convention is always in combination with another treaty where it can provide residual rules. The application of the VCLT will normally bring into play some elements of what may be called for expediency the relativity of treaties. The relativity can be one of substance such when, particularly Article 31(3) (c) of VLCT concerns the obligations along with rights of parties to diverse treaties that relates to similar subject matter or there can be other relativities, governed by the legal plus logic standards. The propagation of international courts along with tribunals integrated with the growth of the fields, as well as solidity of guideline of the international law has led to the increase in the deliberation on the matter of disintegration of international law. In this situation, as well as as a probable reaction to this anxiety of disintegration, the subject of interpretation with particular position to Article 31(3) (c) of the Vienna Convention has elicited a great debate.

The sudden interest concerning the provisions of the article may be connected to the build up of several elements. Thus, the current expansion of the international tribunals along with courts resulted in a growing fear of fragmentation was evident during the 6^th Committee discussion that was delegated to the International Law Commission (ILC) concerning fragmentation at both the institutional and a normative level. The paper will examine the effectiveness and the relevancy of the provisions of the VCLT, especially Article 31 on interpretation of treaties after 50 years of its existence.

During the 1950s, the international community made the decision to focus its attention to the concern of interpretation along with call upon all its accessible assets to deal with complexity intrinsic to it. The International Law Commission discussed  regardless of whether interpretation must consider a broader collection of values along with principles of the international legal orders plus not be only limited to the minute, as well as hazardously indistinct class of universal principles. Article 31 of the Convention is believed to embody the code of “systemic integration”, where it is thought to have come to be called “master key” the community of international law. Therefore, taking into consideration the rejuvenated comprehending of the article, this stipulation can be the technique for evolution on the construal by allusion to resources without powerful link with specific treaty.

The Emergence of Concern on Fragmentation

Obviously, the majority of tax academicians taken the effect of the Article 31 to be restricted in line with the discussion of the status of OECD commentary since the discussion occurred prior to the publication of the “Fragmentation Report” (2006) along with “Oil Platforms”.  The primary concept of the Fragmentation Report was that the different treaties are not applied along with interpreted in a vacuum. They believed that a treaty contain a normative setting that cannot be disregarded, but should be taken into consideration. Certainly, all international law subsists in a universal association with other regulation plus thus, no treaty relevance may happen devoid of putting the appropriate tool in its normative setting. For this reason, the instrument should normally be interpreted besides used in the background of its normative setting.

There is no legal text drafted by human being may perhaps be ideal in a manner, which it never give rise to any uncertainty to its capacity or real implication. The legal text both in the international and on the nationwide scale requires to be interpreted by the individuals. Interpretation is the procedure that entails creating the actual implication of a specific treaty.  The Vienna Convention regulations on interpretation reflect an endeavour to designate the aspects to be considered during that procedure plus to evaluate their comparative influence on it, other than to explain, let only recommend, the practice of interpretation on itself. Thus, Article 31(3) (c) established the universal law of interpretation by formulating generally accepted standards on the aspects along with the means of agreement interpretation. These standards are mainly accrued from international legal along with arbitral process, since it had urbanized from the end of 19^th-century in addition to that they were embraced by the International Law Commission as a practical settlement evading to follow one specific principle of agreement of interpretation. In addition, the issue of fragmentation has been a limiting reason in the interpretation of varied treaties under Article 31(3) (c). This article beside the doctrine of systemic incorporation stipulates the doctrine of systemic integration, which is the procedure in which global responsibilities are interpreted based on their normative setting. The article along with its customary comparable, that is, the standard of systemic integration provides the international judge with an alternative of using the principle of systemic interpretation. Thus, this implies that an interpretation, which considers the system where the rule being interpreted functions.

Despite the article being pro-international order orientation on legal issues, this strategy discloses deep awareness of self. Hence, other than employing the adjoining concept of “systematic integration” that is a common method in municipal rule; the international law commission baptizes this instrument of interpretation as a systematic integration that has two inferences. Further to meaning that extraordinary international law is, through ways of explanation, harmonically incorporated in the universal coordination, it too recommends that, linked to a practice of harmonious incorporation, the coordination of international rule is emerging to be firm, complete, and uniform. Therefore, the decentralized aspect of the international law structure, its lack of impartiality, as well as the supremacy of absolute bilateralism makes it a system that is undeveloped and often ineffective. Accordingly, the teleology of article will not be restricted to the plain protection of the system’s veracity; where article 31(3) (c) must as well make an affirmative input to its additional integration. This implies that the concept of “systemic integration” is not stationary as it demands for advancement.  The article was primarily designed to function as a way to promote the inter-temporal renewal of treaty stipulations emerges as no surprise. Through omitting the Fitzmaurician doctrine of modernity, the ultimate edition of the Convention succeeded in abandoning the temporal element. The final decisions was to transmit this component of interpretation to subsection three of the article as being a component that is extrinsic both to the text in addition to to the “perspective”. Inter-temporarily is indivisibly connected to flexible or evolutive technique of interpretation that demands for the interpretation of a value in line with any development, which happened in the court’s relevant legal organization due to the ratification of the value.

Effectiveness and Relevancy of Article 31 of the Vienna Convention

Whilst absolutely providing this alternative, Article 31(3) (c) of the treaties does so in wider inter-temporal context. For this reason, the interpretation of the agreement would not be unaltered through the succeeding advancement of law where should be interpreted plus employed in the context of the whole lawful organization dominant at the period of interpretation of the treaty. This implies that the treaty is dynamic and keeps on changing, as well as is free to acclimatize to the budding values of international law. This implies that since the 50 years that the VCLT has been operational, it has undergone changes in interpreting treaties and that Article 31 should be modified to meet the changing dynamics of the international law. However, to be fair to International Law Commission, one should acknowledge that its statement that actually demands for a renowned (active technique of interpretation) through the novel name of systemic interpretation method, which renders it a special orientation to inter-temporal element of the article. Nonetheless, the ILC made the decision to investigate the inter-temporality matter as a “unique issue” of systemic integration. Thus, this demonstrates that there is growing vitality of the international law system towards profound integration as a completely universal process.

Many academicians in the area of public international law concur that any appropriate laws of international must comprise rules originating from any structural official foundation of public international law, like international treaty, the rule of traditional international regulation or a universal doctrine of the international law.  Thus, article refers to binding regulations of international law that were long-established through the ICJ in the case of Oil Platforms. In addition, during the case of “Criminal Matters” of 2008, the International Court of Justice reflected on that the 1977 Treaty of Friendship and Cooperation can bear on responsibilities of another given agreement operational amid similar parties in question. Nonetheless, as the direction established in the OECD Commentary is a soft rule, which is thought-eliciting query emerges: is it feasible that the Article 31(3) (c) refers to non-binding origins, which constitute the normative setting of the treaty?

Furthermore, whether or not non-binding resources might legally influence under the provisions of Article 31(3) (c) OF Vienna Convention in the explanation of agreements is developed by Bruno Simma , an ex- International Court of Justice judge. Simma and Kill (2009) believe that the article does not employ the term “in force”; however, it applies that term “applicable” in line with the “rules” at hand, the element of flexibility is permitted in the interpretation of the article. While the term of “binding” avails a definite legal content, the term of “applicability” does offer a lawful content. Certainly, the article must not be interpreted too thinly plus possibly should comprise non-binding rules.

Article 31(3)(c) and Systemic Integration

On the other side, Villinger (2009) maintains that the concept “applicable” does not consider doubt: non-binding laws cannot be depended on. Nonetheless, Simma and Kill (2009) acknowledge that these authors did not deal with the concern of “applicability”. These authors think about that when textually analyzed, the concept “applicable” permits additional flexibility as compared to “in force” or “binding” could. Indisputably, all these authors have significantly addressed the prospective importance of the expression. In addition, the resolutions of the European Court of Human Rights (ECtHR) as well as back up the concepts championed by Simma and Kill (2009). The resolutions by ECtHR demonstrate that the approach adopted by the authors is not only theoretical; however, as well utilized in practice. This implies that the precedence established by ECtHR is commendable in the use of article while describing the non-binding norms that are external to a specific treaty.

Certainly, the ECtHR applied Article 31(3) (c) towards referring to both binding and non-binding normative environments of treaties. As a result, the ECtHR is the most reliable application of the article in the non-binding materials, especially in the case of Demir and Baykara vs. Turkey (2008). Consequently, this particular case was about a civil service labour trade union, which had got into a collective accord with Turkish metropolis.  The collective contract was violated by the metropolis and pronounced obsolete by the courts in Turkey. The labour union members protested to the European Court of Human Rights that this amounted to the breach of article 11on freedom of assembly and association. The ECtHR took into consideration this claim and maintained that on the stipulations of the article, it was obligated to consider other applicable rules along with doctrines of international law. Therefore, to make concrete verdict, ECtHR depended on soft material of the International Labour Organization (ILO) that has no institutional linkage with ECtHR; European Union (EU) recommendations, the European Social Charter (ESC) that is not ratified by Turkey; along with the interpretations linked to this agreement by the Charter’s Committee of Independent Experts.  These international organizations were non-binding in terms of norms. The above case is justification to the non-binding normative setting of the treaty as provided in the Article 31(3) (c). This acknowledgment has too emerged external of the case law of the European Court of Human Rights, as well as the International Court of Justice. Primary themes to this recognition entail the amalgamation plus the synchronization of the international law systems, where these subjects are essential to the evasion of double taxation.

Interpretation of Treaties and Inter-Temporal Renewal

Nonetheless, the proof from the case law of European Court of Human Rights may, possibly, not be straight extrapolated to the interpretation of law agreements concerning taxes. That the ECtHR employed the article does not normally imply that this specific article may be depended on under accords to interpret these treaties in line with non-binding norms. Thus, the wide potential linked by the ECtHR to the article is not considered as something, which is applicable routinely to agreements in general.  The major assertion in this case is that the ECtHR has the nature of a constitution that provides impact to moral principles that need flexible approach to the interpretation of a treaty to protect them under different situations. Subsequently, the ECtHR provides an opportunity to a more extensive strategy to the interpretation of treaty than it would be feasible under treaties, which are reciprocal in nature.

Conclusions

The discussion above validates the fact that the Article 31(3) (c) of VCLT is still relevant, as well as effective in interpretation of treaties five decades down the line. This evident in the case of binding and non-binding normative environments where the article is still effective as it is in the case law of ECtHR. When the background of the Article 31 is taken into consideration (that specifically entails the Fragmentation Report 2006, the case of “Oil Platforms” , as well as the case law concerning the European Court of Human Rights), this seems reasonable to offer an interpretive claim on the foundation of this specific article to validate remedy to non-binding normative setting of a particular agreement. Nonetheless, it is important to consider that the claims subsist regarding the impact of the proof of the ECtHR’s wide use of the articles functions only under treaties that cover human rights. In addition, the article of the Convention has resulted in challenges on norms that are introduced in interpretation, which are unambiguously approved by the concerned parties. In line with these objections, the advancement of issues that underlies the article can be to elucidate the working of the article in the prospect. Finally, it appears that the contemporary comprehension of Article 31(3) (c) is completely capable of opening doors for different commentaries, including OECD Commentaries’ novel habitat in the sphere of international issues on taxes.

Abi-Saab, G. “The Appellate Body and Treaty Interpretation”, in The WTO at Ten: The Contribution of the Dispute Settlement System, Giorgio Sacerdoti, Alan Yanovich and Jan Bohanes (eds.) (Cambridge: CUP, 2006), 453.

Non-Binding Sources and Applicability under Article 31(3)(c)

Aust, A. Modern Treaty Law and Practice (Cambridge: CUP, 2008, 2^nd edition).

Brölmann, C. “Limits of the Treaty Paradigm”, in Interrogating the Treaty: Essays in the Contemporary Law of Treaties, Malgosia Fitzmaurice and Matthew Craven (eds.) (Nijmegen: Wolf Legal Publishers, 2005), 29.

Carlos M. V. “Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties”, 122 Harv. L. Rev. 599, 677–80 (2008).

Engelen, F. A. Interpretation of Tax Treaties under International Law. A Study of Articles 31, 32 and 33 of Vienna Convention on the Law of Treaties and Their Application to Tax Treaties (Amsterdam: International Bureau of Fiscal Documentation, 2004) .

French, D. “Treaty Interpretation and the Incorporation of Extraneous Legal Rules”, 55 Intl. & Com. L. Quart. 2, p. 302 (2006).

Gardiner, R. Treaty Interpretation (OUP 2008), p. 265.

Guzman, A.T. “Saving Customary International Law”, 27 Mich. J. Int’l L. 115, 124–28, (2005).

Jonas, D.S. & Saunders, T.N. “The Object and Purpose of a Treaty: Three Interpretive Methods”, 43,Vanderbilt Journal of Transnational Law, 3. P. 565-609 (2010).

Koskenniemi, M. “The Fate of Public International Law: Between Technique and Politics”, 70 Mod. L. Rev. 1 (2007).

McLachlan, C. “The Principle of Systemic Integration and Article 31 (3)(c) of the Vienna Convention”, 54 Intl. & Com. L. Quart. 2 (2005).

Merkouris, P. Article 31(3)(c) of the VCLT and the Principle of Systemic Integration. (QMUL 2010).

Orakhelashvili, A. The Interpretation of Acts and Rules in Public International Law p. 366 (OUP Press 2008).

Rietiker, D. “The Principle of “Effectiveness”in the Recent Jurisprudence of the European Court of Human Rights: Its Different Dimensions and Its Consistency with Public International Law No Need for the Concept of Treaty Sui Generis”, 79 Nordic J. Intl. L. 2, pp. 271-275 (2010). UK: ECtHR, 21 Nov. 2001, Al-Adsani v. United Kingdom, Judgement No. 35763/97. Rosentreter, D. Article 31(3)(C) of the Vienna Convention on the Law of Treaties and the Principle of Systemic Integration in International Investment Law and Arbitration. (Baden-Baden: Nomos, 2015).

Samson, M. “High Hopes, Scant Resources: A Word of Scepticism about the Anti-Fragmentation Function of Article 31(3)(c) of the Vienna Convention on the Law of Treaties”, 24 Leiden J. Intl L. 3 (2011).

Simma, B. & Kill, T.  Harmonizing Investment Protection and International Human Rights: First Steps Towards a Methodology? in International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer, pp. 697-698 (C. Binder et al. eds., OUP 2009).

Smith, C.E. The Rhetoric of Justification, in The Rhetoric of Sincerity: Cultural Memory in the Present (E.T. Alphen, M.G. van Bal & C.E. Smith eds., Stanford U. Press 2009).

Tzevelekos, V.P. “The Use of Article 31(3)(C) of the VCLT in the Case Law of the ECtHR: An Effective Anti-Fragmentation Tool or a Selective Loophole for the Reinforcement of Human Rights Teleology?”, 31 Mich. J. Int'l L. 621 (2010).

Van Brunschot, F.The Judiciary and the OECD Model Tax Convention and its Commentaries, 59 Bull. Intl. Fisc. Doc. 1 (2005).  Linderfalk, U. On the Interpretation of Treaties: the Modern International Law as Expressed in the 1969 Vienna Convention on the Law of Treaties p. 262. (Springer 2007).

Villiger, M.E. Commentary on the 1969 Vienna Convention on the Law of Treaties, p. 433 (Nijhoff 2009).

Vogel, K. “The Influence of the OECD Commentaries on Treaty Interpretation”, 54 Bull. Intl. Fisc. Doc. 12 (2000), Journals IBFD.

Wattel, J.  & Marres, O.C.R. “The Legal Status of the OECD Commentary and Static or Ambulatory Interpretation of Tax Treaties”, 43 Eur. Taxn. 7, sec. 2.4.5. (2003), Journals IBFD.