Public International Law: Interpretation of Treaties and Article 31(3) (c) of VCLT

This article discusses the effectiveness and relevancy of the provisions of the VCLT, especially Article 31 on interpretation of treaties after 50 years of its existence. It explores the operation of Article 31(3) (c) of Vienna Convention and the justification of Article 31(3) (c) of VCLT. The article also discusses the inter-temporality matter as a unique issue of systemic integration.

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Public International Law
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Course
Institution
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Public International Law 2
Public International Law
Introduction
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 rules1. The application of the VCLT will normally
bring into play some elements of what may be called for expediency the relativity of treaties2.
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 standards3. 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 debate4.
1 French, D. “Treaty Interpretation and the Incorporation of Extraneous Legal Rules”, 55 Intl. & Com. L.
Quart. 2, p. 302 (2006).
2
3 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).
4 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).

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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 6th 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 existence5.
Setting the Scene
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
principles6. 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 law7. Therefore, taking into consideration the rejuvenated comprehending of the
5 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).
6 Koskenniemi, M. “The Fate of Public International Law: Between Technique and Politics”, 70 Mod. L. Rev.
1 (2007).
7 Guzman, A.T. “Saving Customary International Law”, 27 Mich. J. Int’l L. 115, 124–28, (2005).

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article, this stipulation can be the technique for evolution on the construal by allusion to
resources without powerful link with specific treaty8.
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”. 9 The primary concept of the Fragmentation Report was that the different treaties are
not applied along with interpreted in a vacuum10. 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 setting11.
The Operation of Article 31(3) (c) of Vienna Convention
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.
8 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) .
9 Rosentreter, D. Article 31(3)(C)
10 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).
11

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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 interpretation12. These standards are
mainly accrued from international legal along with arbitral process, since it had urbanized from
the end of 19th-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
functions13.
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
12 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).
13 Smith, C.E. The Rhetoric of Justification

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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 uniform14. 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 ineffective15. 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 integration16. 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”17. Inter-temporarily is indivisibly connected to flexible or
evolutive technique of interpretation that demands for the interpretation of a value in line with
14 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).
15 Merkouris, P. Article 31(3)(c)
16 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).
17 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.

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any development, which happened in the court’s relevant legal organization due to the
ratification of the value18.
Justification of Article 31(3) (c) of VCLT
Whilst absolutely providing this alternative, Article 31(3) (c) of the treaties does so in
wider inter-temporal context19. 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 law20. 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 process21.
18
19 Koskenniemi, M.
20 Aust, A. Modern Treaty Law and Practice (Cambridge: CUP, 2008, 2nd edition).
21 Merkouris, P. Article 31(3)(c) of the VCLT and the Principle of Systemic Integration. (QMUL 2010).

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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. 22 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?23
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 rules24.
22 Simma, B. & Kill, T.
23 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).
24 Van Brunschot, F.The Judiciary and the OECD Model Tax Convention and its Commentaries, 59 Bull. Intl.
Fisc. Doc. 1 (2005).

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On the other side, Villinger (2009) maintains that the concept “applicable” does not
consider doubt: non-binding laws cannot be depended on25. 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 practice26. 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.
ECtHr Practice in referring to the Non-binding Normative Environment of Treaties
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 Turkey27. The
25 Villiger, M.E. Commentary on the 1969 Vienna Convention on the Law of Treaties, p. 433 (Nijhoff 2009).
26 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).
27 UK: ECtHR, 21 Nov. 2001, Al-Adsani v. United Kingdom, Judgement No. 35763/97.

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labour union members protested to the European Court of Human Rights that this amounted to
the breach of article 11on freedom of assembly and association28. 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 Experts29. 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 taxation30.
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
28 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.
29 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.
30 McLachlan, C. “The Principle of Systemic Integration and Article 31 (3)(c) of the Vienna
Convention”, 54 Intl. & Com. L. Quart. 2 (2005).

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depended on under accords to interpret these treaties in line with non-binding norms31. Thus, the
wide potential linked by the ECtHR to the article is not considered as something, which is
applicable routinely to agreements in general. 32 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 nature33.
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 rights34. In addition, the article of the Convention has
31 Engelen, F. A. Interpretation of Tax Treaties under International Law.
32 Gardiner, R. Treaty Interpretation (OUP 2008), p. 265.
33 Gardiner, R.
34 Aust, A.

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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 prospect35. 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.
35 Vogel, K. “The Influence of the OECD Commentaries on Treaty Interpretation”, 54 Bull. Intl. Fisc. Doc. 12
(2000), Journals IBFD.

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Contribution of the Dispute Settlement System, Giorgio Sacerdoti, Alan Yanovich and Jan
Bohanes (eds.) (Cambridge: CUP, 2006), 453.
Aust, A. Modern Treaty Law and Practice (Cambridge: CUP, 2008, 2nd edition).
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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).
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and 33 of Vienna Convention on the Law of Treaties and Their Application to Tax Treaties
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Com. L. Quart. 2, p. 302 (2006).
Gardiner, R. Treaty Interpretation (OUP 2008), p. 265.
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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).

Public International Law 14
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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).
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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).

Public International Law 15
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.

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