Chapter 6 draws together and extends the comparative analysis that has unfolded across the prior chapters. It explains why tribunals’ practices differ across the regimes studied, focusing on contextual differences between the selected tribunals. It also assesses to what extent the practices of the selected tribunals provide insights into wider problems facing international adjudication and legal techniques that are potentially transferable across contexts. Structurally, the chapter discusses consecutively my findings in relation to the three challenges confronting international tribunals analysed throughout the book: managing changes in international law or relevant facts, calibrating the appropriate standard and method of review when scrutinising State conduct for compliance with international law, and contributing to broader processes of dispute resolution. The chapter finishes with some final remarks that close the book, concerning its contribution to our understanding of the role of international adjudication in contemporary international law and its implications for future studies in this field.

Demystifying Treaty Interpretation doesn’t just tell you how treaties are commonly interpreted. It helps you understand the process of treaty interpretation and its outcomes. The idea that rules of treaty interpretation can guide us to the meaning of treaty provisions, in a simple and straightforward manner, is a myth to be dispelled. This book aims to capture some of the complex and nuanced processes involved in treaty interpretation. It spurs further reflection about how interpretation takes place against the background of concepts, categories, and insights from other disciplines. A useful tool for scholars, practitioners, and researchers engaging with treaty interpretation at all levels, the book aims to enhance the reader’s knowledge and mastery of the interpretive process in all its elements, with a view to making them more skilled and effective players in the game of interpretation.

This chapter examines the relationship between the prohibition of the use of force in article 2(4) of the UN Charter and customary international law: if they are identical, the role the customary rule plays in the interpretation of article 2(4) and which one to interpret or apply to determine the meaning of a prohibited ‘use of force’. In doing so it examines the following concepts: the use of pre-existing or subsequently developing custom to fill gaps in the treaty, the use of subsequently developing custom to informally modify the interpretation of the treaty, an evolutive interpretation of the UN Charter and informal treaty modification through subsequent practice. It argues that since article 2(4) is the origin of the customary prohibition, it is not appropriate to use pre-existing or subsequently developing customary international law to fill gaps in interpretation of article 2(4) nor to use subsequently developing custom to modify article 2(4). It concludes that due to the present relationship between the customary and Charter prohibitions, the preferable approach to determine the meaning of prohibited force under international law is to focus on interpreting the UN Charter.

While statutory provisions regarding domestic implementation of international law often remain vague, court practice reveals the actual significance of international law within a domestic legal system. Courts in China in principle refrain from applying international treaties directly if there is no specific enabling legislation that commands them to apply such norms. However, this chapter makes use of open access court decision databases to investigate the interpretation and application of international law by Chinese courts. It analyzes a number of treaties from various areas of international law to answer questions such as: What kind of international treaties are applied by courts? Do judges give primacy to national law or to international law in case of conflicting provisions? What standards of interpretation do judges apply when interpreting international treaties? Do Chinese judges selectively adapt international norms or engage in international norm-making?

Chapter 1 introduces the main themes of the book. It highlights three vantages on what it means to value nature on an aesthetic basis – philosophies of environmental aesthetics, aesthetic theories for the visual arts, and practices of international environmental law. It provides an outline of the book over the eight chapters, explaining how the different vantages on nature’s aesthetic value inform the analysis of photographic images in the book’s case studies of the World Heritage Convention, the Whaling Convention and the Biodiversity Convention. An overview of the international materials examined, and the visual art analysed, is provided. Here, particular mention is made of the book’s use of the rules and documentation of the decision-making processes of the World Heritage Committee, the International Court of Justice, and the Conference of the Parties to the Biodiversity Convention. In a final section, the scholarly theories that inform the book’s methods of analysis are introduced. This includes discussion of academic literature on law and image, sometimes called visual jurisprudence, and debates among philosophers of environmental aesthetics and theorists of visual art.

No international legal judgment has determined the meaning of the environment’s aesthetic value. But many officials interpret words for international law, including those that must negotiate and administer treaties. Chapter 3 looks to such instances of interpretation as it analyses the meaning of ‘aesthetic’ value in accordance with the Vienna Convention on the Law of Treaties. It considers the meaning of ‘aesthetic’ value as an express term of the conventions on world heritage and biodiversity, and as a term informing the interpretation of the Whaling Convention. Applying doctrinal techniques of treaty interpretation, the chapter argues for understandings of aesthetic value theorised among philosophers of environmental aesthetics. However, the practice of treaty bodies suggests interpretations of aesthetic value that are conflated with natural beauty, cultural value and ethical concerns. The chapter observes that orthodox sources for treaty interpretation are written documents and argues that an examination of visual sources should also be entertained. Images, such as photographs, could provide a rich account of the environment’s aesthetic value in international legal practice.

The final chapter 8 considers the implications of an aesthetic analysis of images for international legal practice. International bodies making decisions under the three treaties examined in the book conflate and displace aesthetic value in favour of other environmental values, risking the integrity of their decisions and, ultimately, the protection of the environment for its aesthetic value under international environmental law. Photographs could be formally acknowledged for their relevance to the interpretation of the treaties and used in decision-making processes to conceive aesthetic appreciation of the environment in ways important for all nation states. They can encapsulate a sensorial experience of the natural environment shaped by imagination, emotion and knowledge from different cultures. But a critical analysis of such images is also important to distinguish aesthetic value from other environmental values such as natural beauty, cultural value and ethical value. An accommodation of aesthetic concepts and methods to develop meanings from images for the interpretation of international environmental treaties could also be taken up for other fields of international law.

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.

Anti-satellite weapons that rely on violent impacts and create space debris are regarded as a major threat to the exploration and use of space, including the use of space assets for communications and Earth imaging. This chapter examines two ways in which the testing of such ‘kinetic’ weapons might already have become illegal. First, the accepted interpretation of Article I of the Outer Space Treaty may be evolving as a result of the changing practice of the parties to that treaty. In short, many states are behaving as if tests of anti-satellite weapons that create debris are contrary to the ‘freedom of exploration and use of space’. Second, the same practice and an accompanying opinio juris may be contributing to the development of a parallel rule of customary international law. This chapter also examines the legality of the use of kinetic anti-satellite weapons, as opposed to their testing. Two additional, separate bodies of international law are relevant here: the jus ad bellum governing the recourse to armed force, which includes the right of self-defence, and the jus in bello governing the conduct of armed conflict. A close analysis leads to the conclusion that any use of a kinetic anti-satellite weapon would be illegal today because of the growing crisis of space debris.

This chapter examines the law of treaties in the jurisprudence of the ICJ. The author highlights the Court’s position on key selected issues of interpretation: specifically the language of the treaty; time and treaty interpretation; and the role of policy. The chapter also considers issues of systemic integration, hierarchy and concurrence of rules.

The International Law Commission has described the operation of the VCLT rule of interpretation as a ‘crucible’, whereby it is the combination of the interpretative principles contained in the VCLT rule that in each case yields the meaning of treaty provisions. Taking that view as its starting point, Chapter 4 points out that different interpretative VCLT principles may be assigned different weights in different cases, depending on the drafters’ constructed intention followed by the adjudicator in each case. The underlying idea, therefore, is that all these interpretative principles must hang together well and must be combined in a way that makes sense in the context of each case. This is a sign that considerations of coherence are apposite in the operation of the VCLT rule, acting as reasons that justify the above combination in each case and ultimately account for the outcome’s persuasiveness. In the process, the chapter identifies two key coherence-related processes: framing and normative contextualisation

Considering that judicial fragmentation and convergence concern the interpretation of human rights norms and provisions, this chapter discusses how the human rights bodies under analysis engage with the theory of treaty interpretation. In particular, the chapter illustrates how the human rights systems are engaging differently with judicial dialogue. Through a detailed analysis of the practice of each body, this chapter shows how judicial dialogue led to convergence and how the lack of it led to fragmentation. However, the chapter also highlights situations where despite judicial dialogue fragmentation still arose, discussing the duality and complexity of this instrument for the maintenance of convergence.