The Interpretation of Acts and Rules in Public International Law (Oxford Monographs in International Law)

## Abstract There are frequent claims that the international legal regulation in one or another field of international law is uncertain, vague, ambiguous, or indeterminate, which does not support the stability, transparency, or predictability of international legal relations. This monograph examines the framework of interpretation in international law based on the premise of the effectiveness and determinacy of international legal regulation, which is a necessary prerequisite for international law to be viewed as law. This study examines this problem for the first time since these questions were addressed, and taken as the basic premises of the international legal analysis in the works of J. L. Brierly and Sir Hersch Lauterpacht. Addressing the different aspects of the effectiveness of legal regulation, this monograph examines the structural limits on and threshold of legal regulation, and the relationship between the established legal regulation and non-law. Once the limits of legal regulation are ascertained, the analysis proceeds to examine the legal framework of interpretation that serves the maintenance and preservation of the object and intendment of the existing legal regulation. The final indispensable stage of analysis is the interpretation of those treaty provisions that embody the indeterminate conditions of non-law. Given that the generalist element of international legal doctrine has been virtually silent on the problem and implications of the effectiveness and determinacy of international legal regulation, this study examines the material accumulated in doctrine and practice for the past several decades, including the relevant jurisprudence of all major international tribunals.

There are frequent claims that the international legal regulation of international law is uncertain, vague, ambiguous, or indeterminate, which does not support the stability, transparency, or predictability of international legal relations. This monograph examines the framework of interpretation in international law based on the premise of the effectiveness and determinacy of international legal regulation, which is a necessary pre-requisite for international law to be viewed as law.

This study examines this problem for the first time since these questions were addressed, and taken as the basic premises of the international legal analysis, in the works of JL Brierly and Sir Hersch Lauterpacht. Addressing the different aspects of the effectiveness of legal regulation, this monograph explores the structural limits on, and threshold of, legal regulation, and the relationship between the established legal regulation and non-law. Once the limits of legal regulation are ascertained, the analysis proceeds to study the legal framework of interpretation that serves the maintenance and preservation of the object and intendment of the existing legal regulation.

The final indispensable stage of analysis is the interpretation of those treaty provisions that embody the indeterminate conditions of non-law. Given that the generalist element of international legal doctrine has been virtually silent on the problem and implications of the effectiveness and determinacy of international legal regulation, this study examines the material accumulated in doctrine and practice for the past several decades, including the relevant jurisprudence of all major international tribunals.

There are frequent claims that the regulation of international law is uncertain, vague, ambiguous, or indeterminate, which does not support the desired stability, transparency, or predictability of international legal relations. This monograph examines the framework of interpretation in international law based on the premise of the effectiveness and determinacy of international legal regulation, which is a necessary pre-requisite for international law to be viewed as law. This study examines this problem for the first time since these questions were introduced and identified as the basic premises of the international legal analysis, in the works of JL Brierly and Sir Hersch Lauterpacht. Addressing different aspects of the effectiveness of legal regulation, this monograph examines the structural limits on, and threshold of, legal regulation, and the relationship between established legal regulation and non-law. Once the limits of legal regulation are ascertained, the analysis proceeds to examine the legal framework of interpretation that serves to maintain and preserve the object and aims of existing legal regulation. The final stage of analysis is the interpretation of those treaty provisions that embody the indeterminate conditions of non-law. Given that the generalist element of international legal doctrine has been virtually silent on the problem and implications of the effectiveness and determinacy of international legal regulation, this study examines the material accumulated in doctrine and practice for the past several decades, including the relevant jurisprudence of all major international tribunals. Contents—Summary Table of Reports and Decisions xix Introduction 1 PA RT ITHE EFFEC T I V ENE SS OF INTER NAT IONA L LEGAL REGULATION 1. Doctrinal Treatment of the Eff ectiveness of Legal Regulation 9 2. Characteristics and Implications of the Eff ectiveness of Legal Regulation 19 PART IITHR ESHOLD OF LEGAL R EGUL ATION 3. Th e Essence of the Th reshold of Legal Regulation 51 4. Customary Law and Inherent Rules 70 PA RT IIIL AW A ND NONL AW IN THE INTERNATIONAL LEGAL SYSTEM 5. Fact as Non-Law and the Limits on its Relevance 108 6. Interest as Non-Law 161 7. Values as Non-Law 180 8. Quasi-Normative Non-Law 195 PART IVTHE REGIME AND METHODS OF INTERPRETATION IN INTER NAT IONA L L AW 9. Conceptual Aspects of Interpretation 285 10. Treaty Interpretation: Rules and Methods 301 11. Treaty Interpretation: Eff ectiveness and Presumptions 393 12. Interpretation of Jurisdictional Instruments 440 13. Interpretation of Unilateral Acts and Statements 465 14. Interpretation of Institutional Decisions 487 15. Interpretation of Customary Rules 496 16. Th e Agencies of Interpretation 511 xii Contents—Summary PA RT VTR E AT Y INTER PR ETATION A ND INDETER MINATE PROVISIONS OF NONL AW 17. Th e Essence of and Response to the Indeterminacy of Treaty Provisions 527 18. Equity and Equitable Considerations in Treaties 557 Conclusion 583 Bibliography 585 Index 593 "This study examines this problem for the first time since these questions were introduced and identified as the basic premises of the international legal analysis, in the works of JL Btierly and Sir Hersch Lauterpacht."--Jacket This monograph examines international legal regulation, analyses how it interacts with non-legal factors, and seeks to understand and confront the alleged inherent ambiguity and indeterminacy.