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Difference and Relations Between Interpretation and Application of Treaties and the Possible Codification

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Treaty Interpretation Under the Vienna Convention on the Law of Treaties

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Abstract

This chapter explains the differences between treaty interpretation (which decides the meaning of a treaty term) and treaty application (which decides the applicable provision for a dispute). It also discusses their relations, i.e. the intertwined relations between treaty interpretation and treaty application. It lists a number of situations to explain such relations.

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Notes

  1. 1.

    Lo (2012), p. 25.

  2. 2.

    Desierto (2010).

  3. 3.

    For discussions of sources of law under WTO dispute settlement procedure, please see Palmeter and Mavroidis (2004), pp. 49–79.

  4. 4.

    Mitchell and Heaton (2010), p. 570.

  5. 5.

    Boda (1973), p. 341; the article is available at http://www.revistas.usp.br/rfdusp/article/viewFile/66677/69287. Accessed 8 Aug 2017.

  6. 6.

    Borgen (2005), p. 580.

  7. 7.

    Panel Report, European Communities—Regime for the Importation, Sale and Distribution of Bananas, para. 7.127, WTO Doc. WT/DS27/R/ECU (adopted 25 Sept 1997).

  8. 8.

    “Countervailing duties” where referred to in this Article are those covered by Article VI of GATT 1994 and Part V of the Agreement on Subsidies and Countervailing Measures.

  9. 9.

    Appellate Body Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products, para. 130, WTO Doc. WT/DS58/AB/R (adopted 6 Nov 1998).

  10. 10.

    Panel Report, European Communities—Measures Affecting the Approval and Marketing of Biotech Products, paras. 7.92–7.93, WTO Doc. WT/DS291/R, WT/DS292/R, WT/DS293/R, Add.1 to Add.9, and Corr.1 (adopted 21 Nov 2006).

  11. 11.

    Appellate Body Report, European Communities—Customs Classification of Frozen Boneless Chicken Cuts, paras. 195, 199, WTO Doc. WT/DS269/AB/R, WT/DS286/AB/R, and Corr.1 (adopted 27 Sept 2005). See also Appellate Body Report, European Communities—Customs Classification of Certain Computer Equipment, para. 89, WTO Doc. WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R (adopted 22 June 1998): “We are puzzled by the fact that the Panel, in its effort to interpret the terms of [the EC Schedule], did not consider the Harmonized System and its Explanatory Notes. We note that during the Uruguay Round negotiations, both the European Communities and the United States were parties to the Harmonized System. Furthermore, it appears to be undisputed that the Uruguay Round tariff negotiations were held on the basis of the Harmonized System’s nomenclature and that requests for, and offers of, concessions were normally made in terms of this nomenclature.”

  12. 12.

    Panel Report, European Communities and its Member States—Tariff Treatment of Certain Information Technology Products, para. 7.440, WTO Doc. WT/DS375/R, WT/DS376/R, WT/DS377/R (adopted 21 Sept 2010).

  13. 13.

    Marceau (2001), p. 1084.

  14. 14.

    Appellate Body Report, Guat—Anti-Dumping Investigation Regarding Portland Cement from Mexico, para. 65, WTO Doc. WT/DS60/AB/R (adopted 25 Nov 1998).

References

  • Boda JG (1973) The doctrine of non-retroactivity of international treaties. Revista da Faculdade de Direito, Universidade de São Paulo 68:341–360. http://www.revistas.usp.br/rfdusp/article/viewFile/66677/69287. Accessed 8 Aug 2017

  • Borgen CJ (2005) Resolving treaty conflicts. George Wash Int Law Rev 37:573–648

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  • Desierto DA (2010) Necessity and “supplementary means of interpretation” for non-precluded measures in bilateral investment treaties. Univ Pa J Int Law 31:827–934

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  • Lo C (2012) Difference between treaty interpretation and treaty application and the possibility to account for non-WTO treaties during WTO treaty interpretation. Indiana Int Comp Law Rev 22(1):1–25

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  • Marceau G (2001) Conflicts of norms and conflicts of jurisdictions—the relationship between the WTO agreement and MEAs and other treaties. J World Trade 35:1081–1131

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  • Mitchell AD, Heaton D (2010) The inherent jurisdiction of WTO tribunals: the select application of public international law required by the judicial function. Mich J Int Law 31:561–621

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  1. Judicial Yuan, Constitutional Court, Taipei, Taiwan

    Chang-fa Lo

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  1. Chang-fa Lo
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Correspondence to Chang-fa Lo .

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Lo, Cf. (2017). Difference and Relations Between Interpretation and Application of Treaties and the Possible Codification. In: Treaty Interpretation Under the Vienna Convention on the Law of Treaties. Springer, Singapore. https://doi.org/10.1007/978-981-10-6866-9_6

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  • DOI: https://doi.org/10.1007/978-981-10-6866-9_6

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  • Print ISBN: 978-981-10-6865-2

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