This thesis explores the rules of treaty interpretation as they are applied by foreign investment arbitral tribunals ("FIATs"). Its primary aims are: a) to determine whether FIAT treaty interpretation practice is generally consistent with other international courts and tribunals; b) to assess whether the treaty interpretation rules contained in the 1969 Vienna Convention on the Law of Treaties ("Vienna Convention") are suitable for application in investor-State treaty disputes; and c) to evaluate the contribution of FIAT treaty interpretation jurisprudence to international law. The body of the thesis provides a background to treaty interpretation rules in international law and then examines in detail the application of the rules of interpretation contained in the Vienna Convention by both international courts and tribunals and FIATs. It also explores modes of interpretation that have been deployed by these two groups which are not explicitly referenced in the Vienna Convention. Investigation is also made of some unique or notable aspects of FIAT jurisprudence that relates to treaty interpretation. The research was carried out primarily through the analysis of international court and tribunal decisions and FIAT awards. The principal findings of the thesis are that: a) a general congruence exists between the interpretative practice of FIATs and that of other international courts and tribunals; b) the application of the Vienna Convention rules on treaty interpretation are suitable for investment treaty arbitration, with some exceptions, e. g., in situations where investors have vastly disproportionate access to the preparatory work of treaties as compared with respondent States; and c) FIATs have made a significant contribution to the international law of treaty interpretation.

The World Trade Organization’s agreements contain a national security exception, that allows WTO members to circumvent their international trade obligations under the organization if they find it necessary to protect their essential security interests. The exception embodies the complex and difficultly navigated line between national security and free trade. National sovereignty is a matter that is widely considered to go beyond the interests of trade, a notion from which the need of a security exception spawns, while circumvention of the WTO obligations for any other reason than honest and real intent to uphold security clearly undermines the system.  To date, two WTO panels have interpreted a subparagraph of the national security exception, namely the case where a member may adopt measures they find necessary for the protection of their essential security interests in times of war or other emergency in international relations. To satisfy the requirements under this provision, a member must adhere to the principle of good faith by articulating its essential security interest, and elucidate the link between these interests and the trade restrictive measures adopted. However, the panels failed to properly scrutinize the existence of good faith. Instead, fulfillment of these requirements was determined by how close the emergency in international relation lied to the hard core of armed conflict. In this essay, it is argued that the failure to properly review good faith leaves a legal loophole that enables abuse of the exception for purely economic reasons. Previously, the atmosphere of the trading system allowed security and economic matters to more easily be kept apart. However, recent developments of national trade policies and the rise of new economic powers have changed the balance of the geoeconomic order.  Because uncodified powers no longer efficiently suppress security disputes from entering the WTO, this essay concludes that the security exception might have to be clarified to prevent abuse. Considering the changes to the trading regime’s state of play, the main discussion held is on whether an evolutionary interpretation of the term “emergency in international relations” could help remedy the loophole in the national security exception. As the multilateral trading system is facing challenges much different from the post-war environment in which the exception was drafted, the security exception must be interpreted in a dynamic manner to ensure compliance with the intention of its drafting parties.

Considering that the concept of sustainable development has a function of normative integration in international law, Article 31(3)(c) provides a legitimate basis of such systemic integration. At the same time, it displays the limitations of the harmonious solution drawn from its application because it works only within the rigid consent-based framework in which the referenced rules should be legal “rules” and should be “applicable in the relations between the parties.” International jurisprudence suggests supplemental elements to overleap the consensual limitations in the application of Article 31(3)(c): a generic term and the object and purpose of the treaty. These text-based and the object-and-purpose-based developmental interpretative techniques enable interpreters to consider legal rules that are not “any relevant rules of international law applicable in the relations between the parties” under Article 31(3)(c).

Considering that the concept of sustainable development has a function of normative integration in international law, Article 31(3)(c) provides a legitimate basis of such systemic integration. At the same time, it displays the limitations of the harmonious solution drawn from its application because it works only within the rigid consent-based framework in which the referenced rules should be legal “rules” and should be “applicable in the relations between the parties.” International jurisprudence suggests supplemental elements to overleap the consensual limitations in the application of Article 31(3)(c): a generic term and the object and purpose of the treaty. These text-based and the object-and-purpose-based developmental interpretative techniques enable interpreters to consider legal rules that are not “any relevant rules of international law applicable in the relations between the parties” under Article 31(3)(c).

本稿は、条約解釈規則を分析軸として、国際司法裁判所によるジェノサイド条約の判断が、条約当事国の意思に従っているのかについて検討する。本稿では、国際司法裁判所の判例の中でも、1951年「ジェノサイド条約の留保」勧告的意見に限定した結果、分析軸となる条約解釈規則も、当該勧告的意見当時の条約解釈規則に限定している。 / This article examines by means of the rules of treaty interpretation whether the decisions of Genocide Convention by the International Court of Justice follows the intentions of the parties to the Convention. It focuses on Advisory Opinion of Resevations to the Convention on Genocide in Cases of the Court, so the rules are limited to them of those times. / 博士(法学) / Doctor of Laws / 同志社大学 / Doshisha University

More than fifty investor-state arbitration claims have been filed by foreign investors against the Republic of Argentina due to the country's adoption of measures to mitigate the consequences of a severe financial crisis that struck the country in the early 2000s. Argentina invoked the Non-Precluded Measures (NPM) clause in the U.S.-Argentina Bilateral Investment Treaty (BIT) and the necessity defence in customary international law as its defense in these arbitrations. As a result of taking divergent approaches to interpreting the NPM clause in the U.S.-Argentina BIT, the tribunals reached inconsistent decisions on Argentina’s liability for damages incurred by foreign investors, which intensified the legitimacy crisis in the investment arbitration regime. Consequently, the tribunals’ approaches to interpreting the nexus requirement of the treaty NPM clause (the "necessary for" term) caused a fierce academic debate among scholars. This thesis studies the issues related to the inconsistent interpretation of treaty NPM clauses and the customary necessity defense in the investment arbitration regime. It presents a detailed examination of the necessity defense in customary international law and treaty NPM clauses through the lens of regime theory. By applying relevant concepts of regime theory, such as regime formation, regime attributes, regime consequences and regime dynamics, this work explores the origins and evolution of the necessity doctrine, and provides a comparative analysis of the attributes, structural elements and the consequences of invoking the customary necessity defense and treaty NPM clauses. This thesis analyses the interpretative issues in the Argentine cases, and based on the dynamics of developments in the practice of states, it arrives at concrete proposals that will contribute to the coherent practice of investment arbitration tribunals in interpreting treaty NPM clauses. By applying the concept of interaction of regimes, this thesis provides a comparative analysis of tests suggested by scholars for interpreting Article XI of the U.S.-Argentina BIT. It examines whether the interpretative testsmargin of appreciation, proportionality and less restrictive meansused by dispute settlement bodies in other specialized treaty regimes have the potential to serve as an optimal standard for interpreting Article XI. This work explains the contents of these tests and inquires as to the advantages and criticisms related to their application in the investment arbitration regime. This thesis further advances the argument that the interpretation of treaty NPM clauses (Article XI of the U.S.-Argentina BIT) should be performed with strict adherence to the general rules of interpretation as established under Article 31 of the Vienna Convention on the Law of Treaties (VCLT). Specifically, it argues that in cases when tribunals fail to define the meaning of a treaty provision under Article 31 (1) and (2) of VCLT, they should not look for guidance from other specialized treaty regimes, but rather, must have recourse to general international law, specifically, customary rules of international law. As a methodology for performing this interpretation, this thesis proposes to apply a systemic integration approach through operationalizing Article 31(3)(c) of VCLT. Furthermore, this thesis advances the argument that the interpretation of the only means requirement of the customary necessity defense (Article 25 of Articles on the Responsibility of States) does not accurately reflect the contemporary customary rules on necessity. Thus, by applying the concept of regime dynamics, it proposes to reconceptualise the interpretation of the only means requirement through incorporating the elements of a more progressive version, which is found in the international trade regime. Unlike the scholars who rejected the application of the customary necessity elements, and proposed the direct importation of the LRM test from the international trade regime to interpret Article XI, this thesis proposes a different approach to taking advantage of the WTO jurisprudence. Specifically, it argues that WTO jurisprudence can be incorporated into the investment regime indirectly by serving as a source from which we can identify the development of state practice in examining the "only means" nature of state measures adopted in emergency (necessity) circumstances. It is contended that such state practice represents a more progressive and practical approach to interpreting the only means requirement of customary necessity defense, and thus, should be incorporated into the interpretation practice of investment arbitral tribunals.

Canadian courts, despite recognition in the Canadian Constitution, 1982 that treaties are to govern the Crown-Aboriginal relationship, continue to develop principles of interpretation that narrow Aboriginal and treaty rights, including the taxation provisions of the Indian Act. In Robertson, the Federal Court of Appeal, building on Mitchell v Peguis, articulated a “historic and purposive” analysis, by reliance on a distinctive culture test and an ascribed protection rationale, thereby abrogating the fundamental treaty relationship. As a means to fuller implementation of the spirit and intent of Treaties, taxation provisions must be interpreted in a treaty-compliant manner. The potential for economic participation through a proposed “urban reserve” on the Kapyong Barracks in Winnipeg, Manitoba, as part of a Treaty 1 settlement, is discussed as a case study, and compared with similar developments in New Zealand, under a Waitangi Tribunal settlement, as an example of treaty compliance in economic development. / May 2017

The thesis answers the question "How does the change in effective control affect investment protection mechanisms in the Ukraine - Russia BIT against the temporal scope of when investment was made?". The essence of the Tribunal's jurisdiction, territorial and temporal scope of the Ukraine - Russia BIT were analyzed according to the rules of Vienna Convention on the Law of Treaties. Relevant case law, doctrine and available information on the awards in "Crimean cases" were also parts of the analysis. A conclusion was made that changes in effective control activate BIT protection for Ukrainian investors in Crimea against actions of Russian Federation. As a result, investment arbitral tribunals have jurisdiction in cases where investment has not been initially made in the territory of the host state. The date of Russian Federation consent to arbitrate with Ukrainian investors in Crimea is the date of actual change in effective control.

L’Arctique est victime de bouleversements majeurs en raison des changements climatiques. Contrairement au régime général pour la zone économique exclusive, l'article 234 de la Convention des Nations unies sur le droit de la mer de 1982 autorise les États côtiers à adopter et à imposer des standards nationaux (plutôt qu'internationaux) pour prévenir et maîtriser la pollution du milieu marin par les navires mais seulement dans les zones de leur zone économique exclusive recouvertes par les glaces « pendant la majeure partie de l'année ». Or, les données et rapports scientifiques prévoient qu'en raison du réchauffement climatique exacerbé dans la région, l'océan Arctique sera libre de glace pendant plusieurs mois chaque année, et ce, à compter de 2050. Une telle transformation physique semblerait remettre en cause l'applicabilité de l'article 234 et les droits qui en découlent pour les États côtiers. Le mémoire propose donc d'aborder cet enjeu en analysant le contexte et les motivations des États au moment où l'article 234 a été adopté. Une attention particulière sera portée à l’étude du développement du droit de la mer moderne ainsi qu’aux négociations entourant l’article 234, en vue de formuler des arguments en faveur de son applicabilité future, basés sur les méthodes d’interprétation des traités. / The Arctic region is the victim of major upheavals due to climate change. Unlike the general regime for the exclusive economic zone, Article 234 of the 1982 United Nations Convention on the Law of the Sea allows coastal states to adopt and impose national (rather than international) standards to prevent and control the pollution of the marine environment by ships, but only in areas of their exclusive economic zone covered by ice "for most of the year". However, the data and scientific reports predict that due to exacerbated global warming in the region, the Arctic Ocean will be free of ice for several months each year, starting in 2050. Such a physical transformation would seem to call into question the applicability of Article 234 and the resulting rights of coastal States. This thesis therefore proposes to address this issue by analyzing the context and the motivations of the States at the time when Article 234 was adopted. Particular attention will be paid to the study of the development of the modern law of the sea as well as to the negotiations around Article 234, in order to formulate arguments in favor of its future applicability, based on treaty interpretation methods.

This work explores the insights that can be gained from an investigation of the shared terms of the Manitoulin Island treaties of 1836 (Treaty 45) and 1862. I focus specifically on these treaties because I was raised in proximity to this area. This thesis is very much a personal exploration in the sense that I have come to understand myself as implicated in a treaty relationship and wish to know my obligations under these agreements. In my interpretation of the Manitoulin Island treaties, I employ a strategy developed by Dr. Michael Asch that begins with the Indigenous understandings. Within this strategy, treaties are conceptualized as honourable agreements meant to ensure our legitimate presence on this land. This methodology is unique in the sense that it conceives of our representatives' actions as sincere. This step is necessary because Indigenous peoples believed we were acting honourably during negotiations. In applying this strategy in my reading of the Manitoulin Island treaties, my objective is to discern the treaty relationship that was established, and to state clearly the obligations of both parties under these agreements. Though the primary focus of this thesis is my analysis of the treaties, I briefly discuss in my conclusion the anthropological insights I have gained from this exercise with respect to communication across cultures. Throughout this work, I focus on the concept of sharing as a productive and positive framework for thinking about relationships between cultures.