Disappearance and New Sightings of Restrictive Interpretation(s)

European Journal of International Law, Vol. 21, No. 3, 2010

20 Pages Posted: 24 Dec 2011 Last revised: 10 Jun 2020

See all articles by Luigi Crema

Luigi Crema

University of Milan; University of Notre Dame - Notre Dame Law School

Date Written: November 1, 2010

Abstract

This article looks to the first formulations of ‘restrictive interpretation’ to identify with precision the content and meaning of this rule. First Vattel affirmed that odious clauses should be interpreted restrictively. Then, under the Permanent Court and the first decades of the ICJ, a restrictive interpretation emerged in favour of state sovereignty. Later, with the approval of the Vienna Convention on the Law of Treaties in 1969, the interpretation favourable to state sovereignty was abandoned in favour of an alleged neutral way of interpreting treaties. However, a new restrictive interpretation (of sovereignty) was established, as an expression of the new values emerging in international law. This interpretation was obtained by means of the application of the Vienna Convention on the Law of Treaties, an explicit argument, and Latin maxims. Through a parallel analysis of jurisdictions which hear claims between private parties and states, such as the Strasbourg and the San José Courts, and the ICSID arbitrations, the article reaches the conclusion that this mode of interpretation reveals some inconsistencies. It concludes, however, that international law already has the means to address these issues.

Keywords: Interpretation, object and purpose, restrictive interpretation, Vienna Convention, margin of appreciation, European Court of Human Rights, ICSID, investment arbitration, fragmentation

JEL Classification: K33

Suggested Citation

Crema, Luigi, Disappearance and New Sightings of Restrictive Interpretation(s) (November 1, 2010). European Journal of International Law, Vol. 21, No. 3, 2010, Available at SSRN: https://ssrn.com/abstract=1975543

Luigi Crema (Contact Author)

University of Milan ( email )

Via Festa del Perdono, 7
Milan, 20122
Italy

University of Notre Dame - Notre Dame Law School ( email )

Eck Hall of Law
Notre Dame, IN 46556
United States

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