The Rule of Necessary Implication

2017 draft for inclusion in Joseph Klingler, Yuri Parkhomenko and Constantinos Salonidis (eds), Canons of Construction and Other Interpretive Principles in Public International Law (Wolters Kluwer, 2018 Forthcoming)

28 Pages Posted: 28 Dec 2017

See all articles by Andrew D. Mitchell

Andrew D. Mitchell

University of Melbourne - Law School

Tania Voon

University of Melbourne - Law School

Date Written: July 13, 2017

Abstract

This chapter examines the so-called 'rule of necessary implication' in treaty interpretation by considering international judicial decisions in three different contexts: implied powers as reflected in decisions of the International Court of Justice and the International Criminal Court; implied jurisdiction in investment treaty arbitration; and necessary implication in the dispute settlement system of the World Trade Organization. In our view, the rule of necessary implication does not form part of customary international law per se but rather reflects treaty interpretation as contained in the Vienna Convention on the Law of Treaties and other customary rules of interpretation. Terms may be implied in a treaty, for example, pursuant to the principle of effectiveness, to give effect to the object and purpose of the treaty, to avoid an absurd result, or to conform with the intentions of the treaty parties.

Keywords: treaty interpretation, treaty law, public international law, international investment law, World Trade Organization, International Court of Justice

JEL Classification: K33

Suggested Citation

Mitchell, Andrew D. and Voon, Tania, The Rule of Necessary Implication (July 13, 2017). 2017 draft for inclusion in Joseph Klingler, Yuri Parkhomenko and Constantinos Salonidis (eds), Canons of Construction and Other Interpretive Principles in Public International Law (Wolters Kluwer, 2018 Forthcoming). Available at SSRN: https://ssrn.com/abstract=3093522

Andrew D. Mitchell

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia
+61383441098 (Phone)
+61393472392 (Fax)

HOME PAGE: http://www.law.unimelb.edu.au/staff/Andrew%20Mitchell

Tania Voon (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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