
Contents
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I. Introduction I. Introduction
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II. Historical Background II. Historical Background
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III. Contemporaneity and Its Inter-temporal Relatives III. Contemporaneity and Its Inter-temporal Relatives
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A. Conceptual Contours and Qualifications A. Conceptual Contours and Qualifications
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1. The So-Called ‘Inter-temporal Law’ 1. The So-Called ‘Inter-temporal Law’
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2. The Confusion Created by ‘Inter-temporal Law’ in Practice: the Iron Rhine Arbitration 2. The Confusion Created by ‘Inter-temporal Law’ in Practice: the Iron Rhine Arbitration
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3. The Case Concerning Rights of Nationals of the United States of America in Morocco 3. The Case Concerning Rights of Nationals of the United States of America in Morocco
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4. The Special Case of Territorial Sovereignty 4. The Special Case of Territorial Sovereignty
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5. Subsequent Practice of the State Parties 5. Subsequent Practice of the State Parties
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B. Contemporaneity versus Evolving Meaning B. Contemporaneity versus Evolving Meaning
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1. Treaty Terms Intended to Adapt to Evolving Meaning 1. Treaty Terms Intended to Adapt to Evolving Meaning
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2. The Special Case of Constitutive Treaties 2. The Special Case of Constitutive Treaties
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3. Limits to Evolving Meaning 3. Limits to Evolving Meaning
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C. The General Intent of the State Parties C. The General Intent of the State Parties
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IV. The Recent Revival of Contemporaneity in Investor-state Arbitration IV. The Recent Revival of Contemporaneity in Investor-state Arbitration
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A. The ‘Inter-temporal Law’ Confusion, Backwards: Wintershall v Argentina A. The ‘Inter-temporal Law’ Confusion, Backwards: Wintershall v Argentina
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B. Daimler v Argentina and ICS v Argentina B. Daimler v Argentina and ICS v Argentina
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C. Al-Warraq v Indonesia C. Al-Warraq v Indonesia
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V. Concluding Remarks on Contemporaneity and the Vienna Convention V. Concluding Remarks on Contemporaneity and the Vienna Convention
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A. Contemporaneity: What It Means and What It Does Not A. Contemporaneity: What It Means and What It Does Not
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B. Contemporaneity as Part of the Vienna Convention B. Contemporaneity as Part of the Vienna Convention
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C. Criteria for the Use of Contemporaneity C. Criteria for the Use of Contemporaneity
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VI. Conclusion VI. Conclusion
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28 Contemporaneity and Its Limits in Treaty Interpretation
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Published:November 2015
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Abstract
This chapter attempts to dispel the confusion created by the conflation of contemporaneity with other issues of treaty interpretation and so-called inter-temporal law. It explores to what extent contemporaneity is consistent with well-established principles of treaty interpretation, as enshrined in the Vienna Convention on the Law of Treaties. Contemporaneity, as an enquiry into the common usage meaning of treaty terms at the time of the treaty’s conclusion, must be distinguished from the parties’ intent regarding the meaning of specific terms (since the intended meaning can differ from common usage); the parties’ broader intent regarding the treaty’s policy aims; and the question of which interpretation of the treaty may apply to certain acts depending on the time they occurred. Furthermore, there is no reason to presume that contemporaneity applies by default to the interpretation of treaty terms. There is no evidence in modern international law and practice that contemporaneity constitutes a primary rule of treaty interpretation.
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