An Anatomy of Treaty Interpretation: Adjudicating Environmental Disputes under International Economic Law

Abstract

This dissertation examines regulatory space under international economic law using a narrative of interpretation. Specifically, this dissertation seeks to explain how interpretive arguments give rise to broad or narrow constructions of state’s international economic obligations that restrict or uphold the state’s regulatory space on environmental issues at the WTO Appellate Body and arbitral tribunals constituted under the ICSID Arbitration Rules. The dissertation designs a uniform criterion in evaluating international tribunals’ interpretation. Using the mandatory VCLT rule of interpretation as the benchmark, this dissertation scrutinizes the extent to which the WTO Appellate Body and the ICSID arbitral tribunals adhere to the VCLT’s “single combined operation” approach in adjudicating environmental disputes. The narrative of interpretation breaks down the decisions’ legal reasoning process based on the interpretive arguments employed to arrive at a certain construction. This dissertation explains how the interpretive process directly impacts legitimacy of international adjudication on the issue of regulatory space. It finds that rigorous application of the VCLT’s “single combined operation” approach to interpretation is more likely to generate narrow construction of obligations under international economic law that upholds state’s regulatory space on environment. In contrast, slack application and non-application of the VCLT’s “single combined operation” approach to interpretation is more likely to generate broad construction of obligations under international economic law that restricts state’s regulatory space on environment. The findings apply to adjudication of environmental disputes under both trade law and investment law.