Same Pod, Different Peas: The Vienna Convention on the Law of Treaties in Australian and Canadian Courts

AuthorJuliette McIntyre
PositionLecturer, School of Law, University of South Australia
(2017) 3(1) CJCCL
Same Pod, Dierent Peas: e
Treaties in Australian and Canadian
Juliette McIntyre*
What role do the rules of interpretation in Articles 31 and 32 of the Vienna
Convention on the Law of Treaties (“VCLT”) have to play as potential agents of
systemic integration and a coherent international legal system? Part of the answer lies
in an examination of the practice of domestic courts which are increasingly called upon
to undertake the task of interpreting treaties. is paper compares the practice of two
superior courts – the Supreme Court of Canada and the High Court of Australia – in
their approaches to the interpretation of international legal norms and their use of the
interpretative principles in Articles 31 and 32. Despite the theoretical idea that the
VC LT r ules will, or should, encourage consistency of interpretation amongst varied
interpreters, potential for divergences in interpretative technique (let alone outcome)
remains. While both courts identify international law as a single system, and promote
the role of Articles 31 and 32 as a means of ensuring uniformity of treaty application,
historically the practise of the Supreme Court and High Court has been far from
consistent, either internally or vis-à-vis each other. However, as the international
law experience of these domestic courts grows, so too there appears to be an emerging
consensus as to the preferred interpretative approach.
* B.A., LL.B. / L.P. (Hons) (Flin), LL.M. (Cantab). Lecturer in Law,
University of South Australia. e usual disclaimers apply.
McIntyre, VC LT in Australian and Canadian Courts
I. I
A. Why Canada and Australia?
B. Structure of this Paper
II. I L   L S: T R   VCLt  P
S I
III. A  I: T R I  U
IV. A  I L: H  H E
V. I M: T . T  trAVAux
VI. T F  I: F D  C
VII. C
I. Introduction
The Vienna Convention on the Law of Treaties1 (“VC LT”) regulates
for its parties2 a broad range of issues: from fraud and invalidity, to
amendment and the impact of treaties on third states.3 But since its entry
into force in 1980, it is in respect of the rules of treaty interpretation
– Articles 31 and 32 – that the VC LT has achieved a remarkable and
“near universal”4 acceptance. Article 31, now habitually acknowledged as
(entered into force 27 January 1980) [VC LT].
2. Including, relevantly, Australia (accession 13 June 1974) and Canada
(accession 14 October 1970).
3. VC LT, supra note 1 at arts 34, 39, 49; see also Eberhard P Deutsch,
Vienna Convention on the Law of Treaties” (1971-1972) 47 Notre
Dame Lawyer 297.
4. Duncan B Hollis, “Interpretation and International Law” (2015) online:
Social Science Research Network at 4>.
(2017) 3(1) CJCCL
customary international law,5 sets out the “general rule” of interpretation:
1. A treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their
context and in the light of its object and purpose.
2. e context for the purpose of the interpretation of a treaty shall
comprise, in addition to the text, including its preamble and
(a) any agreement relating to the treaty which was made between
all the parties in connexion with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in
connexion with the conclusion of the treaty and accepted by
the other parties as an instrument related to the treaty.
3. ere shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding
the interpretation of the treaty or the application of its
(b) any subsequent practice in the application of the treaty
which establishes the agreement of the parties regarding its
(c) any relevant rules of international law applicable in the
relations between the parties.
4. A special meaning shall be given to a term if it is established that the
parties so intended.
Article 32 contains the rule in respect of supplementary means of
Recourse may be had to supplementary means of interpretation, including
the preparatory work of the treaty and the circumstances of its conclusion, in
order to conrm the meaning resulting from the application of article 31, or to
5. Land, Island and Maritime Frontier Dispute (El Salvador v Honduras),
[1992] ICJ Rep 351 at para 380; Territorial Dispute (Libyan Arab
Jamahiriya v Chad), [1994] ICJ Rep 6 at para 41; Kasikili/Sedudu Island
(Botswana v Namibia), [1999] ICJ Rep 1045 at 1059; LaGrand (Germany
v United States of America), [2001] ICJ Rep 466 at para 99; Case
Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia
v Malaysia), [2002] ICJ Rep 625 at para 37; Case Concerning Avena and
Other Mexican Nationals (Mexico v United States of America), [2004] ICJ
Rep 12 at para 83; Jan Klabbers, “Virtuous Interpretation” in Malgosia
Fitzmaurice, Olufemi Elias & Panos Merkouris, eds, Treaty Interpretation
and the Vienna Convention on the Law of Treaties: 30 Years On (Leiden:
Brill, 2010) 17 (However, Klabbers disagrees that rules on interpretation
can be of a customary nature as they are “simply of a dierent quality”
being “methodological devices” rather than rules guiding behaviour at 30)
[Klabbers, “Virtuous Interpretation”].

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