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

• Author: Juliette McIntyre
• Position: Lecturer, School of Law, University of South Australia
• Pages: 19-64

19

(2017) 3(1) CJCCL

Same Pod, Dierent Peas: e

Vienna Convention on the Law of

Treaties in Australian and Canadian

Courts

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.

20

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

prépArAtoires

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

1. Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331

(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 ssrn.com/abstract=2656891>.

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(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

annexes:

(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

provisions;

(b) any subsequent practice in the application of the treaty

which establishes the agreement of the parties regarding its

interpretation;

(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

interpretation:

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”].