From the U.S. - Orange Juice (Brazil) panel report (DS382) circulated last Friday:
7.129 It is well established that the purpose of treaty interpretation through the use of the Vienna Convention is the identification of the common intention of the parties. It follows that where the common intention of the parties to a treaty explicitly provides for two conflicting interpretations of the same term or treaty provision, the Vienna Convention rules on treaty interpretation must necessarily recognize both positions. In other words, where the very words of a treaty expressly provide for the legality of two rival interpretations, the Vienna Convention will respect both interpretations. The same result must also hold where the examination of a term's ordinary meaning, in the light of its context and the object and purpose of the treaty to which it pertains, establishes a common intention of the parties to accept two conflicting interpretations. To the extent that both circumstances give effect to the common intention of the parties, they are not only consistent with the rules of interpretation contained in the Vienna Convention, but also entirely coherent and representative of the particular order negotiated by the parties. ...
At first glance, it seems to me that the Panel is saying the following. Under the Vienna Convention rules of treaty interpretation, it is possible to find that there are two conflicting interpretations. Where this is the case, both interpretations are legitimate. This is true where the treaty provides expressly for both conflicting interpretations, but also where the interpreter establishes the two conflicting interpretations by looking at all the interpretive elements in a holistic exercise. The key issue, in a sense, is whether allowing both conflicting interpretations was the "common intention of the parties."
Complicating things a bit, this is all discussed under a sub-heading that refers to AD Agreement Article 17.6(ii), and the preceding paragraph refers to the parties' arguments on that provision. Article 17.6(ii) states:
the panel shall interpret the relevant provisions of the Agreement in accordance with customary rules of interpretation of public international law. Where the panel finds that a relevant provision of the Agreement admits of more than one permissible interpretation, the panel shall find the authorities' measure to be in conformity with the Agreement if it rests upon one of those permissible interpretations.
Here are some questions that occur to me.
What's the difference between the Panel's view of the Vienna Convention rules, on the one hand, and the special 17.6(ii) standard of review, on the other? Do they both envision that multiple permissible interpretations are possible? If the Vienna Convention provides for this anyway, what's the purpose of 17.6(ii)? Can 17.6(ii) simply affirm what is inherent in the Vienna Convention? Or can the Vienna Convention provide for this in a way that is slightly different from what is in 17.6(ii), by limiting it to situations where conflicting interpretations were the "common intention" of the parties? Finally, is the Panel saying all this simply in relation to 17.6(ii), that is, it is saying "here's how 17.6(ii) works in the context of the Vienna Convention"? Or is it a more general statement about how the Vienna Convention works? If the latter, for those who know the Vienna Convention, is there anything to this?
