It is apparent that Simon, “our fearless leader” is keen to rely on titles to assist in the interpretation of articles and text in treaties. While titles may be of some assistance in certain circumstances the particular use of textual analysis doesn’t seem nearly as determinative as Simon seems to make out. And while the Appellate Body (AB) has referenced and used titles it does not fully subscribe to this approach; nor does the International Court of Justice (ICJ); nor for that matter do international adjudicators.
The AB has previously referred to the title of a provision when interpreting the requirements within two cases, the US-Softwood Lumber IV (para 93), and the US-Carbon Steel (para 67) – and more recently as noted by Simon in the China Raw Materials case. But, while the AB is determined to undertake a thorough textual analysis, it does not adopt a singular approach to treaty interpretation. Rather, a combination of various criteria is utilized to interpret the treaty text.
In 1969 the Vienna Convention on the Law of Treaties (VCLT) and the International Law Commission (ILC) explained that the starting point for interpreting what the meaning of a treaty article is, is the actual article or terms of the text. In referencing the object and purpose and the context, the ILC explained that in practice, some elements of interpretation rest upon other general principles, such as pacta sunt servanda, and also provide an adjudicator with flexibility to approach the text of the treaty.
International lawyers tend to favour the VCLT approach because it not only deals with the treaty text, but also guides an interpretation built upon assessing the treaty text in the context of the entire agreement. In interpreting treaty terms it is critically important to understand that the application of the means of interpretation is not a set of general rules, but is, as titled (ironically enough), a ‘General Rule of Interpretation’ – with the word ‘context’ linking all of the elements of interpretation together.
As we all know, there are many different approaches: subjective, objective, textual, and theoretical. Those treaty interpreters that focus on the text of the document do not, however, generally ignore the value of negotiating history, the intention of the parties, or the object and purpose of the treaty. Thus, the more effective approach is identified in the work of interpreters who prioritize the intention of the parties – especially from the negotiating history, joint interpretations, and subsequent practice. Even this approach reflecting the object and purpose of treaty interpretation - this intent-based approach - is not a perfect answer to the problem. It cannot be taken as a complete guide in deciphering the meaning of treaty language.[1] The approach is unlikely to answer whose intention, what was intended, and at what time that intention matters.
The VCLT rules of treaty interpretation were expressly applied to dispute settlement by the ICJ in the 1994 case of Territorial Dispute (Libyan Arab Jamahiriya v Chad), and then by the AB in the 1996 case of United States – Standards of Reformulated and Conventional Gasoline as: ‘the customary rules of interpretation of public international law.’ In accordance with the ILC, the AB examines the objects and purposes of the treaty to provide context to its textual approach. Generally, the ICJ begins with the textual approach, but then expands through the VCLT and focuses on the context of the relevant treaty, as well as its object and purpose.
Now, getting back to interpreting a treaty provision based on its title. To provide context to treaty provisions, the title may be the obvious starting point for identifying the scope of the treaty provision in it. Richard Gardiner, however, points out that “titles are often too general to provide precise guidance.”[2] So while Simon is keen to examine the ‘title’ I say: context, context, context.
[1] Isabelle van Damme, “Treaty Interpretation by the Appellate Body”, Eur. J Int Law (2010) 21 (3) 605-48, at 618.
[2] Richard Gardiner, Treaty Interpretation, (OUP, 2008) at p180.
