Art and Rules
I much enjoyed reading the views of Duncan Hollis on the art element in treaty interpretation and on auto-interpretation. I agree that who it is who is making an interpretation may play a key part in the outcome. That two tribunals arrived at different interpretations of similar “umbrella” provisions in bilateral investment treaties shows this all too vividly (SGS v Pakistan and SGS v Philippines).
The discussion of Leo Gross’s theory of auto-interpretation adds what may be a dimension of realism, reflecting the most common circumstances of treaty interpretation. It may help explain the tolerance of the divergent interpretations in national courts of the “uniform” provisions on carriage by air described in my previous comments. But, absent specific indications favouring auto-interpretation (such as the fall-back to national definitions for terms undefined in double taxation agreements following the OECD model), auto-interpretation seems an uneasy fit with the notion of agreement (unless one accepts the generality of Philip Allott’s description of a treaty as “a disagreement reduced to writing”).
The question put to the ILC on the art of treaty interpretation was “whether there were any rules for practising that art”. The end result was the Vienna rules. Certainly these only amount to a rather loose framework. Switching to the analogy of musical composition as an art form, there are understandings as to what a fugue or sonata is, and their composition can be seen as being to some extent governed by rules; but within either form very different results can be produced. To the extent that there are rules for treaty interpretation, they constitute a springboard rather than a straightjacket.
The ILC seems to have adopted the term “rules” rather casually, their Special Rapporteur (Waldock) musing that “[i]n a sense all ‘rules’ of interpretation have the character of ‘guidelines’…”. The Commission took more care in explaining why the content of Article 31 was described as the singular “general rule”; but elsewhere in the Vienna Convention, selection of the terms “rule” and “rules” does not suggest profound consideration of terminology. Use of the description “the Vienna rules” seems generally a convenient shorthand for the three articles forming the set of relevant provisions. Their content is more of an indication of what is to be taken into account when interpreting a treaty, with only some hints of how to achieve an interpretation – hints left to be gleaned from quite sparse indications.
I have to plead guilty to hedging my bets on whether there is a “correct” interpretation to be given to a treaty provision. Stating that “no claim is made that the Vienna rules … lead directly to a necessarily correct result in every case”, and suggesting that further guidance is required “to set the ground for a ‘correct’ result, or at least one which has been correctly ascertained” (pp 6-7), I had in mind that the Vienna rules provide an agreed starting point for interpretation and something of a framework for the interpretative process.
My initial aim was, in fact, even more basic – to persuade interpreters to consider all relevant elements in the Vienna rules. Some otherwise quite respectable courts and tribunals used to give the impression that they saw the opening reference in the rules to “ordinary meaning” as a green light for a literal interpretation, perhaps dipping their toes timidly in the waters of context and purpose, giving a nod to preparatory work, and ignoring the rest. In assessing and applying the Vienna rules it is at least necessary to check out the whole package.