Interpreting International Law pt. 2
Ever since the initial days of international law, various states have finalised treaties to provide a precise and concise summation regarding their legal obligations. As a result of which, the interpretation of treaties has primarily featured prominently in works of arbitral tribunals, as well the awards of Permanent Courts.
The Vienna convention regarding the law of treaties of 1969 addressed the issue of interpretation of international treaties in Section 3. However, the convention ultimately lacked the retroactive effect in turn required in terms of Article 4 hence ended up being non-applicable to interpreting the New York Convention of 1958. However, not all contracting states which adopt the UNCITRAL model law of 1985 are member states to the Vienna convention.
Essentially a treaty or convention or any other form or type of international law will mostly have three different kinds of statuses and positions in National law-
1- a particular enactment might embody, probably not in the exact same words, provisions which have the effect of the treaty “direct enactment of the treaty”.
2- another type of enactment might state that the treaty is itself to have the effect in terms of the law, which would leave the treaty’s provisions to apply with or even without modification “indirect enactment of the treaty”.
3- the last type of treaty can be left to be referred to in the construction of a specific and linked enactment only to be called for presuming that the law-making body in question wants to comply with public international law “Indirect reference to the treaty”.
The way in which international conventions should be ideally construed has been summed up in a decision of the United Kingdom’s Judicial Committee of the House of Lords; the decision was as follows
The point that is reiterated continuously regarding the convention that it is not correct to construe its language with the same precision as one would if it had been in turn an act of parliament. Conventions are international instruments and should be treated as such. Hence, the prerogative of the choice of wording should be taken to have been the product of the inevitable process of negotiation and compromise. Subsequently, the conventional rule that international treaties and conventions should be construed uniformly by national courts of all states. This very point also suggests to the fact that the best guide to the meaning of the words used in the convention is most likely to be found by giving them a token meaning in the face of the purposes which the convention in question was meant to fulfil.
While pertaining to the facts of a specific case, while considering which of the opposing constructions of a particular enactment should be ideally giving effect to the legislative intention, the court ideally should be presuming that the legislature intended to observe the well-established principle and the assertion that municipal law( the law of the individual state) should be conforming to public international law.
For the overall purpose and aim of attaining ultimate uniformity of application internationally, along with the correct interpretation of a treaty, a court of the state is granted the power to refer to decisions of foreign courts.
Source: The Arbitration Series Volume 2 Harmony amidst Disharmony: The International Framework- Fali S Nariman