Treaty Interpretation Under the Vienna Convention on the Law of Treaties by Chang-fa Lo

Author:Chang-fa Lo
Language: eng
Format: epub
Publisher: Springer Singapore, Singapore

10.5.4 Some “Rules” Would not Adversely Affect the Flexibility and the Holistic Interpretation of Treaty Terms

There could be concerns about establishing some “rules” for the use of dictionary could undermine treaty interpreters’ flexibility and could change the function of treaty interpretation rules in enabling treaty interpreters to exercise their power and could affect the “holistic exercise” of treaty interpretation.

Concerning the necessary flexibility and the holistic approach, the “rules” proposed above were specifically dealing with the methods of using dictionary and selecting dictionary meanings. It is in line with the ‘rule’ reflected in United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services (DS285) that it is appropriate to search for appropriate dictionary meaning to identify the ordinary meaning. These “rules” are not to change the nature of checking with dictionary definitions as a starting point of identifying the ordinary meaning of treaty terms. The main idea is that when a treaty interpreter starts with checking dictionary definitions, he/she must be mindful about possible controversies involved and pay due regard to various meanings. He/She must also ensure the selection of dictionary definitions to be as transparent as possible through providing some explanations about the selections. In other words, the “rules” are to ensure that when treaty interpreters start with dictionary definition, they will not do it in an arbitrary manner.

The “rules” proposed above are not to expect or require treaty interpreters to merely rely on dictionary to resolve cases. Rather these “rules” are proposed to properly identify dictionary definitions and to guide the appropriate findings of the meaning for treaty terms. After the starting step of properly checking dictionary definitions, treaty interpreters would still have to rely on the holistic approach under Articles 31 and 32 to decide treaty interpretation. In other words, holistic approach is the second step of treaty interpretation coming after the first step of clarifying the ordinary meaning of the interpreted term, the context of it and the object-and-purpose of the treaty. The “rules” is only to assist finding the ordinary meaning of a treaty term. They would not affect necessary flexibility to take into account other factors to interpret treaty terms.

Concerning the enabling and restricting functions, treaty interpretation principles do not necessarily serve an enabling function. It is also restricting treaty interpreters’ exercise of their interpreting powers. It is not clear as to whether Articles 31 and 32 can be interpreted as only to enable treaty interpreters to exercise their jobs and not to restrict them. As a matter of fact, it might not be difficult to find from WTO practice that there is such restrictive function imposed on the exercise of treaty interpreters’ duties. For instance, the above Appellate Body report on United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services (DS285) requiring the use of dictionary definition not to be too mechanical and requiring due regard to be paid to various possible meanings is apparently restricting treaty interpreters’ exercise of their power. These are not the enabling functions.

It is apparent that

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