RULES OF INTERPRETATION – RULES IN THE INTERPRETATION OF TREATIES
Topic starter June 21, 2019 1:42 pm
"In this connection, attention must be drawn to accepted rules in the interpretation of treaties. These rules have been put forward by several authors and jurists to aid the court in resolving the problems faced in the area of interpretation of treaties. See U. O. Umozurike, Introduction to International Law, Ibadan: Spectrum Books Limited, 2005, pages 172 to 175; J. Stone, ‘Fictional Elements in Treat Interpretation’, 1 Sydney Law review, 1955, page 344. Learned Author, U. O. Umozurike (supra) outlined about eight rules to be applied in treaty interpretation. First rule is the Textual, Grammatical or Literal Rule, wherein the court is enjoined to give effect to the ordinary and natural meaning of the provision of a treaty. Second rule is the systematic interpretation, wherein, rather than consider words in isolation, the court considers them within the context of the paragraphs, articles or of the treaty as a whole. Third rule, is the Teleological or Functional Approach, whereby a court determines the objects and purposes of a treaty and resolves ambiguities by giving effect to them. Fourth rule is the Historical Interpretation (Travaux Preparatoires) where the meaning of the text contained in the statute is clarified by reference to the drafting history or preparatory work. Fifth rule is the logical interpretation wherein the object is to eliminate self-contradictions, inconsistencies and absurdities by means of logical reasoning. The sixth rule is the Authoritative Interpretation which the learned author stated, may take the form of preparatory material inserted at the time of the treaty or subsequently with the consent of the parties in order to aid interpretation. The seventh rule relates to subsequent practice whereby important weight is attached to the practice of states and international institutions, which must be consistent and accepted by the parties to be relevant in interpretation. The eight rule is what the author referred to as "inter-temporal law". Here the court must apply present international law to treaties even though the law may have been different at the time the treaty was concluded.
I believe the above rules were aptly covered by the three rules enumerated by Malcolm N. Shaw (supra) at pages 838 to 839 in the following words:
"As far as international law is concerned, there are three basic approaches to treaty interpretation. The first centres on the actual text of the agreement and emphasizes the analysis of the words used. The second looks to the intention of the parties adopting the agreement as the solution to ambiguous provisions and can be termed the subjective approach in contradistinction to the objective approach of the previous school. The third approach adopts a wider perspective than the other two and emphasizes the object and purpose of the treaty as the most important backcloth against which the meaning of any particular treaty provision must be measured. This teleological school of thought has the effect of underlining the role of the judge or arbitrator, since he will be called upon to define the object and purpose of the treaty, and it has been criticized for encouraging judicial law-making…"
The learned author concluded and I believe he was manifestly right that "any true interpretation of a treaty in international law will have to take into account all aspects of the agreement, from the words employed to the intention of the parties and the aims of the particular document. It is not possible to exclude completely any of these components."
PER A. O. OBASEKI-ADEJUMO, J.C.A. IN AFRICAN REINSURANCE CORPORATION VS INDUSTRIAL TRAINING FUND & ANOR
APPEAL NO: CA/L/569/2016
LEGALPEDIA ELECTRONIC CITATION: LERCA/L/569/2016