Lecture XI

INTERNATIONAL TREATY

"As the object of interpretation is to arrive at the intention

which existed when the agreement was recorded, it follows thal
words or phrases must be given that meaning whichthey bore
at the time when the instrument in question was executed.
- Judge Van Il(vk
SynopsTs
1. Introduction
2. Traditional Schools of Treaty Interpretation
3. Judicial Trends
1. INTRODUCTION:
A treaty is an agreement entered into by actors under
international law such as sovereign states and international
organisations. An international agreement, protocol, covenant,
convention and pact are poecilonyml to the treaty. Irrespectiveof
its jargon, all these agreementsare equally consideredtreaties
under the international law.
Prof. Oppenheim says that an international treaty is an
agreement with a contractual character between states/organisations
of states creating legal rights & treaties.
Article 2(1) (a) of the VCLT defines a treatyas:
"Ihe term "treaty" means an international agreementconcluded
between States in written form and governed by internationallaw,
whether embodied in a single instrument or two or more related
instruments and whatever its particular designation. These treaties
are governed by international law.

l. 'Ihe word that is almost same (Synonym).

222
 Lcc.X11 International Treaty
223
Internationallaw is a system of rules and
govern the international relations between states andprinciples
other that
of international law. The states are bound to fulfil the subjecß
obligatio•ns•
assumed under treaties (Pacta sunt servandal These
treaties
may be either bilateral or multilateral or universal.
If any dispute arose while understanding the textofa
treaty
what would be the method of resolving it? One of theanswers
would be, Article 31, 32 and 33 of "Vienna Conventionon
of Treaties (VCLT)". VCLT applies only to treatiesconcluded
between countriesbut not to agreements. As of now,parties
to
VCLT are 115 and signatories are 45. VCLT applies onlytoatreaty,
which came into force after 27 Jan. 1980. But irrespectiveofother
articles underVCLT, Article 31, 32 and 33 are not [Link]
articles apply not only for an interpretation of conventionbutalso
to a statute which is an effect of the convention.2
2. TRADITIONAL SCHOOLS OF TREATY
INTERPRETATION:
According to Fitzmaurice, there are three schoolsoftreaty
interpretation, i.e., textual school, intention school andteleological
school. The first school deals with interpretation accordingtothe
ordinary meaning of words of a treaty, second deals with interpretati on
according to the intention of the parties and last deals with interpretation
in accordance with aims and purpose of the treaty.
Article 31, 32 & 33 as follows:
Article 31 General rule of Interpretation
1, A treaty shall be interpreted in good faith in accordance
with the ordinary meaning to be given to the termsofthe
treaty in their context and in the light of its objectand
purpose.

1. Agreements must be kept

2. R v. Secretary of Statefor the Home Department exparteAdan,
4 All ER 774, p. 785.
 on Interpretation of Statutes [Link]
.1

fovthe purpose of the interpretation

comprise, in addition to the of a
text, including
Ole and annexes:
•aeveementrelating to the treaty which
all the parties in
was
ladebetween connection with the
sonclusionof the treaty;
anyinstrument which was made by one or more
partiesin connection with the conclusion of the treaty
andaccepted by the other parties as an instrument
relatedto the treaty.
be into account, together with the context:
any subsequent agreement between the parties
interpretation of the treaty or the
applicationof its provisions;
[Link] practice in the application of the
treatywhich establishes the agreement of the parties
regardingits interpretation;
any relevant rules of international law applicable in
the relations between the-parties.
Aspecialmeaning shall be given to a term if it is established
thatthe parties so intended. l
efineunclear terms, as the first means of interpretation,
isappliedby applier to understand the treaty in good faith
tenceto the purpose of the treaty.
Cle32 Supplementary means of interpretation
bursemay be had to supplementary means of interpretation,
thepreparatory work of the treaty and the circumstances
flusion,in order to confirm the meaning resulting from the
of article 31, or to determine the meaning when the
Ilionaccording
to article 3 i
leavesthe meaning
ambiguous or obscure, or
3i, Vienna
Convention on Law of Treaties, 1969.
 International Treaty
(b) leads to a result which is zazifestly
urreasonable-z
If uraning of a term results
after applying Article Article 32 is to
suvpknrntary nrans of inte±pc-et2Scn
Article33,-Interpretation ot treatis in
two or kanguae;es
a has in
knguages- text is equ.2y
unless treaty cease
of di'.ærgen•ce-a particular text
A '.ersion of the treaty in
in text
an-authentictext enlv if se
so azre•e-
ed to
3. The terms of the treaty are pc-esc-re
uranine in each text-
4- Exc. a text ia
I
paragraph a texts
&scloses a difference
31 and 32 does
Festreconciles the texts. to
of the treaty-shall
Aråcle 33 helps in
multipleautikYitatö.etexts the
VCITs commencementresolvedzany cocz-ov.•rsies
treaües- laid au
amifrom coautrncenrnt- there is no æks
deades- But VCLT is not unless iz-
VCLTis not retroacti&æ-E'.æn VCLTdees assisz iz to

Art- 32, Nienna Convention on

Art-33, NiennaCementi•n on Lav
 226 Lectures on Interpretation of Statutes [[Link]

understand a treaty but only gives means of interpretation for an

applier during the process of interpretation.
3. JUDICIAL TRENDS:
In Ram Jethmalani vs. Union of India l , it was held that,
though India is not a party to the Vienna Convention on Law of
Treaties, it contains many principles of customary international law
and principle of interpretation of Article 31 of VCLT and provides
an appropriate manner of interpreting a treaty in India context also.
It was also held that the words to be given general meaning which
is general to both lawyer and layman equally. It should be given
a diplomat's meaning rather than a lawyer's meaning. The
Government cannot bind India that repeals provisions of
Constitution.
In Admissionof a State to the United Nations2it was held
that "there is no occasion to resort to preparatory work if the text
of a conventionis sufficiently clear in itself'.
In Interpretation of Peace Treaties case3, there was a peace
treaty between the Allied Powers and Bulgaria, Hungary,Romania.
A commission will hear the disputes concerning this treaty. The
commission consists of three members. The two parties should
appoint a member each and should agree to a third person. In
case, if they won't agree, the Secretary-General of the UN should
appoint a third person.
A dispute took place with respect to human rights guarantees
in the treaties. But Bulgaria, Hungary and Romaniarefused to
appoint a member. So, Allied Powers wants to establish the
commission with only two members, one member appointed by
them and the other appointed by SG of UN. The same was
brought before ICJ.
The Court here held that it is not lawful to establish a
commission with two members. The principle of effectiveness
cannot be applied in a case where it overrides the clear meaning
1 (2011) 8 SCC I-E 3. [1950 ICJ, 2211.
2. (1948) ICJ Rep 57.
 Lec.X11 International Treaty
[Lec.X1 227
of a text. So, the court refused to apply because the textis bei
for an overridden. The court should not revise a treaty; ratherit
should
interpret a treaty.
Here, the court applied Article 31 (1) of •VCLTandheldthat
ild that, an ordinary meaning should be given to the terms of a treaty,.and
La of it should not be overridden.
In Costa Rica v. Nicaragua (Dispute regårding Navigational
alsc and Related Rights)l , Nicaragua imposed restrictionson Costa
Rican boats and their passengers against navigation on theSan
Juan River which is a violation of 1858 Treaty of [Link]
is no dispute that the San Juan River belongs to Nicaraguabecause
the border lies on the Costa Rican bank with a rightof free
navigation for Costa Rica. Here, the issue is whetherthe "con
objectos de comercio " includes Costa Rica's right to free navigation
on the San Juan River. Nicaragua contended that 1858treatyis
limited to free transport of goods and Costa Rica contended
that
the Spanishphrase includes free transport of both goodsand
passengers, Including tourists. Here, Court held that CostaRica
has free transport of both goods and passengers includingtourists
on San Juan River and Nicaragua can impose regulations
but

cannot impose restrictions. Therefore, the court appliedArticle

31

of VCLT and held that the Spanish phrase includestouristsand

Nicaragua can only impose fegulations but cannotimpose
restrictions.
In Regina v. Immigration Appeal Tribunal andAnother
ex parte Shah2,applicants are the citizens of Pakistanwho
the
to the UK as visitors for six months. These applicantsappli
by
for asylumon the ground that
was they were falsely accused by
charge of adultery and
condemned for sexual misconduct in
local communityand they protection
lacked the male
country and also abandoned
ess by their husbands. The
feared of the persecution
ng on the ground of physicaland
abuse if they return to
Pakistan. The strict ShariaLaw
asylum wa s rej ected
for
I.C.J. Reports 2009,
p. 213. 2. (1999)
 [Lcc.X1
on Interpretation of Statutes
a social group. The Court held
theydidn't form on evidence produced.
that status depends
ground of refugee to protect them against domestic
Clairo and refusal
at the group. The fear that they might be
form a social
would
and stated that the Article IA(2) of
(3) of VCLT
31
protocol relating to the status of Refugees
and they know.
convention apparent forms of discrimination
the most category according to UDI-IR, 1948.
further
o thiswouldbe a travelled
Monarch AirJifÉesLtd, 1the plaintiff
InFothergill v an-craftwhich is an international carriage.
Rometo Luton in an
from
4(1)of the Warsaw Convention states that the damage
rticle intimated within seven days of the
baggage
regarding should be
The plaintiff found that his baggage was iorn and he
treceipt. he noticed
the same to the authorities. After seven days
intimated
hisarticleswere lost in the baggage and made a complaint to
that
Airline authorities compensated only for the torn
theauthorities.
baggagebut not for the lost articles on the ground that the lost
constituted damage under the Article 26(2) of the
articles
Convention,
and the plaintiff didn't comply with the article to give
notice.
Thelower court agreed with the plaintiff that the word
damagein Article 26(2) refers to physical injury to baggage and
doesnotincludeloss of articles.
Herethe issue is The airlines appealed to HL.
anicles whether the word datuage includes loss of
underArticle 26(2) of
heldthatliteral the Warsaw Convention. Here court
Partial interpretation of the word damage does. not include
lossor loss of
inten)ret contents, but it is not a correct method to
an international
textsare convention. Here, both English and French
inconclusiveas to the word
[Link], here damage includes loss of
givenotice. a purposive approach to be taken, which is to
So,
noticeis on true construction, damage includes partial loss.
mentioned. mandatory even for loss
(Article32 The court here made
of contents which is not
of of VCLT) use of travaux preparatories
International in interpreting English law which is a form
2 (19811 Convention.
Ae 251
 [Link] International Treaty 229
In Morris v KLM Royal Dutch Airlines, a'the claimant flew in
an aircraft operated by defendant
airlines. The claimant slept and
awoke when she noticed that the man sitting behind her is touching
her leftthigh- The
claimant got no physical injury, but she became
depressed and brought an actionfor damages against defendant
airlines based on the WarsawConvention, 1929 (Article 17A).
This provision makes carrier liablefor bodily injury in an aircraft.
Here the issue is whetherthe claimant can claim damages for
depression or mental [Link] held that a treaty should be
interpreted in good faith by giving ordinary meaning to the terms
of the treaty in the light of object and purpose. On the true
construction, in Article 17 bodilyinjury means physical injury.
This meaning cannot be changedand should be given the ordinary
meaning that in natural sense bodily injury means physical injury
and it shouldn't be divested. The drafters had a uniform meaning,
and the changes occurred in differentjurisdictions cannot change .
the meaning of the phrase.
In Applicant A and Anotherv Ministerfor Immigration and
Ethnic Affairs and AnotheF, refugee status was denied for a
Chinese person who [Link] claim was based on well-
founded fear of persecution by forcible sterilisation for being part
of a particular social group. Here they claimed fathers as a particular
social group because sterilisationis done to them after one child
is produced. Here sterilisationis done on the ground of ' 'One
Child Policy" at China. Here, an issue raised that whether forcible
sterilisation is regarded as a well-founded fear of persecution
under Article IA(2) of Conventionon Status of Refugees, 1951.3
Court held that the term "particularsocial group" in ghe convention
1. (2002) 2 ALL ER 565 (HL). 2. [19971 HCA 4.
3. As a result of events occurringbefore I January 1951 and owing to
well-founded fear of beingpersecutedfor reasons of race, religion,
nationality, membershipof a particular social group or political
opinion, is outside the countryof his nationality and is unable or,
owing to such fear, is unwillingto avail himself of the protection of
that country; or who, not havinga nationality and being outside the
country of his former habitualresidenceas a result of such events, is
unable or, owing to such fear,is unwilling to return •to it.
230 Lectures on -Interpretation of—Statutes• [[Link]
is wide enough to cover any form of [Link] causal
connection between well-founded fear •of persecution and
membership to a particular social group is enough to accept their
refugee Claim.
In King v. Bristow Helicopter Limited, a helicopter in an
emergency landed on helideck amidst smoke and panic. Mr. King
suffered from post-traumatic stress disorder and suffered peptic
ulcer. Mr. King claimed for damages. Here the issue arouses as to
whether his damages can be brought under Article 17 of the
Convention. 2 Here the court held that this injury comes wiLhÅn the
meaning of Article 17 of the Convention as his injury is a damage
to his brain which is itself a physical part. So, therefore, it is held
to be a physical injury and damages were awarded.

1. [2002] UKHL 7.
2. The carrier is liable for damage sustained in the event of the death or
wounding of a passenger or any other bodily injury suffered by a
passenger, if the accident which caused the damage so sustained took
place on board the aircraft or in the course of any of the operations of
embarking or disembarking.