The Value of Comparative Law Approach in Treaty Interpretation

Abstract

In legal interpretation (including statutory interpretation and constitutional interpretation) in domestic context, the comparative approach is commonly adopted by a domestic court so as to look into the practices and jurisprudence in other jurisdictions and to find out whether similar interpretation can be applied to the interpretation of its legal or constitutional provisions. But treaty interpretation is guided by the Vienna Convention on the Law of Treaties (VCLT). The comparative approach is not a commonly used method for treaty interpretation and is not directly reflected in the VCLT. The most important rules in the VCLT are that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their contexts and in the light of its object and purpose (as provided in VCLT Article 31.1) and that recourse may be had to supplementary means of interpretation in order to confirm the meaning or to determine the meaning under certain circumstances (as provided in VCLT Article 32). This chapter will argue that a comparative approach can still be brought into the operation of the VCLT concerning the determination of the “ordinary meaning” of an interpreted term through comparing the ways that the same or a similar term is interpreted in different treaties. The comparative approach can also be considered as a “supplementary means of interpretation” provided in VCLT Article 32 so that the methods of treaty interpretation adopted under different treaties can be introduced to confirm the meaning which is identified under Article 31.1. In essence, the comparative approach is of practical usefulness in the conduct of treaty interpretation.