Treaty interpretations - the beauty of law

I do not blog on issues of international law in general - whether it is public international law or private international law. However, this note in the latest Harvard Law Review on Canada's claims on the Northwest passage was just too good to resist. The note brings out the claims and counter-claims on the issue of the rights of Canada on the Northwest passage, which is a strait between the Pacific and Atlantic Oceans.

The map below makes the issue clear.

(Courtesy - https://www.britannica.com/place/Northwest-Passage-trade-route)

Canada claims that the strait is within its territorial waters and it has the exclusive right to determine sea travel within that route. The United States differs and opines that international navigation is possible without Canadian consent.

The note brings out the beauty of "treaty interpretation" and the lengths to which seemingly simple provisions can possibly be stretched.

At the heart of the "dispute" is Part III of the United Nations Convention on the Law of the Seas ( UNCLOS ) which relates to straits used for international navigation. Article 34(2) states that the sovereignty or jurisdiction of the States bordering the straits is exercised subject to this Part and to other rules of international law. Therefore, even assuming the strait is within the territorial limits of Canada, it would be subject to this part which deals with the rights of international passage.

Article 37 of the UNCLOS states that this section applies to straits which are used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone. Therefore, in straits referred to in article 37, there shall be the right of all ships and aircraft to enjoy the right of transit passage, which shall not be impeded except under certain conditions.

Further as per article 38(2), transit passage means the exercise in accordance with Part III of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone. 

The Note takes us through the interpretation of what "which are used for international navigation" means. In other words, should the strait have been historically used, presently used or have a potential to be used for international navigation?

A plain reading of the provision indicates that it should be historically being used as an international navigation route. There must be a history of usage that indicates that apart from connecting two high sea parts, it was infact being used as an international route. What if such a route was never used in the past.It had the potential but was never used in practice? Does it still qualify for this international transit? Is the mere fact that it could be used in future entitle States to claim that it is subject to Part III of the UNCLOS III.

If one were to argue that it is pretty plain and simple - "are used" indicates the fact that they are being presently used. However the Note disagrees:

The proper interpretation of this phrase, however, is unclear due to the way that it is structured. Because the phrase “straits which are used for international navigation” is in the present tense, there is not a strong indication, on the text’s face, as to whether the drafters intended that the test be one of historic or potential use. Since both readings are common in everyday language, we must refer to the context of statements that use the phrase “are used” to determine whether the statement refers to historic or potential use.

So the historic use was rejected and the potential of "potential use" was explored.

Evaluating Article 37 on its own, one could reasonably argue that the drafters intended that a particular strait must have been historically used for international navigation. One could also argue that the strait must have the potential to be used for international navigation.A third and equally plausible interpretation would be that the test should run forward in perpetuity: rather than the test being “frozen in time” when UNCLOS III entered into force, the use of present tense could indicate that the test should always be conducted at the time of a dispute.

Ultimately, the meaning of Article 37 is ambiguous. The use of present tense does not strongly favor the historic-use test, the potential-use test, or even the third “current-use test.” All interpretations are reasonable if the language of Article 37 is read in a vacuum. It was for situations like this that the drafters of the VCLT included context, object and purpose, and subsequent practice as interpretive tools available to the tribunal. Given the lack of clarity in Article 37 following this plain meaning analysis, the interpretation must turn on other methods.

The Note concluded that the potential use of the strait for international navigation should be the underlying determinant for establishing whether there is a right of international transit.

As established in Part II, the appropriate inquiry to determine whether a strait passes the functional test is one of potential use: Does the strait have the potential to be used in international navigation? Considering that international shipping through the Passage is currently taking place, has increased exponentially in the past decade and is expected to continue to do so, there is no question that the Passage would pass the potential-use test. There is hardly better evidence for the potential of something to occur than the fact that it is currently occurring.

136. See HEADLAND ET AL., supra note 21, at 1and is expected to continue to do so, there is no question that the Passage would pass the potential-use test. There is hardly better evidence for the potential of something to occur than the fact that it is currently occurring.

Strange that the historical rule was in a way used to justify the applicability of the potential use test.What if no shipping was taking place at all? What id all historical shipping was taking place with Canada's consent? 

An interesting aspect of the analysis while determining the context of the provisions of UNCLOS was that the reality of Canada's geographical vastness of a coastline and the potential of economic activity along these routes was a guiding factor. The Note opines:

Canada’s territorial sea is one of the largest in the world, with thousands of miles of coastline. At the same time, the Northwest Passage has the potential to become one of the most economically significant straits in the world as Arctic ice continues to recede. Considering the object and purpose of the Convention, it would be counterintuitive to construe the ambiguity in Article 37 in a manner that potentially closes off the Northwest Passage to all international travel, while simultaneously granting Canada exclusive rights to regulate all commercial activity in the Passage (on top of its already immense territorial sea). Such a reading of Article 37 clearly flies in the face of the central bargain of the Convention, struck to strengthen national sovereignty while preserving freedom of navigation — not at the expense of freedom of navigation.

Should the reality of the party's geographical reality as well as potential for economic trade be factors to interpret provisions which may otherwise reflect a different plain reading?The object and purpose of the Convention are relevant when the plain reading is ambiguous. However, it does give scope for subjective interpretations of the need to maintain a balance as well as what was actually intended. 

And that is what this Note brought about - the beauty and scope of treaty interpretation. The Appellate Body of the WTO today has been in a crisis partly because of a charge that it has interpreted rights and obligations of Members way beyond what the WTO Agreements intended it to be. Judicial interpretation of provisions always carries with the element of diverse interpretations. That is the nature of interpretation itself. The Vienna Convention on the Law of Treaties that provides us with the guide on how international treaties need to be interpreted goes away from the plain reading where it is not possible to do so.

I was looking at what the Appellate Body has said so far about interpreting the provisions of WTO agreements. Some examples:

In Japan — Alcoholic Beverages II, p. 12, DSR 1996:I, p. 97 at 105, the Appellate Body stated:

Article 31 of the Vienna Convention provides that the words of the treaty form the foundation for the interpretive process: “interpretation must be based above all upon the text of the treaty”. …

In EC — Hormones, para. 181

… The fundamental rule of treaty interpretation requires a treaty interpreter to read and interpret the words actually used by the agreement under examination, not words the interpreter may feel should have been used.

In India — Patents (US), para. 45

… The duty of a treaty interpreter is to examine the words of the treaty to determine the intentions of the parties. This should be done in accordance with the principles of treaty interpretation set out in Article 31 of the Vienna Convention. But these principles of interpretation neither require nor condone the imputation into a treaty of words that are not there or the importation into a treaty of concepts that were not intended.

In US — Shrimp, para. 114, the Appellate Body opined:

… A treaty interpreter must begin with, and focus upon, the text of the particular provision to be interpreted. It is in the words constituting that provision, read in their context, that the object and purpose of the states parties to the treaty must first be sought. Where the meaning imparted by the text itself is equivocal or inconclusive, or where confirmation of the correctness of the reading of the text itself is desired, light from the object and purpose of the treaty as a whole may usefully be sought.

Back to the Northwest passage case. Were the words really that unambiguous? Who decides whether the plain reading is clear or not?  The phrase "This section applies to straits which are used for international navigation...",  was open to such vivid interpretations. Some would argue the vagueness was built in to push the dispute to another day. A legal treat and a claimant's nightmare!