The Origins of Interpretive Canons in Domestic Legal Systems

Abstract

This chapter examines the domestic origins of the canons of construction used in treaty interpretation. It shows that these canons typically draw on domestic principles for statutory and contractual interpretation. Section I surveys general themes emerging from specific canons of construction, and provides a summary of some key links between the canons of construction and foundational sources such as the Roman Law Digest and the work of early international lawyers, such as Grotius, Pufendorf, and de Vattel.

Section II then zooms into some specific canons and their domestic origins. It examines the links that each canon has to the common and civil law traditions (and other sources), and the extent to which international tribunals have acknowledged the domestic origins of these canons. Just like national courts unconsciously rely on contract and statutory analogies in interpreting treaties, this section shows that international courts and tribunals often rely on these canons without awareness of their domestic origins, and even though they are not found explicitly in the Vienna Convention on the Law of Treaties.

Keywords: treaty interpretation; canons of interpretation; VLCT; effectiveness; contra proferentem; ejusdem generis; expressio unius; generalia specialibus non derogant; in dubio mitius

JEL Classification: K33