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Foreword
Aspects of International Law: From
Interpretation to Law Making
Louis LeBel

Counsel, Langlois Lawyers
Former Justice, Supreme Court of Canada (2000 - 2014)

O

nce again, the Canadian Journal of Comparative and Contemporary
Law has published a collection of essays on important and sensitive
legal issues, this time in Public International Law. We owe this new
collection to the initiative of Professors Lorne Neudorf, Chris Hunt, and
Robert Diab and the Faculty of Law at Thompson Rivers University.
Its title is simply “Problems of Interpretation in International Law”.
This modest title understates the importance of this collection. It does
not pretend, as a textbook might claim to do, to fully review the state
of the law. Rather, it opens views on the actual life of International Law.
It reviews a number of current difficult issues and looks ahead to the
developing future of International Law. It shows that interpretation
does not operate solely as a technique to elicit meaning from text. It
means more than that as it moves beyond this stage to discuss how
interpretation impacts on the creation of the law and on the sometimes
tense relationship between International Law and domestic legal systems.
This collection looks at International Law from the perspective of
legal interpretation. Such a topic is well known to lawyers, judges, and
academics everywhere in Canadian law. Nevertheless, the nature of legal
interpretation and of its core principles, even after Rizzo1 and the rise of

1.

Rizzo & Rizzo Shoes Ltd, Re, [1998] 1 SCR 27.

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the modern principle of interpretation, remains an ongoing controversy.2
As we go through the contributions of the authors of these essays,
the problems that interpretation raises in International Law seem close to
those that must be addressed in Canadian law.
Some of the contributions focus on narrower issues which also come
up in Canadian law. For example, Judge Abdulqawi Yusuf and Dr. Daniel
Peat reflect on “A Contrario Interpretation in the Jurisprudence of the
International Court of Justice”. This method is often used and discussed to
resolve legal interpretation problems, but the analysis of the authors leads
them to a fundamental question on the nature of legislative interpretation.
Beyond the words of a text, how purposive can any interpretation be?
What is the goal of interpretation? We might ask whether it would be
possible to find a common purpose in the international community,
as readers of statutes pretend to discover an intention of Parliament or
legislatures according to the canons of statutory interpretation. In the
discussion of this question, it might be bold to assume the existence of
a community of interpretation sharing the same values and processes. It
might look more like a hope than a fact, resting on a blind faith in the
unity of International Law.
The issue of whether there exists a truly International Law also
comes up when other contributions focus on the interpretation of a key
international instrument governing the interpretation, like the Vienna
Convention on the Law of Treaties (“Vienna Convention”). Disagreements
extend to the interpretation of principles of interpretation. The paper
of Professor Juliette McIntyre raises this problem as it discusses the
strikingly different approaches between the High Court of Australia
and the Supreme Court of Canada. In their interpretation of the
Vienna Convention, both high Courts embrace a stated goal, ensuring
the uniformity of their interpretation given its critical importance in
2.

For e.g. Stéphane Bernatchez, “De la vérité à l’intersubjectivité, et du texte
au contexte vers une conception réflective de l’interprétation du droit”
in Stéphane Beaulac & Mathieu Devinat, eds, Interpretatio non cessat:
Mélanges en l’honneur de Pierre-André Côté (Cowansville: Éditions Yvon
Blais, 2011) 79.

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the development of International Law. Despite this shared purpose,
the author asserts that one court, the Supreme Court of Canada, has
shifted to a more teleological method while another, the High Court of
Australia, remains wary of moving away from a more textualist approach.
In the end, beyond the desire to foster the unity of International Law,
the methods of interpretation of International Law, as they are applied in
practice, remain distinct according to the holdings of two judicial bodies
belonging to the same legal culture, the Common Law.
Other contributions seem to lead to an acknowledgment that
International Law may take a regional colour. An interesting example is
found in the article of Professor Lucas Lixinski, “The Consensus Method
of Interpretation by the Inter-American Court of Human Rights”. The
author sets out the strengths and the drawbacks of the method as it is
used by the Inter-American Court to reinforce the application of human
rights. His analysis supports a view that the effectiveness of International
Law principles and rules varies as they are applied in different parts of the
world, either by regional judicial institutions or by national courts.
The same concern about the unity of International Law underpins
the paper of Dr. Daniel Peat on “Interpretation and Domestic Law:
The Prosecution of Rape at the International Criminal Tribunal for
the former Yugoslavia”. The author considers the relationship between
International Law and national laws when the latter are used to interpret
International Law by giving substance to international instruments.
This essay confirms a tension about the nature of International Law as
to whether it constitutes an essentially autonomous system of law or
necessarily incorporates elements of national legal systems.
In Canada, it is well established that International Law is given at
least interpretive or comparative law value. The jurisprudence of the
Supreme Court of Canada, since National Corn Growers v Canada (Import
Tribunal)3, accepts that consideration of International Law is appropriate
in the interpretation of Canadian law. For example, it seeks to ensure
consistency between Canadian laws and treaties on which they are based.
But the influence of domestic law as a source of interpretation in
3.

[1990] 2 SCR 1324.

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International Law raises more concern among a number of International
jurists, as Dr. Peat acknowledges. For example, a prominent scholar, Mr.
Antonio Cassese, both in his judicial and academic work, asserts that the
use of national laws may compromise the uniformity of International
Law. Moreover, doubts arise about the possibility of relying on truly
exhaustive reviews of the national legal systems of the world. But despite
these reservations, according to the author, the practice of International
Courts, like the International Criminal Tribunal for the former Yugoslavia
(“ICTY”), appears to confirm the relevance of a review of domestic laws
to give substance to the general provisions of international instruments
like the Rome Treaty or the Statute of the ICTY.
The relationship between International Law and domestic laws
stands at the center of other essays as some of the authors move
beyond strict issues of interpretation; they focus on the nature of that
relationship and on the scope of its impact on International Law and
on national legal systems. In his comments on a sad chapter of the legal
and political history of Canada, Mr. Gib van Ert reviews the attempts
of British Columbia, a century ago, to exclude Chinese and Japanese
immigrants. His contribution shows that, on one side, International Law,
as found in treaties between the British Empire and Japan, contributed
to the definition of the scope of provincial and federal powers in a former
British colony like Canada. On the other side, it illustrates how national
law may limit the effectiveness of validly concluded treaties. The treaties
with Japan needed to be received into the domestic order of Canada to
become effective. The treaties between the British Empire and Japan were
undoubtedly law governing their relationship within the international
order as independent political actors. But at the same time, within the
Dominion of Canada, these treaties would not be binding law until they
became part of the domestic law of the Dominion of Canada. A twoway relationship between the different legal orders is needed to create
an effective or holistic legal system. This paper suggests that legal orders
situated at different levels do not easily remain totally autonomous.
Two other contributions focus on the use of interpretation to identify
sources of law or even to create law. This process of creation involves the
discovery of new materials or sources that finally contribute to defining

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and fleshing out the rules and principles of International Law and to
moving it into new directions.
For example, Professor Marie-Claire Cordonier Segger explores
in depth the nature of the interpretative process as such in her paper
“Inspiration for Integration: Interpreting International Trade and
Investment Accords for Sustainable Development”. She focuses on the
quest for relevant materials in order to bring into the interpretation
of economic agreements concerns about problems of sustainable
development. Interpretation becomes a process of acknowledgment of
relevant sources to broaden the scope of the agreements. This requires
the recognition of a variety of soft law and of consensus arising out of
it. It is interpretation in the sense that it adds to the sources used in the
interpretation process. This approach invites us to look beyond the text of
agreements to the conduct or practice of international actors. It includes
a range of emerging standards in the process, but leaves open the problem
of the triggering points at which those developing concerns acquire a
normative effect because they become part of international customs or
find their way into the interpretation of a text.
The problem of the sources of interpretation in international
agreements is raised by Professor Joshua Karton in another context
in his paper “Choice of Law and Interpretive Authority in InvestorState Arbitration”. First, the author acknowledges a growing backlash
against investors’ state arbitration. He then looks for a solution in a new
approach to the interpretation of the instruments governing this form
of arbitration. As the author points out, this arbitration process faces
a problem of democratic legitimacy in many of the states that entered
into such agreements. These concerns demonstrate the importance of
the connections between domestic and International Law, in order to
develop the interpretative principles of such agreements. According
to the author, International Law, in such a context does not stand in
isolation. Preserving the legitimacy of this particular form of arbitration
requires that the process of interpretation give more respect to the law
of the states that entered into these agreements to more clearly define
rules of choice of law and interpretation governing their application. It
does suggest that the application of International Law in such a context

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may have to reflect the presence of communities that states represent
and their values. The preservation of a link between these values and the
interpretation of such agreements is required to reach a proper balance
between private and public interests.
Finally, in the paper of Professor Rumiana Yotova, “Challenges in the
Identification of the “General Principles of Law Recognized by Civilized
Nations”: The Approach of the International Court”, the approach of
the international laws considers a classic problem of interpretation. It
discusses the view and the question of the International Court of Justice
on the interpretation of article 38(1)(c) of the Statute of the International
Court of Justice (“Statute of the International Court”) which states that
the general principles of law common to civilized nations are a source
of law. It discusses how those principles can be recognized and accepted
for the purpose of the application of this provision of the Statute of the
International Court.
The essay of Professor Yotova raises concerns about the scope of the
process of interpretation. The review of the jurisprudence of international
courts of justice confirms tensions between different methods of
interpretation in International Law. One would be based essentially on
consideration of International Law itself and another would rely on a
more comparative approach extending to national legal systems. These
disagreements reflect conflicts between the strands of opinion about the
scope of the interpretative process itself.
In the end, in the application of a provision like article 38(1)(c), the
problem of interpretation concerns the development of the substance
of legal rules through a process of identification of the sources of law
themselves. As the author shows, this highly complex process goes
beyond abstract word play. It seems to show that the life of the actors of
the international community actually becomes a main source of law, even
in the interpretation of critically important instruments like the Statute of
the International Court or of the Vienna Convention.
Interpretation is not formally acknowledged as a source of law in
such instruments, but it is recognized as a necessary and legitimate
process, reflecting the life of the actors participating in the development
of the international community, as it seeks to determine the sources of

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law, their nature and their reach. The process of interpretation raises a
basic question: how is law born and what is law? Is there a common
International Law? How worldwide is International Law?
The problems raised in this collection of papers illustrate the richness
and diversity of International Law. Their authors do not close the issues,
but instead open them to new chapters in their evolution.