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7 Aust. YBIL 129 (1976-1977)
Current Trends in Treaty Interpretation and the South African Approach

handle is hein.journals/ayil7 and id is 159 raw text is: Current Trends in Treaty Interpretation and the South African Approach* R. P. Schaffer Lecturer in Law, University of New South Wales Introduction To be of any value, a study of the South African approach to treaty interpretation should not take place in splendid isolation but should instead be set against current international practice in this regard. It is therefore proposed to examine briefly the general rules of treaty inter- pretation followed and accepted by the international community and to compare the South African approach with this. Even prior to the Vienna Convention on the Law of Treaties' different attitudes towards this problem had been adopted by States and international lawyers, and a detailed body of working rules had come into existence. The International Law Commission aimed to codify the main rules for the guidance of States and international tribunals. Articles 31 and 32 of the Vienna Convention are the results of its efforts. A strong element of progressive development is present in these articles, which by no means entirely supersede the rules in practice before the conclusion of the Convention; they should rather be regarded as complementary to the rules already in force. In any event these articles are themselves subject to interpretation. The South African approach to treaty interpretation is a textual approach. It clearly mirrors the South African attitude towards municipal law and the judicial function in general and has its roots in the positivist legal philosophy. In the municipal sphere it is to be regretted that very few treaties have been subject to interpretation by the local courts. In those rare instances when municipal courts have considered the inter- pretation of a treaty, they have addressed the problem primarily as one of statutory interpretation rather than treaty interpretation. This is reason- able in view of the fact that treaties must be incorporated into municipal law by legislative action before they begin to operate locally. The South African approach to treaty interpretation has manifested itself mainly in the international sphere through arguments submitted on a number of occasions to the International Court of Justice in the various South-West Africa Advisory Opinions and judgments. These submis- sions, therefore, form the primary basis of this study. It will become apparent that the South African approach has, through the years, * This article formed part of the author's thesis which was awarded the degree of PhD by the University of Witwatersrand. 1. On 28 December 1979 the government of Togo deposited its instrument of accession with the Secretary-General of the United Nations. This accession brought to thirty- five the number of instruments of ratification and accession deposited with the secretary-general in respect of the Convention and had the effect of bringing the Convention into force in accordance with Article 84.

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