SSRN Id2572432

Draft: Do Not Cite without Permission of Author
Helmut Philipp Aust and Georg Nolte (eds.),

Domestic Courts and the Interpretation of International Law: Converging Approaches?
(Oxford University Press, 2015)
TREATY INTERPRETATION IN INDIAN COURTS:

ADHERENCE, COHERENCE, AND CONVERGENCE
Vik Kanwar*
ABSTRACT
This chapter surveys whether and how courts in India apply VCLT rules, particularly Articles 31-33,
when they interpret treaties. It looks at both adherence to Vienna rules (either through nominal
adherence or through the adoption of corresponding methods), as well as coherence of interpretive
principles across different kinds of cases and tribunals. Insofar as India is not a signatory to the VCLT,
the use of similar rules can be viewed as either application of customary international law, or the
adoption of convenient guidelines. Within India, the VCLT is referred to most frequently in cases
involving the interpretation of Double Taxation Avoidance Agreements (DTAAs), and it is asked
whether this constitutes a specialized regime or whether these cases should be taken as an indication of
a more general approach.
I. INTRODUCTION
The central questions of this volume are whether domestic courts make use of
international rules of treaty interpretation as they are set forth in Articles 31-33 of the
Vienna Convention on the Law of Treaties (VCLT),1 and whether they do so in a way that
demonstrates a possible convergence between countries in adopting common principles of
treaty interpretation. In order to answer any questions about convergence, however, one
*
The Author thanks Georg Nolte, Helmut Philipp Aust, and Alejandro Rodiles for providing the impetus to
undertake this research; Priya S. Gupta, M. Gandhi, Khagesh Gautam, and Kinshuk Jha for consulting from their
respective fields; and Mitra Arabandi, Devasheesh Bais, Samhith Malladi, Mohanakrishna C., Nisha Raman, Sanjika
Dang, and Akshay Sharma for their valuable research assistance.
1
The Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980)
1155 UNTS 331 (VCLT)
Electronic copy available at: http://ssrn.com/abstract=2572432

must first ask questions about the adherence to and the coherence of international law in a
particular jurisdiction. The present chapter applies these questions to India, surveying how
Indian courts have approached international law, and in particular whether and how the
courts apply VCLT rules when they interpret treaties.
Indian courts have recognized that treaties are part of public international law, and are
thus subject to interpretation according to principles of international law.2 They have also
recognized to varying degrees that the relevant rules for the interpretation of international
agreements are laid down in the VCLT.3 In the interpretation of Double Taxation
Avoidance Agreements (DTAAs), in particular, reference to the VCLT is canonical (and it
is claimed the rules are applicable as customary international law).4 In other circumstances,
the courts apply similar methods of interpretation without making reference to the VCLT.5
Insofar as India is not a party to the VCLT, it is important to determine (1) whether the
courts are applying the VCLT, especially Articles 31-33 as generally accepted principles of
customary international law; (2) whether they are applying VCLT principles, but only as
convenient tools; (3) whether they are applying parallel principles drawn from other
sources; (4) whether they are applying dissimilar domestic rules; or (5) whether they are
doing all of these in an eclectic or incoherent manner. Across these possibilities, there may
be situations where the VCLT is explicitly invoked and others where it is not.
In this chapter, these questions are framed first in terms of different kinds of adherence
to VCLT principles (nominal adherence or adherence through corresponding methods),
and then in terms of the coherence of these interpretative practices across different kinds of
cases. Coherence need not entail adherence: one could just as well imagine a general
rejection of the binding status of VCLT norms as a coherent practice. I conclude, however,
that the present situation is neither one of a coherent rejection or acceptance, but one of
very low coherence. What we find is not just a local tradition adding to the pluralism of
national approaches, but internal fragmentation and differentiation: this poses multiple
challenges to the possibility of convergence. I argue, however, that these fragments are
2
Union of India & Anr v Azadi Bachao Andolan & Anr (2004) 10 SCC 1 (‘Rules of interpretation in respect of
international treaties are different to those applicable in respect of domestic laws’)
3
National Legal Services Authority (NALSA) v. Union of India & Others (2014).
4
ibid
5
Michael P Van Alstine, ‘The Role of Domestic Courts in Treaty Enforcement: Summary and Conclusions’ in
David Sloss (ed), The Role of Domestic Courts in Treaty Enforcement (CUP 2009) 589
Electronic copy available at: http://ssrn.com/abstract=2572432

neither irretrievable ruins nor the building blocks of an inevitable common project. They
are however, a productive starting point for an increasingly coherent understanding of
international law by the Indian courts. Before taking up this analysis, however, the basic
features of the place of international law in the Indian legal system should be taken up.
II. THE INTERPRETATION OF INTERNATIONAL LAW IN THE INDIAN COURTS
A. Institutional Background
If, as some authors in this volume have concluded in their own case studies, ‘questions
of method and interpretative approach are largely dependent on political and social
conditions,’6 then India will prove a complex case study. India has a dynamic political
culture rooted in an extensive constitutional framework, legal and cultural pluralism,
democracy, an entrenched bureaucracy, and a vacillation between formal and informal
means supporting social justice and economic development. Much has been made, for
example, of India’s innovations in Public Interest Litigation, which lowers standing
requirements while broadening the judiciary’s remedial powers primarily to remedy
constitutional violations. This is thickened by comparative, foreign and international law
referenced. The common law heritage is attested to in the citation of cases from the
commonwealth in particular, as well as non-commonwealth common law jurisdictions, such
as the United States. A recent past Chief Justice of India has stated, ‘(i)n recent years, the
decisions of Constitutional Courts in common law jurisdictions such as South Africa,
Canada, New Zealand and India have become the primary catalyst behind the growing
importance of comparative constitutional law.’7 Indian courts look to international and
foreign law sources in extending constitutional protection to several socio-economic
entitlements and causes, such as environmental protection, gender justice, and good
6
Helmut Philipp Aust, Alejandro Rodiles and Peter Staubach, ‘Unity or Uniformity? Domestic Courts and
Treaty Interpretation’ (2014) 27 Leiden Journal of International Law 75, 108
7
Chief Justice KG Balakrishnan, ‘The Role of Foreign Precedents in a Country’s Legal System’ (Lecture,
Northwestern University, 28 October 2008)
<http://www.supremecourtofindia.nic.in/speeches/speeches_2008/28%5B1%5D.10.08_Northwestern_University_le
cture.pdf> (last accessed January 30, 2015)
3
governance, among others. International law appears as an occasional cog among these
complex, interlocking and sometimes uncoordinated gears.
The Indian Constitution refers to the creation and implementation of international law
by the political branches, as well as its interpretation by the judiciary. In the absence of any
specific law, India has followed the British and Commonwealth traditions in making and
implementing treaties. ‘In this tradition, ‘the executive claims the privilege to decide
whether or not to make and ratify a treaty.’8 ‘The legislature comes into the picture only if
the treaty calls for any legislation to facilitate its implementation within the country or any
specific allocation of financial resources.’9 In addition it has evolved a distinctive
jurisprudence under article 51, whereby courts have been active in interpreting statutory
and constitutional obligations with reference to international law, though very rarely do
they explicitly interpret a treaty in this process. The Central government acts, in all matters
(including treaty-making), through the President of India, who may exercise those powers
or (as is usually the case) delegate it to appointed officers.10 For example, tax treaties are
typically negotiated by high-level revenue officers from the Department of Revenue of the
Ministry of Finance. The President, on the aid and advice of the Council of Ministers,
ratifies the treaties.11
There is no ‘treaty regulating legislation’ in India. International treaties do not
automatically become part of national law in India. Under the doctrine of ‘transformation’
(consistent with what international lawyers would call ‘dualism’) separate legislation is
required for the implementation of treaty-based international law in India.12 Once
‘transformed’ however, treaties become just as binding as any domestic law.13 The legal
system includes courts as well as other tribunals.14 This distinction is relevant insofar as
international law enters both courts and other tribunals. The Supreme Court has said, ‘All
8
Sunil T Rao, ‘India’ in Ralph Gaebler (ed), Sources of State Practice in International Law (Brill 2014);
Constitution of India 1950, art 52, art 53, art 246(1)
9
ibid
10
Constitution of India 1950, art 53
11
Constitution of India 1950, art 74
12
Jolly George Varghese & Anr v The Bank of Cochin (1980) 2 SCC 360
13
Customary international law must also be transformed in some way, and this is usually left to the courts. This
is a separate issue that will not be taken up here.
14
The relevant interpretative communities for tax treaties include revenue officers as judges on the Income-Tax
Appellate Tribunal (ITAT) as well as the courts.
4
Tribunals are not courts, though all courts are Tribunals.’15

At the same time, there is no judicial policy on treaty interpretation. As André
Nollkaemper has said elsewhere in this volume, ‘(n)ational courts neither operate fully in
the national nor in the international legal order, but rather in a mixed zone where they are
subject to competing loyalties, commitments, and obligations.’16 As with foreign law, it is
brought into play wherever it is considered supportive of constitutional rights.17
International law is referenced much in the way foreign law is, for persuasive support,
sometimes with reference to Article 51 of the Constitution.18 Under Article 51
jurisprudence, the courts have developed the practice of looking at treaties as external aids
to interpreting domestic law.19 Wherever necessary, Indian courts can look into
international conventions as an external aid for construction of a national legislation.20 The
use of substantive international law has been robust in domestic adjudication, whereas the
reference to international principles of treaty interpretation has been cordoned off to one
particular area. Insofar as there is increased reference to these principles in mundane
matters such as the interpretation of double taxation treaties and bilateral investment
treaties, and more or less faithful adherence in other context, the situation of the domestic
courts is not very different from the international sphere itself: oscillating between
fragmentation and systemic integration.
B. Interpretation of Implementing Legislation
Domestic courts can play at least two roles in interpreting treaties: (1) interpreting the
legislation implementing a treaty; or (2) in case of ambiguity, interpreting the treaty
15
Harinagar Sugar Mills Ltd v Shyam Sundar Jhunjhunwala & Ors (1962) 2 SCR 339
16
See, in this volume, André Nollkaemper, ‘Grounds for the Application of International Rules of Interpretation
in National Courts’
17
SP Sathe, ‘Judicial Activism: The Indian Experience’ (2001) 6 Washington University Journal of Law and
Policy 29
18
Under Article 51 of the Constitution of India 1950 (directive principles) the State shall endeavour to ‘promote
international peace and security; maintain just and honourable relations between nations; foster respect for
international law and treaty obligations in the dealings of organised people with one another; and encourage
settlement of international disputes by arbitration.’
19
PN Krishanlal v Government of Kerala (1995) Sup (2) SCC 187
20
Law Commission of India, A Continuum on the General Clauses Act, 1897 with Special Reference to the
Admissibility and Codification of External Aids to Interpretation of Statutes (Law Com No 183, 2002)
5
provisions along with the legislation implementing a treaty in domestic law.21 The present
article centers upon the second of these roles. The first role, the use of treaties in the
interpretation of domestic law, while not precisely the primary question, is nonetheless
instructive in understanding the way Indian courts view international law.22 Because courts
rarely get around to interpreting the underlying treaties, while looking at implementing
legislation, much more has been written on the interpretation of the legislation itself. A
number of interpretive presumptions support the proposition that domestic Law must be
interpreted in accordance with, and conforming to a meaning consonant with treaties and
other international obligations.23 Again, these interpretive presumptions, while interesting
from the point of ‘harmonization’ and suggestive of the possibilities of international law in
the domestic order, are ultimately questions of statutory construction, and not of treaty
interpretation. Also the international norms being applied are not the rules of treaty
interpretation, but substantive international law. Ambiguous legislation will be interpreted
in the way which is most consistent with the international obligations of India, including
unincorporated treaties (such as human rights treaties). In so far as a treaty has been
incorporated by attaching all or parts of it to legislation, the courts should interpret it
according to the rules of international law, in particular Articles 31-33 of the VCLT (even
though the Convention has not been incorporated).
Article 51 has led to an interpretive presumption in reading statutes that they should be
read in consonance with international obligations, specifically treaty obligations that they
might be implementing.24 Art. 51(c) of the Constitution specifically mentions both
‘International Law’ and ‘Treaty Obligations.’ According to C.H. Alexandrowicz the two are
to be understood separately, because the expression ‘International Law’ refers to Customary
International Law and ‘Treaty Obligations’ refer to obligations arising out of International
21
Narendra Kadoliya, ‘A Paradigm Shift in the Role of Domestic Courts in Implementing International Treaty
Provisions: An Indian Perspective’ <http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=29c6ccdf-
f94e-42e5-8bdd-64f58d2a962c&txtsearch=Subject:%20Miscellaneous> (Last accessed January 15, 2015)
22
This also involves an exercise of indirect interpretation of international law. See in this volume: Dire Tladi,
‘Interpretation of Treaties in an International Law-Friendly Framework: the Case of South Africa’
23
Nihal Jayawickrama, ‘India’ in David Sloss (ed), The Role of Domestic courts in Treaty Enforcement (CUP
2009) 247-264
24
Kesavananda Bharati v Union of India (1973) 4 SCC 225; ADM Jabalpur v Shivakant Shukla (1976) 2 SCC
521; Kubic Dariusz v Union of India 1990 AIR 605; Gramophone Co of India Ltd v Birendra Bahadur Pandey 1984
SCR (2) 664
6
Treaties.25 The two are differentiated but also treated on the same footing. This obligation,
however, is classified among ‘Directive Principles of State Policy’ which are non-justiciable,
but which must be read harmoniously with fundamental rights.26 The non-justiciability of
Article 51 does not preclude political branches to strive to achieve the objectives of the
treaty, which has been ratified in good faith through executive or legislative actions; nor
does it preclude the judiciary from interpreting India’s international obligations.
In a culture where judicial activism is widely accepted, international law has also been
enlisted to fill gaps in the domestic law. The relevance of international law and treaty
obligations in strengthening and effectuating fundamental rights has been well addressed by
Indian constitutional jurisprudence.27 In the Vishaka v. State of Rajasthan (1997) case, the
leading case on sexual harassment, the Supreme Court used the Convention for the
Elimination of All Forms of Discrimination against Women (CEDAW) as an aid to
interpret rights already guaranteed in the Indian Constitution, stating that ‘the contents of
the International Conventions and norms are significant for [their] interpretation.’28 Again,
Article 51 jurisprudence speaks less to the interpretation of treaties than to the
interpretation of statutes implementing treaties, but it also signals something about the
courts’ role in interpreting international law. At this level of detail, discussion of the VCLT
is largely missing. The court’s jurisprudence on treaty interpretation, then, is largely
confined to the interpretation of tax treaties. What is well understood both in judicial
practice and the academic literature is not treaty interpretation by Indian courts, but rather
the reciprocal process of treaty enforcement with constitutional and statutory
interpretation.29 The section below seeks to fill the remaining gap.
III. TREATY INTERPRETATION IN INDIA
To discuss treaty interpretation properly we must study what the courts do, and most
25
C.H. Alexandrowicz, International Law in India (ICLO 1952) 292
26
State of Madras v Champakam Dorairajan AIR 1951 SC 226; Unni Krishnan v State of Andhra Pradesh
(1993) 1 SCC 645
27
Nilabati Behera v State of Orissa (1993) 2 SCC 746; People’s Union for Civil Liberties v Union of India
(1997) 3 SCC 433; Vishaka & Ors v State of Rajasthan & Ors (1997) 6 SCC 241
28
Vishaka (n 27)
29
VO Tractoroexport, Moscow v Tarapore & Company & Anr (1969) 3 SCC 562
7
specifically how they apply Articles 31-33 of the VCLT. India is not a state party to the
VCLT, but like several countries that have not ratified the Convention, it has used similar
principles of treaty interpretation in international as well as domestic proceedings wherever
treaties must be applied or interpreted.30 The Supreme Court in the case of Ram Jethmalani
v. Union of India31 reaffirms that the convention contains principles of customary
international law. The Supreme Court in the context of discussing Article 31 held that,
while India is not a party to the VCLT, this treaty contains many principles of customary
international law, and the principle of interpretation of Article 31, ‘provides a broad
guideline as to what could be an appropriate manner of interpreting a treaty in the Indian
context also.’32 Though this might seem conclusive, and support the broad consensus
developing in international jurisprudence,33 it is important to note that in less formal
settings Indian judges will admit that applying the VCLT as customary international law is
little more than treating it as ‘a tool of interpretation’ and as having ‘persuasive value.’34
IV. ADHERENCE AND COHERENCE
The central concern of this chapter is whether the Indian courts demonstrate an
adherence to VCLT rules when they interpret treaties, and whether they do so coherently.
For such purposes, adherence is defined as evidence of using the VCLT rules, and
coherence as consistency of an approach across cases.35 If it is clear that the courts are
30
At the time of the drafting of the VCLT, the ILC included Indian jurist Radhabinod Pal (famous for his dissent
in the Tokyo Tribunal after the Second World War), who expressed the relation between ordinary meaning and
intention in this way: ‘in order to find out the real meaning of a treaty, it was necessary to consider the intention of
the parties in so far as those parties had succeeded in expressing it in the language used by them in the treaty.’ ILC
Yearbook 1964/I, 286.
31
Ram Jethmalani & Ors v Union of India & Ors (2011) 8 SCC 1
32
ibid
33
Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia) (Merits) [2002]
ICJ Rep 625;Case Concerning Avena and Other Mexican Nationals (Mexico v United States of America) (Merits)
[2004] ICJ Rep 12
34
Rachel Saw, ‘Report of the 68th Congress of the International Fiscal Association, Mumbai – Remarks by
Justice Dr. Vineet Kothari’ (IFA, 14 October 2014)
<www.ifa.nl/Document/Congress%20Mumbai/ShortProc2014Mumbai.pdf> accessed 26 February 2015
35
Thomas M. Franck, The Power of Legitimacy Among Nations (OUP 1990) 24; My use of these terms is
inspired by but not identical to Thomas Franck’s more specific uses. For Franck, coherence is ‘consistency with
other rules of the legal system, as well as with the more abstract principle of substantive equality in application to
those it addresses’ and adherence is ‘adherence to a framework of secondary rules that define how rules are to be
made, interpreted and applied.’
8
actually applying the VCLT both where they are invoking it explicitly and where they are
not, there would be both a high level of coherence and a high level of adherence to VCLT
rules. In this case, all situations would be governed by the international rules, and there
would be a strong presumption that the rules are being applied as customary international
law.36 There is no evidence of this however. A slightly more plausible reading is that there
is indeed a high degree of coherence, but only insofar as there is very little that counts as
adherence. Here, evidence of adherence can be explained away or minimized. In those cases
where the VCLT is invoked, it is being used merely as a ‘tool’ of interpretation and not as a
source of law; in those cases where there are similarities but the VCLT is not invoked, the
resemblances are merely incidental and do not indicate adherence to international rules.
The actual situation, I argue, is neither of these alternatives (high coherence combined with
either high or low adherence), but rather of a low level of coherence at this point.
With that said, there are signals towards an increasing adherence to the VCLT, and no
signals towards rejecting it altogether. While, for reasons explained below, it is safe to say
that the Indian courts would accept major provisions of the VCLT as customary
international law, it remains for us to ascertain whether the application of Articles 31-33
will consistently shape their interpretive practice.
V. TWO KINDS OF ADHERENCE
There are two contexts in which adherence to Articles 31-33 can be seen, which we can
call adherence to corresponding methods, and nominal adherence.
A. Corresponding Methods
In a broader context, in major cases decided by the Supreme Court, there is reference to
international treaties, and there is some attempt to interpret them. Here, the sources of
domestic methods of interpretation are not always clear, but they can often be found to be
consistent with the principles reflected in the VCLT. That is, in conformity with the basic
principle in Article 31(1), courts have approached treaty interpretation beginning with an
36
This could be offered as evidence towards convergence between India and other jurisdictions.
9
examination of the text but informed by the objects and purposes of the treaty. The VCLT
is not explicitly mentioned. Here the practice proceeds from an analogy to statutory
interpretation.
B. Nominal Adherence
In a narrower context [of tax cases], the interpretive rules set out in Articles 31 and 32
VCLT have been recognized and applied by the Supreme Court of India and other Indian
courts. Express reference to articles 31 and 32 has been seen only in tax cases involving
bilateral Double Taxation Avoidance Agreements (DTAAs). Here, courts’ ability to read
‘international tax language’ relies explicitly on the use of the VCLT, and excludes any
analogy to domestic principles statutory interpretation. So in one sense or another, there is
some kind of adherence that can be found both in the case of the general cases, and in the
DTAA cases.
The problem is that the two contexts of adherence proceed from opposite premises. In
the broader context there is an analogy to statutory interpretation; in the narrower context,
there is an outright rejection of the analogy to statutory interpretation, and an insistence on
the specificity of international rules. If we look at the practice of the Supreme Court alone,
and decisions that fall in both categories, we can see a will towards adherence, even though
coherence is still lacking. In a 2003 DTAA case, Azadi Bachao Andolan & Anr., the Court
insisted, ‘Rules of interpretation in respect of international treaties are different to those
applicable in respect of domestic laws.’ Other DTAA cases both within and beyond the
Supreme Court seem to make clear that the rules of interpretation are governed by the
VCLT. Outside the DTAA context, the Supreme Court has been more circumspect about
the applicable rules of interpretation. In a more recent case, National Legal Services
Authority (NALSA) v. Union of India & Others (NALSA)—a celebrated judgment on
transgender rights—the Supreme Court for the first time put the matter directly: ‘The
Interpretation of International Conventions is governed by Articles 31 and 32’ of the
VCLT.37 If one looked only at Union of India v Azadi Bachao Andolan38 (Azadi Bachao)
37
National Legal Services Authority v Union of India and Ors (2014) 5 SCC 438
38
Azadi Bachao (n2)
10
and NALSA, the court’s commitment to VCLT rules would seem clear, but at least in the
latter case, the court shows no evidence of actually using the VCLT. Where there is
adherence, it is imperfect, and the problem again is that the two contexts of adherence have
contradictory bases.
VI. CORRESPONDING METHODS: DOING WITHOUT SAYING
Courts may adopt methods that correspond closely to those of the VCLT; indeed they
may consistently arrive at a result that is largely congruent with the VCLT rules without
going into the details of their interpretive approach. Indian methods of interpretation,
whether statutory or constitutional, run parallel to VCLT. In these cases, courts conform
closely to the VCLT method: starting with the treaty’s ordinary meaning, then confirming
that meaning, if necessary, with subsequent practice or through extrinsic materials. The
practice of avoiding absurdity, in line with Article 32(b), is also common.39 A similar
repertoire (literal rule, context rule, internal and external aids, and avoiding absurdity of
literalism) is present not only in statutory guides like Maxwell’s but even, as one Supreme
Court justice has argued, in ancient Indian practices of interpretation.40 Notwithstanding
the Court’s insistence in Azadi Bachao that principles of statutory construction and
interpretation would differ from those of treaty interpretation, we find support in broader
(non-tax) jurisprudence for certain parallels between the kinds of statutory interpretation
adopted by the courts and the principles of the VCLT. Because the VCLT includes
interpretative possibilities ranging from textualism to teleology, it is not difficult to find
parallels between the VCLT approach and the one taken by the Court (and indeed,
arguably, any court).41 It is also worth emphasizing that if the analogy to statutory
interpretation is accepted, the prevailing view is that ‘rules of interpretation’— drawn from
diverse resources such as the General Clauses Act, of 1897 and works of Western jurists
like Maxwell and Craies— are not ‘rules of law’ but ‘rules of practice.’ This attitude may
impact the view of the status of international rules of interpretation as well. Below, we will
keep this concern to one side, however, and emphasize the functional similarities between
39
Ram Jethmalani (n 31)
40
Justice Markandey Katju, ‘The Mimansa Principles of Interpretation’ (1993) 1 SCC (Journal) 16
41
Helmut Philipp Aust, Alejandro Rodiles and Peter Staubach (n 6) 81
11
various rules followed by Indian courts and the Vienna rules.
A. Ordinary Meaning and Literal Construction
Article 31 of the VCLT requires that ‘ordinary meaning…be given to the terms of the
treaty.’ ‘Ordinary meaning’ corresponds directly with the rule of literal construction
adopted by Indian courts in a number of cases, outside the purview of tax law.42 The
general rule in Article 31 is no different from that principle applied by the Supreme Court
while interpreting a statute. Since literal construction is a point of departure, it is probably
less accurate to say that Article 31 was internalized in Indian law than that a nearly
identical norm of interpretation has been longstanding part of state practice. Courts in
India routinely draw upon non-etymological dictionaries focused on ordinary use. These
practices correspond to literal construction. Second, in line with Article 31(1), a treaty is
required to be ‘interpreted as a whole,’ which the courts have taken to mean: ‘provisions of
the treaty are required to be construed in harmony with each other.’43 The language of
Article 31 mirrors this as ‘terms of the treaty in their context’ (context under 31(2), context
for the purpose of the interpretation of a treaty shall comprise, in addition to the text,
including its preamble and annexes). It is axiomatic, however, that that the ordinary
dictionary meaning will not have relevance unless interpreted in the light of object and
purpose, and its context (which can be found in Article 31(2)).44
B. Internal Aids to Construction
As far Article 31(2) goes, there is practice by the Indian courts corresponding to the
VCLT’s provisions on internal aids to construction. Internal aids to construction include
42
State of Himachal Pradesh v Pawan Kumar AIR 200 SC 2265, 2269; State of Rajasthan v Babu Ram
(2007) 6 SCC 55, 57; State of Haryana v Suresh AIR 2007 SC 2245 [12]
43
Deputy Commissioner of Income Tax v Boston Consulting Group Pte Ltd (2005) 94 ITD 31 (Mum ITAT)
44
KP Varghese v ITO and Anr (1981) 131 ITR 597 (SC) and even in this context of interpretation of taxing
statutes, have held that the task of interpretation is not a mechanical task and, quoted with approval Justice Hand's
observation that ‘it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of
the dictionary but to remember that statutes always have some purpose or object to accomplish, whose sympathetic
and imaginative discovery is the surest guide to their meaning.
12
long title, preamble, headings, definitions, provisos, and explanation.45 The Supreme Court
has never cited the VCLT to support the position that a treaty’s preamble forms a party of
the treaty, but its jurisprudence clearly follows this position in construing a statute, or the
Constitution itself. Examples include constitutional cases characterizing preambles as
internal aids to interpret the statutes or the constitution.46 An early example of a
corresponding practice in statutory construction is seen in Bhola Prasad v. Emperor, which
referred to a preamble inserted by the Bihar Excise (Amendment Act), 1940 in the Bihar &
Orissa Act 1915.47 In constitutional interpretation, there are number of leading cases
involving the use of preambles as internal aids, but possibly the most famous is the
landmark Kesavananda Bharati v. State of Kerala (1973), in which India’s distinctive Basic
Structure Doctrine (which holds that a core part of the Constitution is unalterable through
any process of amendment) was derived from the preamble to the Constitution.48 The
Supreme Court in Tribhuvan Prakash Nayyar v. Union of India (1969) held that a
preamble is a ‘key to open the mind of the legislature’ but that it does not override precise
and unambiguous language of an act.49 In other words,it provides the context for the
enactment, but even more than that, according to cases such as Charanlal Sahu v. Union of
India, the preamble is considered an ‘integral part’ of the Constitution and occupies the
same position as any other words within the Constitution.50 Whatever the precise
distinctions between constitutional and statutory interpretation, both accept preambles as
internal aids, parallel to the rules on treaty interpretation in the VCLT. Unlike in the case
of 31(3)(b), where Courts at least make a passing reference to the VCLT, however, in these
cases, the courts do not refer to the Convention at all.
C. Subsequent Practice
The relevance of subsequent practice, which is contained in VCLT Article 31(3)(b), was
45
Admissibility and Codification of External Aids to Interpretation of Statutes (Law Com No 183, 2002) 20
46
See Union of India v Elphinstone Spinning & Weaving Co Ltd AIR 2001 SC 724, 740
47
Bhola Prasad v Emperor AIR 1942 FC 17, 21
48
Kesavananda Bharati v State of Kerela AIR 1973 SC 1461, 1579; Behram Khurshid Pesikaka v State of
Bombay AIR 1955 SC 123, 146; Ashoka Kumar Thakur v Union of India 6 SCC 1 [212]
49
(1969) 3 SCC 99
50
(1990) 1 SCC 613
13
noted by the Supreme Court in Godhra Electricity Co. Ltd. and Anr. v. State of Gujarat
and Anr.51 This case involved neither the interpretation of a treaty nor a statute, but
interpretation of a contract. The question at bar was ‘whether subsequent 'interpreting
statement' made by parties to a written instrument is admissible in evidence to construe [an
earlier] written instrument.’ Here, the VCLT was listed among other ‘foreign’ sources
supporting taking into account subsequent practice, at par with, after the typical references
to the Britain’s House of Lords, the relevant rules in the United States, Germany, France,
and Italy. Article 31(3)(b) enjoins the interpreter of a treaty to take into account any
subsequent practice in the application of the treaty which establish the agreement of the
parties regarding its interpretation. While not essential to the holding in the case, the Court
noted that the VCLT ‘to a large extent merely codifies earlier international practice,’ which
is significant given the paucity of non-tax cases that even mention the VCLT. That said,
Godhra Electricity Co. was a law of evidence case52 about interpretation of a contract, and
no treaty was interpreted.53 Here a principle articulated in domestic law was found to be
reinforced by its parallelism to the VCLT:
[e]xtrinsic evidence to determine the effect of an instrument is permissible where there,

remains a doubt as to its true meaning and that evidence of the acts done under it is a
guide to the intention of the parties, particularly, when acts are done shortly after the
date of the instrument.54
This seems to conform to the VCLT’s understanding of subsequent practice. As Lang and
Brugger have written:
Article 31 (3)(b) VCLT introduces a dynamic element to the interpretation process:

Subsequent practice is not only considered to the extent it reflects the parties’
intention upon conclusion of a treaty. Separate from the original intentions of the
51
Godhra Electricity Co Ltd and Anr v The State of Gujarat and Anr (1975) 1 SCC 199
52
ibid
53
Contracts remain a strong point of reference in treaty interpretation and indeed, it is ‘subsequent practice’ that
most casts treaties in the image of a contract rather than a statute. See Alex Glashausser, ‘What We Must Never
Forget When It Is a Treaty We Are Expounding’ (2005) 73 U. Cincinnati LR 1243, 1262
54
Citing Abdulla Ahmed v Animendra Kissen Mitter (1950) 30 SCR 530, 556
14
parties, their current understanding of the treaty, as established through subsequent

practice, is held to be relevant.55
Godhra Electricity Co. would indicate that the Court accepts such dynamic interpretation
as a part of customary international law, even if it does not particularly exemplify this
approach, or apply the principle to a treaty.
D. External Aids to Construction
Article 32 of VCLT corresponds to principles of external aids to construction used by

the Supreme Court in its guide to interpreting statutes. In fact the Supreme Court's
external guides to interpreting statutes are broader than principles under Article 32 of the
VCLT. The Court is willing to even look into historical facts and surrounding
circumstances apart from preparatory documents while interpreting an obscure term within
a statute.56 By contrast, an ‘external aid to construction’ generally compatible with Article
32 refers to Parliamentary history, Law Commission of India reports, other statutes,
dictionaries, and foreign judgments, among other sources of clarification.57 In addition, the
High Courts, though no longer the Supreme Court, remain notorious for their use of
Wikipedia.58
Also, as mentioned above, in the context of statutory and even constitutional
interpretation, treaties can be used as ‘external aids’ of a particular kind. As mentioned
previously, under Article 51 jurisprudence, the courts have developed the practice of
looking at treaties, while separate instruments from the legislation implementing them. In
this sense, they are viewed as external aids to interpreting domestic law.59 Wherever
necessary, Indian courts can look into International Conventions as an external aid for the
55
Michael Lang and Florian Brugger, ‘The Role of the OECD Commentary in Tax Treaty Interpretation’
(2008) 23 ATF 95
56
Shashikant Laxman Kale v Union of India AIR 1990 SC 2114, 2120
57
Law Commission of India (n46)
58
Alok Prasanna Kumar, ‘Indian high courts show continued enthusiasm for citing Wikipedia’, (Live Mint,
2015) <www.livemint.com/Opinion/7q9n1hlbVwkVEjVhlZJInN/Indian-high-courts-show-continued-enthusiasm-
for-citing-Wiki.html.> accessed 26th February 2015
59
PN Krishanlal v Govt of Kerala (1995) Supp. (2) SCC 187
15
construction of a national legislation.60 Here, however, the courts do not make reference to
Article 32, but follow their own set of principles, balancing between confirming the
meaning of a statute in a concrete source, and expanding it by drawing upon its spirit in
international sources. The parallel statutory rule is the doctrine of ‘harmonious
construction.’ In case of conflict between international treaties and clear and unambiguous
statutory law, courts will give effect to the statutory law. If statutory law is ambiguous, the
courts adopt the doctrine of harmonious construction so as to avoid conflict between
international treaties and statutory law.61 In other words, Indian courts construe ambiguous
statute law in the context of international treaties.
Finally, insofar as there are guidelines (not so much rules) for the treatment of
international conventions and foreign law, (and customary law is at par with treaties under
Article 51) we might consider whether the VCLT itself is treated the way foreign law is.
The recourse to the VCLT could be analogous to the use of foreign law, and therefore not
evidence of a commitment to internalizing international law, but rather applying it in order
to separate it. But there are differing views on the import of international law being treated
like foreign law. One view of foreign law (as an external aid), is to treat it as persuasive
support, but little more. A second view, one closer to choice of law principles, is more
demanding:
Once a domestic court determines that it is necessary to apply international law, it

should apply that as it would be applied in the international legal order, for it would
not be applying international law if it were to apply it in a different manner. A
parallel may also be drawn with the interpretation of foreign law, where the leading
principle is that foreign law should be interpreted in the way it is interpreted in the
legal system that created it.62
60
Admissibility and Codification of External Aids to Interpretation of Statutes (Law Com No 183, 2002)
61
Gramophone Co of India Ltd v Birendra Bahadur Pandey AIR 1984 SC 667
62
André Nollkaemper, ‘Grounds for the Application of International Rules of Interpretation in National
Courts’(2014) Amsterdam Law School Research Paper No. 52/2014, citing Payment in Gold of Brazilian Federal
Loans Contracted in France (France v Brazil) PCIJ Rep Series A No 21; J. Dolinger, ‘Application, Proof and
Interpretation of Foreign law, a Comparative Study in Private International Law’, (1995) 10 Ariz J Int’l & Comp L
225, 265–266
16
Under this view, as ‘foreign law,’ the application of VCLT principles is not ‘merely
persuasive’ or optional, but mandatory, rigorous, and conclusive.
E. Systemic Integration
We do not yet see reference to systemic integration under Article 31(3)(c) which provides
that when interpreting treaties, ‘[t]here shall be taken into account, together with the
context … any relevant rules of international law applicable in the relations between the
parties.’ Separately, the doctrine of ‘harmonious construction’ is reminiscent of ‘systematic
integration’. Under Article 51(c) of the Indian Constitution, ‘[t]he comity of nations
requires that rules of international law may be accommodated in the municipal law even
without express legislative sanction provided they so not run into conflict with Acts of
Parliament.’63 Insofar as the meaning of ‘systemic integration’ concerns the international
sphere, systemic integration of international obligations cannot be analogized to other
attempts at harmonizing domestic and international obligations. Parts of this chapter
suggest that ‘fragmentation’ which has been seen as a problem of the international legal
order is found all the way down to domestic courts. It is not unreasonable then to suggest
that systemic integration may also be adopted at this level. This is a potentially productive
area where in the future, Indian courts could refer to article 31 (3)(c) when it comes to
interpret treaties in the light of other treaties. This issue may not have arisen yet, but the
problem, when it arises, cannot just as clearly be resolved by using ‘harmonious
construction.’ There seems to be some domestic court practice in other jurisdictions which
provides guidance to how courts may use this provision.64
F. Gaps in Corresponding Methods
Whereas it is debatable whether there is a proper analogue to systemic integration, there
63
Gramophone Co of India Ltd v Birendra Bahadur Pandey 1984 SCR (2) 664
64
See, with further references, Jean d’Aspremont, ‘Systemic Integration of International Law by Domestic
Courts: Domestic Judges as Architects of the Consistency of the International Legal Order’ in Ole Kristian Fauchald
and André Nollkaemper (eds), The Practice of International and National Courts and the (De)Fragmentation of
International Law (Bloomsbury 2014)
17
are other principles in the VCLT 31-33 that are more obviously absent in the Indian
context. As far as Articles 31(3) and (4) and go, there are no corresponding principles in
Indian cases, except in the sense that they reflect principles of contract. In other words, the
provisions reflect the need for parties to agree in a certain way or certain sense.
At least in terms of statutory interpretation, there are no parallel principles reflecting
the content of Article 33, which makes the use of two or more languages equally
authoritative unless a treaty provides otherwise. Despite the linguistic diversity within
India, there is no jurisprudence on the use of two or more languages in contracts or
statutes, even by way of analogy, which could easily be imagined in a number of contexts.
If it can be demonstrated that Indian courts do indeed accept Articles 31-33 as customary
international law, one might expect a use of Article 33, given India’s language diversity.
In terms of ‘doing without saying,’ the VCLT provisions for which we can identify
corresponding Indian principles would be automatically applied by Indian courts. This is
not because the VCLT is accepted as customary law (though it may well be). It is because
these norms are already immanent in the practice of Indian courts. The fact that many
states that have signed and ratified the VCLT also do not make reference to it when
drawing upon its principles might mean that ‘doing without saying’ suggests that Courts
need not invoke the VCLT explicitly to signal their adherence. In these general cases,
similarities and corresponding methods are observed, usually in default methods of
statutory interpretation or principles of contract. In the more specific context of Double
Taxation Avoidance Agreements, however, the relevance of principles of statutory
interpretation is actually denied.
VII. NOMINAL ADHERENCE: SAYING WITHOUT DOING
If the use of corresponding methods consists of ‘doing without saying,’ nominal

adherence is ‘saying without doing.’ References to the VCLT in Indian jurisprudence are by
any measure thin. First, simply claiming Vienna rules of interpretation is not a guarantee
that these rules will then be faithfully applied. At the level of the Supreme Court or the
High Courts, a dozen cases mention the VCLT explicitly. Of those, the majority concern
DTAAs. The recent transgender rights case, NALSA, was nearly unique among non-tax
18
cases in mentioning ‘[t]he Interpretation of International Conventions is governed by

Articles 31 and 32’ of the VCLT.’65 As we will see below, this is accepted in a number of
cases, but even the attempt to interpret treaties is rare outside the narrow area of Double
Taxation Agreements. The case of Godhra Electricity Co., cited above as a case of
corresponding practice, was also rare in that the VCLT was mentioned, noting that Article
31(3)(b) codifies earlier international practice, but it was nominal in the sense that it merely
provided support for a well-rehearsed rule of contract law.66 Beyond these, there are stray
cases that use the VCLT (and not always Articles 31-33) as persuasive authority for
principles of interpreting statutes or contracts.
In other cases, some foundational issues outside the scope of 31-33, such as the
definition of a treaty, or the principle of pacta sunt servanda, have been discussed. The
Indian courts have in the past confronted provisions of the VCLT other than Articles 31-33
and treated them as customary international law. In a customs case (where the Customs
treaty between India and Nepal was being interpreted), the Customs Excise Appellate
Tribunal observed, ‘Like the civil law of contracts, the international law of treaties looks
primarily to consent and the wills of the parties to determine whether an agreement in law
has been concluded.’67 The tribunal also hinted that the contractual character of sovereigns
acting in an external political arena seems distinct from that of legislators enacting laws
domestically. ‘The emphasis of international law on the consent of the parties is due not
only to the influence of civil law, but also to the realities of the international legal system
where state sovereignty and independence loom so large.’ 68
The same tribunal pointed to the foundational role of the maxim pacta sunt servanda.
Courts and tribunals have had occasion to note the customary character of this rule. With
recent developments (again in tax law), it is likely that they will be called upon to do so
again. The basic principle regarding the observance of treaties, pacta sunt servanda, finds its
place in the VCLT: ‘Every treaty in force is binding upon the parties to it and must be
performed by them in good faith.’ The principle, while undeniably a rule of customary law,
is enshrined in part in Article 26 of the VCLT, which would require that in case of conflict
65
National Legal Services Authority v Union of India and Ors (2014) 5 SCC 438
66
Godhra Electricity Co Ltd and Anr v State of Gujarat and Anr (1975) 1 SCC 199
67
Collr of Cus v Narayani Trading Concern Pvt Ltd 1997 (89) ELT 668 (Cal)
68
ibid
19
between a tax treaty and those of domestic law, the provision of the treaty must prevail.
Beyond this, Article 27 provides that a State may not invoke the provisions of its internal
law as justification for its failure to perform its obligations under a treaty.69 Two other cases
(one of which overruled the other), both held that an MOU is a binding bilateral
international treaty under the meaning of the VCLT, though this did not directly reference
Articles 31-33, or the VCLT’s status as customary law.70 The question, instead, was whether
a Memorandum of Understanding entered into by the Governments of India and
Switzerland constituted a treaty or an enforceable contract between the two Governments.71
Article 2 of the VCLT was invoked for this purpose. At best, taken together (and along
with a larger number of cases below that deal with DTAAs), these cases demonstrate
nominal adherence to the VCLT.
VIII. TAX TREATIES: A SELF-CONTAINED REGIME?
Arguably, the only context where the Indian courts both ‘say what they do’ and ‘do what
they say’ is in the specific domain of interpreting tax treaties. What’s more, these cases arise
far more frequently than many of the other applications of treaties. The question is whether
tax treaty interpretation constitutes a kind of ‘self-contained’ practice that is cordoned off
from the rest. It is important to see that whatever commentators on international law have
to say about the specificity of international tax law from the mainstream of international
law, for example, on whether rules of interpretation depart in some ways from the VCLT,
the role of tax treaty interpretation in domestic courts might bring courts closer to the
VCLT than they would be in non-tax matters. This seems to be the case in India. Thus we
will take up international taxation as a sphere whose ‘specificity’ has different implications
69
We can expect the Courts to have the opportunity discuss the force of this principle again now that breaches of
this rule are becoming more likely with the adoption in Indian tax law of a General Anti Avoidance Rule (GAAR),
which purports to have a treaty over-ride effect on DTAAs India may have entered into with another country. See
Dkhar Badapbiang and Tanya Agarwal, ‘Tax Treaty Override: A Comprehensive Analysis with Special Reference to
India’ <http://krrtaxmoot.com/2013/docs/taxtreaty_override_researchpaper.pdf > accessed 26 February 2015
70
Janata Dal v HS Chowdhary and Ors (1992) 4 SCC 305; overruling Washeshar Nath Chadha v Union of
India 1992 (1) DRJ 24 (Del)
71
This case might be an example both of ‘saying without doing’ and ‘doing without saying.’ Here, while the
provision of the VCLT that is invoked is Article 2, which defines international agreements, it also implicitly follows
the method of defining a term according to which provides a basis for clarification in an external aid as well as under
Article 31(3)(c), relevant rules of international law applicable in the relations between the parties.
20
at the international level and domestically.
A. Interpretation of Tax Treaties: The International Context
At the international level, some commentators have referred to international tax law
principles, including the principles governing their interpretation, as a ‘lex specialis’
cordoned off from the general principles of Articles 31-33.72 At the international level, the
notion of “leges specialis” or “self-contained regimes” is connected to the characterization
known as the “fragmentation of international law.” At the domestic level, tt has been noted,
correctly, that some principles of interpretation occur only in the interpretation of tax
treaties.73 Alternatively, it has been suggested that because of its generality the VCLT
‘cannot make allowance for the peculiarities of tax treaties.’74 As Georg Nolte has noted in
the ‘Third Report of the ILC Study Group on Treaties over Time’:
Many treaties address self-standing matters and are negotiated with a focus on specific
issues…75 Such treaties are negotiated on the background of a multilateral arrangement
which provides a framework, or model, for such treaties…or at least a collective
recognition of basic principles, rules, [and] terminology…The interpretation of such
treaties is influenced by their specific context.76
International Tax law fits this description but these frameworks are typically bilateral and
governed not by a binding multilateral treaty, formed on the basis of Model Treaties and
72
See, e.g., Marjaana Helminen, 'Tax Treaty Interpretation in Finland' in Michael Lang (ed), Tax Treaty
Interpretation (Kluwer Law/Linde 2001) 82; (‘any interpretive rules concerning especially tax treaties take
precedence as lex specialis over the principles set out in the Vienna Convention’).
73
Michael Waibel, ‘Uniformity versus Specialisation (2): A Uniform Regime of Treaty Interpretation?’ in
Christian Tams, Antonios Tzanakopoulos and Andreas Zimmermann (eds), Research Handbook on the Law of
Treaties (Edward Elgar 2014); (some interpretive methods are used only in relation to tax treaties) citing E Reimer,
‘Tax Treaty Interpretation in Germany’ in Michael Lang (ed), Tax Treaty Interpretation (Kluwer Law/Linde 2001)
122
74
K Vogel, ‘Double Tax Treaties and their Interpretation’ (1986) 4 BJIL 1, 15, 30-37
75
Georg Nolte, ‘Reports For The ILC Study Group On Treaties Over Time, Report 3. Subsequent Agreements
and Subsequent Practice of States Outside of Judicial or Quasi-judicial Proceedings’ in Georg Nolte (ed), Treaties
And Subsequent Practice (OUP 2013) 307, 360-364
76
ibid
21
Commentaries, and interpreted according to VCLT rules. Since there is no stand-alone

dispute resolution mechanism at the international level, and no multilateral treaty, one
basis of this fragmentation is the more than three thousand double taxation treaties
currently in force are bilateral treaties. ‘Almost all these bilateral double taxation treaties
copy the 1963 OECD Model Tax Convention, as amended, almost word-by-word.’77 A
major reason for departure from the VCLT’s interpretive framework in international tax
law is that there are competing models for uniformity: either the OECD Model Tax
Convention on Income and on Capital78 or the United Nations Model Convention,79 each
appended with Commentaries offering interpretative guidance to the models, and therefore
treaties drawing upon their provisions. A second reason is that national courts and
administrative agencies are the central actors in this area, given the absence of commonly
used dispute settlement methods at the international level. According to Michael Waibel,
frequency of the use of the VCLT differs depending on the interpretative community, and
since tax law is rarely discussed by international tribunals, tax disputes reach the
international plane typically only incidentally, as part of a larger dispute involving other
elements. Waibel is skeptical whether even if ‘a coherent international tax regime exists’
that it ‘forms a significant part of international law.’80 Tax law is a latecomer in the use of
the VCLT as compared to trade or investment law. Insofar as the VCLT is only now
emerging in international tax law, according the Waibel, it offers a good illustration of
interpretive fragmentation.
In India, as we will see below, the implications of specialization are different. Courts
refer to the VCLT when interpreting tax treaties. First, the treaties signed by India are
77
ibid
78
Organisation for Economic Co-operation and Development, ‘Model Tax Convention on Income and on
Capital’ (2010) <http://www.oecd.org/document/37/0,3746,en_2649_33747_1913957_1_1_1_1,00.html> accessed
27 March 2012; also cf David Ward, The Interpretation of Income Tax Treaties with Particular Reference to the
Commentaries on the OECD Model (International Fiscal Association 2005); Michael Lang and Florian Brugger,
‘The Role of the OECD Commentary in Tax Treaty Interpretation’ (2008) 23 ATF 95
79
United Nations Department of Economic & Social Affairs, ‘Model Double Taxation Convention between
Developed and Developing Countries’ <www.un.org/esa/ffd/wp-
content/uploads/2014/09/UN_Model_2011_Update.pdf> accessed 26 February 2015
80
Waibel singles out the textbook Reuven S. Avi-Yonah, International Tax as International Law: An Analysis
of The International Tax Regime (CUP 2007) as not referring to the VCLT despite its claim ‘that a coherent
international tax regime exists, and that is forms a significant part of international law.’ Waibel allows that ‘Other
books on tax treaties do however refer to the VCLT’ citing P Baker, Double Taxation Conventions and International
Tax Law (2nd edn, Sweet & Maxwell 1994). The diversity is to be taken as a sign of interpretative fragmentation.
22
neither fully based on the UN Model nor on the OECD Model. India has been adopting a
dual approach in negotiating tax treaties. Certain articles of the Indian tax treaties are based
on the language in the OECD Model while others are adapted from the UN Model. In this
mixed situation, where recourse to international meaning is nonetheless valued, the VCLT
provides a common minimum interpretive canon. India is an observer to the OECD and
adopts a hybrid approach based on OECD Model Tax Convention on Income and on
Capital or the United Nations Model Convention, and the Commentaries attached to them
that illustrate and interpret the provisions of the models themselves. According to Waibel,
‘Whether tax treaty interpretation conforms to the VCLT’s interpretive framework is
unclear,’ but it does appear that Model Conventions and Commentaries take precedence as
lex specialis over the principles set out in the Vienna. For the Indian courts, however, tax
treaties form a different kind of ‘special law’ drawing upon the principles set out in the
Vienna.
B. Interpretation of Tax Treaties: The Indian Context
Insofar as there is some divergence between what is done and said in the tax context,
and in the more general context, the practice in India can be considered to be a domestic
version of what Michael Waibel has called ‘interpretative fragmentation.’81 But it is worth
noting that it is precisely the area of tax law that brings in the VCLT most explicitly. Far
from denying the applicability of the VCLT and the adoption of special rules, courts
embrace Articles 31 and 32 in DTAA cases.82 It has observed that the principle of
interpretation contained in Article 31 provides a broad guideline for the appropriate
manner of interpreting a tax treaty in the Indian context.83 In Azadi Bachao, a case
concerning treaty shopping and the India-Mauritius Tax Treaty, the Supreme court held
that:
81
Michael Waibel, ‘Uniformity versus Specialisation (2): A Uniform Regime of Treaty Interpretation?’ in
Christian Tams, Antonios Tzanakopoulos and Andreas Zimmermann (eds), Research Handbook on the Law of
Treaties (Edward Elgar 2014)
82
Mashreq Bank PSC v DDIT (2007) (14 SOT 1) (Mum ITAT); James Mackintosh & Co Pvt Ltd v ACIT (2005)
93 ITD 466 (Mum ITAT); Hindalco Industries Ltd v Assistant Commissioner of Income Tax (2005) 94 ITD 242
(Mum ITAT)
83
Ram Jethmalani (n 31)
23
…the principles adopted in interpretation of treaties are not the same as those in
interpretation of a statutory legislation. An important principle which needs to be
kept in mind in the interpretation of the provisions of an international treaty,
including one for double taxation relief is that treaties are negotiated and entered
into at a political level and have several considerations as their bases. 84
Aside from being broadly supportive of the VCLT principles, this case provides two
assertions that would be instructive, if only they were explored in more detail. The first is
the question of identifying the distinctive ‘principles adopted in interpretation of treaties.’
The second is the question of identifying the ‘several considerations’ at the base of
negotiating and entering into treaties ‘at a political level.’ The first of these calls for
identifying a canon of principles applicable to the interpretation of tax treaties; the second
calls for identifying a social and political context applicable their conclusion.
1. Principles Adopted in Interpretation of Treaties
The court in Azadi Bachao alluded to the existence of a distinctive canon of principles
applicable to the interpretation of tax treaties.85 It did not enumerate these however, and
some parts of its decision, such as its reiteration of the Westminster Principle (‘rule of
beneficial construction’ favoring assessees) seem at odds with its pronouncement that the
principles applicable to the interpretation of tax treaties are altogether different from those
applicable to tax statutes. It is doubtful that the Court would limit the applicable principles
to those contained within the VCLT or Model Conventions and Commentaries.86
Therefore, a fuller sense of the canon of tax treaty interpretation can be found across cases,
which utilize principles that have been articulated from time to time. Notwithstanding the
Court’s pronouncement in Azadi Bachao, there seem to be a number of interpretive rules
shared between tax statutes and tax treaties. In addition to the rule of beneficial
construction— where there are two interpretations possible, the one which is beneficial to
84
Azadi Bachao (n2), [130], [131]
85
ibid
86
ibid [116].
24
the assessee would be preferred—87 it is common to refer to a series of canonical rules for
taxation articulated by Adam Smith as early as 1776 and Charles Bastable early in the last
century: equality or equity, certainty, economy, convenience, elasticity, productivity,
simplicity, diversity, and expediency.88 The tribunal in Hindalco Industries emphasized the
same point as Azadi Bachao, with a little more precision: ‘The words employed in the tax
treaties not being those of a regular Parliamentary draughtsman, the words need not [be]
examined in precise grammatical sense or in literal sense.’89 Thus, the principles adopted in
the interpretation of statutory legislation are not (or not necessarily) applicable in
interpretation of treaties. Finally we often encounter a principle that is found nowhere in
the VCLT, but often repeated in cases interpreting tax treaties: ‘Words are to be understood
with reference to the subject-matter,’ citing the maxim ‘verba acco poenda sunt secundum
subjectum materiam.’90
Aside from these, VCLT Articles 31 and 32 seem to provide a general framework for
interpretation in the context of tax treaties. First, in parallel with Article 31 VCLT, ‘A tax
treaty is to be interpreted in good faith in accordance with the ordinary meaning given to
the treaty in the context and in the light of its objects and purpose.’91 Second, in line with
Article 31(1), a tax treaty is required to be ‘interpreted as a whole,’ which the courts have
taken to mean: ‘provisions of the treaty are required to be construed in harmony with each
other.’92 As with the VCLT, there are exceptions to the general rule regarding ordinary
meaning. These include, parallel to Article 32(b) a convention allowing departure from
plain meaning of the language whenever context so requires, to avoid the absurdities,93 and
87
IRC v Duke of Westminister 1936 AC 1 wherein Tomlin LJ. Stating that an assessee may arrange his affairs
within the bounds of the law so as to minimize the incidence of tax; Azadi Bachao (n2)
88
Charles F. Bastable, Public Finance (3rd edn, Macmillan 1917) quoting and supplementing Adam Smith’s
initial four canons of proper taxation from Wealth of Nations.
89
Hindalco Industries Ltd v Assistant Commissioner of Income Tax (2005) 94 ITD 242 (Mum ITAT)
90
This maxim is cited among other cases in Hindalco Industries Ltd v Assistant Commissioner of Income (2005)
94 ITD 242 (Mum ITAT). This does not have a direct analogue in the Vienna rules. At best, this might occur
according to 31(4) which departs from the ‘special meaning shall be given to a term if it is established that the
parties so intended.’ The VCLT itself says nothing about ‘subject matter’ except insofar as Article 30(3) accords
priority subsequent treaty on the the same subject matter as an earlier treaty (the ‘lex posterior’ principle), and
Article 59(1)(b) provides for termination or suspension of an earler treaty under this principle. See Duncan B.
Hollis, The Oxford Guide to Treaties (1st edn, OUP 2012) 723
91
Modern Threads India Ltd v Dy CIT (1999) 69 ITD 115 (Jaipur); Article 31(1) of the VCLT States that ‘A
Treaty shall be interpreted in good faith in accordance with the ordinary meaning given to the terms of the Treaty in
their context and in the light of its object and purpose.’
92
Deputy Commissioner of Income Tax v Boston Consulting Group Pte Ltd (2005) 94 ITD 31 (Mum)
93
VCLT Article 32(b) is designed for a situation where the general rule of interpretation ‘leads to a result which
25
to interpret the treaty in such a manner as to make it workable rather than redundant.94
Finally, ‘a literal or legalistic meaning must be avoided when the basic object of the treaty
might be defeated or frustrated insofar as particular items under consideration are
concerned.’95 Finally, when a tax treaty does not define a term employed in it, and if the
context of the treaty so requires, the terms can be given a meaning different from its
meaning in the domestic law.96 This raises the issue of how Model Conventions and
Commentaries should be treated.
Thus the VCLT would be used primarily to interpret the DTAAs as bilateral
agreements. The courts have also discussed the relevance of the UN and OECD Model
Conventions and Commentaries as aids to interpretation. Unlike statutory language, model
conventions and commentaries constitute ‘international tax language’ and the meanings
assigned by such literature to various technical terms should be ‘given due weightage.’97
The Supreme Court of India in Commissioner of Income-tax v. PV AL Kulandagan
Chettiar decided that the ‘OECD Commentary is not a safe or acceptable guide or aid for
interpretation of provisions of the Act or DTAAs between India and other countries.’98 On
the other hand, the Delhi High Court recently in the case of Asia Satellite
Telecommunications Co. Ltd. v. DIT and vice versa,99 upheld the reliance on OECD
Commentary, saying OECD Commentary “can always be relied upon.” The latter decision
is consistent with Azadi Bachao Andolan & Anr.,100 and other decisions that emphasize that
the international accepted meaning and interpretation placed on identical or similar terms
employed in various DTAAs should be followed by the Courts in India when it comes to
construing similar terms occurring in the Act. Taken together, the two cases can be
reconciled if reference to the Commentary is subject to two conditions: (1) The technical
terms as sought for interpretation are ambiguous; and (2) technical terms as used in the Act
is manifestly absurd or unreasonable.’
94
Hindalco Industries Ltd v Assistant Commissioner of Income Tax (2005) 94 ITD 242 (Mum ITAT)
95
Indian Metal and Ferro Alloys Ltd v Collector of Central Excise (1991) AIR 1028 (SC); Azadi Bachao (n 2);
Varghese KP v ITO (1981) 131 ITR 597 (SC); State of Madhya Pradesh v GS Mills (1991) AIR 772 (SC); SRF
Finance v CBDT (1995) 211 ITR 861 (Del)
96
Mashreq Bank PSC v DDIT (2007) 14 SOT 1 (Mumbai); James Mackintosh & Co (P) Ltd v ACIT (2004) 93
ITD 466 (Mum); Hindalco Industries Ltd v Assistant Commissioner of Income Tax (2005) 94 ITD 242 (Mum ITAT)
97
Graphite India Ltd v DCIT (2003) 86 ITD 384 (Kolkata);CIT v Visakhapatnam Port Trust (1983) 144 ITR
146 (AP)
98
Commissioner of Income Tax v PVA Kulandagan Chettiar (2004) 267 ITR 654 (SC)
99
Asia Satellite Telecommunications Co v DIT (2011) 332 ITR 340 (Del)
100
Azadi Bachao (n 2)
26
or DTAAs are identical or similar to terms employed in OECD Commentary.

Under the VCLT, the terms of the Commentaries can also be regarded as
supplementary means of interpretation within Article 32; resort can only be had to such
supplementary means to confirm an interpretation the Court has already reached using the
rules in Article 31 or where the use of those rules has left the meaning ambiguous or
obscure.101 The Model Conventions are themselves not binding instruments, (even aside
from the fact that in the case of the OECD, India is not even a member state).
Commentaries cannot be considered internal aids. Under a loose definition, they can be
considered external aids. Commentaries that have been amended after the passage of a
DTAA can be considered ‘subsequent practice’ but not a ‘subsequent agreement.’ Moreover,
since 1997, non-members have also been able to express their disagreement with certain
aspects of the model and include positions on articles and commentaries. India has raised
more than 35 disagreements with aspects of the OECD Model.102 This might be relevant
state practice should the provisions of tax treaties ever become evidence of custom. These
are not ‘reservations’ with the technical meaning of Art. 2(1)(c) of the VCLT, because the
Model Conventions are not treaties. As far as the Indian courts go, the courts’ treatment of
the Model Conventions and Commentaries—which are aids to interpretation— might also
shed light on the status of the VCLT as a source of law or technical resource. Model
Conventions and Commentaries are correctly viewed not as sources of law but as technical
aids and resources. It is not clear that the same view should be taken of the VCLT,
however.
2. Considerations at their Bases
The principle articulated is that ‘treaties are negotiated and entered into at a political
101
To the extent the provisions of DTAAs are similar to a Model Tax Convention, commentaries may become
relevant to interpretation of DTAAs that mirror the Model Convention. For the difficulties of interpreting
amendments to the Models or Commentaries as subsequent practice or subsequent agreements, see e.g., Georg
Nolte, ‘Subsequent Agreements and Subsequent Practice of States outside of Judicial or Quasi-Judicial Proceedings:
Third Report for the ILC Study Group on Treaties over Time’ in Georg Nolte (ed), Treaties And Subsequent
Practice (OUP 2013) 307, 360-364
102
Alberto Vega, ‘Explaining Reservations to the OECD Model Tax Convention: An Empirical Approach’
<http://www.indret.com/pdf/860_en.pdf> accessed 26 February 2015
27
level and have several considerations as their bases.’ What does ‘political’ mean in this
context, and what are these ‘several considerations’? If this is the key principle that
separates international treaties and domestic legislation, this statement requires further
elaboration. Since it is not plausible to claim that domestic legislation is not arrived at
through a ‘political’ process, the sense of ‘political level’ may be one where the state acts as
a sovereign externally. An alternative use of the word ‘politic’ may denote ‘euphemistic’ or
‘vague’ in order to get past differences at the stage of negotiating a treaty. In either case, the
Court’s point is that the constraints and conditions of treaty drafting are different from
those in statutory drafting. The Court is possibly also referring ‘object and purpose’ or even
to social and political context applicable the conclusion of a treaty. This would be
analogous, in fact, to a principle of construction in tax statutes where the courts will
construe liberally benevolent and procedural sections pertaining to incentives, exemptions
and deductions where the spirit is to promote exports, industrialization, and infrastructure
development. In Bajaj Tempo Ltd. [1992]103 the court stated that a provision in a taxing
statute granting incentives for promoting economic growth and development should be
construed liberally.104
Even the fragmentation of DTAAs along different models and this has to do with the
transitions in the Indian economy as much as anything else. Liberalization of the Indian
economy in the early 1990s led to increase in cross-border commercial activity, and also to
increasing density and intensity of DTAA disputes. These disputes were taken up by
Income Tax Appellate Tribunal, a body which has been in place since 1936, composed of
revenue officials, but whose decisions are appealable to the Courts.105 The treaties signed by
India are neither fully based on the UN Model (which favors the priorities of developing
countries) nor on the OECD Model (which favors certain priorities of more developed
economies). As a developing country, India started by modelling its DTAAs on the UN
103
Bajaj Tempo Ltd v CIT (1992) 196 ITR 188 (SC)
104
This is not to suggest that this principle has only been adopted post-liberalization. This principle is also at
work in Juggilal Kamlapat v CIT (1969) 73 ITR 702 (SC), CIT v Strawboard Manufacturing Co Ltd (1989) 177 ITR
431 (SC) 434 and CIT v South Arcot District Co-operative Marketing Society Ltd (1989) 176 ITR 117 (SC) 119
105
R.P. Garg, ‘Evolution of ITAT: Historical Perspective and Vision’
<http://www.itatonline.org/articles_new/index.php/acknowledgement/> accessed 26 February 2015; The concept of
a National Tax Tribunal whose decisions would bypass the High Courts and be taken straight to the Supreme Court
was found unconstitutional. See Madras Bar Association v Union of India, Transferred Case (C) No 150 of 2006,
and 25.09.2014.
28
Model, but with liberalization and an increase in interactions and disputes with the
developed bloc, it started developing looking to a hybrid model.106 India has been adopting
a dual, hybrid approach where certain articles of the Indian tax treaties are based on the
language in the OECD Model, while others are adapted from the UN Model. In this mixed
situation, where recourse to international meaning is nonetheless valued, the VCLT
provides a common minimum interpretive canon.
The importance of the VCLT rules as a default regime is suggested for at least two
reasons. In this context, there are two kinds of arguments about special regimes, and both
are plausible, and even compatible: (1) that in India, the VCLT operates most surely in the
domain-specific area, thereby constituting a rigorous special regime apart from the more
eclectic general approach, or (2) that by referring to the common denominator of the
VCLT, courts and tax tribunals reject any further specificity, namely the special regimes
that might be governed by one or another of the Model Conventions. The situation is not
only complex, but also in flux. Insofar as the courts will find themselves vacillating between
approaches that favor the treaty provisions and supporting unilateral cancellation, guidance
from the VCLT and the Model Conventions seems indispensable, though not yet inevitable.
IX. FROM ADHERENCE TO COHERENCE, WITH A VIEW TO CONVERGENCE
Before being able to assess whether any given jurisdiction is adopting an approach
converging with others, it is necessary to assess whether the approach adopted within that
country is itself internally coherent. What is the value of coherence? In international law, a
concern with coherence arises when we seek evidence of customary international law (as
uniform state practice), and also in attempts to overcome fragmentation. In the domestic
setting, the issue of coherence is related to a demonstrated fidelity to underlying principles.
In defense of coherence, Dworkin has said, ‘Nothing is easier and more pointless than
demonstrating that a flawed and contradictory account fits as well as a smoother and more
attractive one.’107 Writing in a different context, the anthropologist Clifford Geertz took a
106
D.P. Sengupta,‘The Relevance of the OECD and UN Model Conventions and their Commentaries for the
Interpretation of Indian Tax Treaties’ in Michael Lang, Pasquale Pistone, Josef Schuch and Claus Staringer (eds),
The Impact of the OECD and UN Model Conventions on Bilateral Tax Treaties (1st edn, CUP 2012) 549
107
Ronald Dworkin, Law’s Empire (Harvard University Press 1986) 274; Pierre Schlag, Laying Down the Law:
29
more skeptical view: ‘there is nothing so coherent as a paranoid's delusion or a swindler's

story.’108 The point is that we will see coherence if we choose to. Also, coherence is not a
test of ultimate validity. As some authors in this volume have argued, coherence is suspect
even as an ideal.109 For the narrower purpose of figuring out whether something that is
legally binding today is likely to be legally binding tomorrow, or whether actors share a
view of what law binds them, however, coherence seems indispensable.
There are two kinds of claims that could support the assertion that coherence exists on
some level. The first is that there is in fact some coherence, but only if we assume that the
underlying judicial policy is one with the thinnest kind of adherence to VCLT rules. This is
to say that if we view them together, both the narrow and the broad cases have in common
the assumption that articles 31 and 32 of the VCLT may be used only as an interpretative
tool, and not as a binding source of norms. In this view, the explicitness with which courts
in DTAA cases adopt the VCLT as the applicable rules could also be seen to limit their
applicability. If the VCLT is treated as a tool that is applicable only in special cases, then it
is unlikely that a court would view it as generally applicable. This is one scenario where we
strain to see coherence, and the case for a thick kind of adherence diminishes.
The second is that there is a kind of emerging coherence and one where different kinds
of adherence will be mutually supportive of the VCLT becoming central in all kinds of
cases. Though there is little to support this view; it is inherently difficult to disprove as well.
A more maximal (we might say teleological) view is that the narrow, but explicit use of the
VCLT in tax treaty cases should be viewed as an indication of a broader trend, which will
become essential to the judges’ toolkit, expand with (and eventually even constrain) the
loose and purposive use of international law in the domestic order under Article 51 of the
constitution. Yet, potentially, these statements add up to something. Nominal adherence—
invoking the VCLT without actually applying it—is not the same as non-adherence. It
demonstrates at least a will towards adherence. Separately, the existence of parallel norms
of interpretation in application to statues or even the Constitution does not preclude the
adoption of similar rules for treaties, despite the attempt of some courts to distinguish
them. The question for this volume is whether any further significance can be found in this
Mysticism, Fetishism, and the American Legal Mind (New York University Press 1996) 84
108
Clifford Geertz, The Interpretation of Cultures (2000 edn, Basic Books 1973) 18
109
See the chapter by Reinold, in this volume.
30
practice, either evidence of a convergence with the approach of other domestic courts, or a
highly distinctive approach diverging from others. The use of Articles 31-33, by itself, says
little about how courts view international law. At the very least, the use of the VCLT may
be a matter of convenience, a technical resource for a technical problem. However, we
might ask if the courts’ use of the customary principles can be laid alongside other kinds of
evidence of a coherent approach to international law.
There is some sense that the VCLT lies in the background, and is available to aid courts
in Article 51 jurisprudence in case there is any lack of clarity in the meaning of specific
treaty obligations. In National Legal Services Authority against Union of India110, the
Supreme Court states that ‘India has ratified the above mentioned covenants, hence, those
covenants can be used by the municipal courts as an aid to the Interpretation of Statutes by
applying the Doctrine of Harmonization…’ and almost as an afterthought, ‘The
Interpretation of International Conventions is governed by Articles 31 and 32’ of the
VCLT. Without much elaboration, the court then goes on to refer to Article 51 and Article
253 of the Indian Constitution.
This might be a skeleton of an approach that is fleshed out further in the future. As we
have seen above, there is already a minor jurisprudence that the Court could build upon, in
the narrow area of DTAAs, where the court regularly relies upon Articles 31 and 32 of the
VCLT, or at least reiterates its applicability. The remaining step would be to apply the
VCLT rules more regularly across different kinds of cases. Also it is significant that the
Supreme Court’s clearest pronouncement on the acceptance of VCLT 31 and 32 came only
recently. Whereas the Court has been relatively circumspect about the applicable rules of
interpretation outside the DTAA context, recently in NALSA, the Supreme Court for the
first time put the matter directly: ‘The Interpretation of International Conventions is
governed by Articles 31 and 32’ of the VCLT.’111 In other words there might well be a
development towards adherence also in questions of treaty interpretation outside of DTAA.
It is at least possible that there is a broader trend, which will become essential to the judges’
toolkit, expand with (and eventually even constrain) the loose and purposive use of
international law in the domestic order under Article 51 of the constitution. It is generally
110
National Legal Services Authority (n 2)
111
ibid.
31
recognized that the rules on interpretation contained in the VCLT codify existing
international customary law. The Supreme Court mentions this.112 Cases that support the
use of the VCLT for interpretation of treaties range from Tax Tribunal cases113 to a few in
the Supreme Court in India.114 Almost without exception, however, the latter also concern
the interpretation of tax treaties. Since, India is not party to the VCLT, one might be
tempted to say that in a particular way, international law is treated as ‘only a fact’ before
Indian Courts. One might point to the paucity of discussion of customary law as opposed
to application of fully incorporated treaty rules as evidence of this. One might also see the
secondary rules of international law (including the VCLT) as cordoned off into narrow,
technical aids for interpretation, but certainly not binding as law. On the latter point, it is
true that most domestic courts may be more inclined to support controversial
interpretations of international law that benefit public welfare in the domestic order.115 For
the Indian courts, especially with regard to international law, incoherence is a normal state
of affairs, there is a fragmentation, but its precise texture is contested. And at times it seems
like a studied ambiguity, or flexibility in a time of flux.
X. CONCLUDING OBSERVATIONS
This chapter surveyed whether and how courts in India apply VCLT rules, particularly
Articles 31-33, when they interpret treaties. It looked at both adherence to the Vienna rules
(either through nominal adherence or through the adoption of corresponding methods),
and discussed certain problems of coherence of interpretive principles across different cases
and settings. India is not a party to the VCLT, but the courts have applied sections for
interpretative guidance, whether or not they state explicitly that they are applying these as
customary law. Insofar as India is not a signatory to the VCLT, the use of similar rules can
be viewed as either application of customary international law, or the adoption of
convenient guidelines. Within India, the VCLT is referred to most frequently in cases
involving the interpretation of Taxation Avoidance Agreements (DTAAs), which constitutes
112
The Godhra Electricity Co Ltd and Anr v State of Gujarat and Anr (1975) AIR 32 (SC)
113
James Mackintosh & Co Pvt Ltd v ACIT (2005) 93 ITD 466 (Mum TT)
114
The Godhra Electricity Co Ltd and Anr v State of Gujarat and Anr (1975) AIR 32 (SC)
115
Novartis AG v Union of India, (2007) 4 Madras Law Journal 1153 (Mad)
32
a specialized regime. In the DTAA context, the VCLT rules are part of a toolkit that
includes a number of other persuasive and non-binding materials. Even clear direction by
the Supreme Court that VCLT 31 and 32 are to be accepted as customary international law
may not perfect the situation, however. The courts are accustomed to using international
law (both treaty-based and customary law) as tools of interpretation having instrumental
value at best.
However imperfect from the point of view of customary law, taken together, nominal
adherence (saying without doing) and corresponding methods (doing without saying),
demonstrate a will towards adherence to the VCLT by the Indian courts. To be meaningful,
however, there must be an accompanying will towards coherence. Indian courts have
already experimented with harmonizing domestic laws with international law, in the
context of Article 51 of the Constitution. This methodology may also be a signal for a
greater or lesser degree of openness of domestic judiciaries for ‘the international law’ in its
most generic form. Harmonizing approaches to the VCLT rules would provide a
counterpart at the level of interpretation.
This would involve bridging those extremely rare pronouncements by the Supreme
Court that treaty interpretation is governed by the VCLT, and the ordinary practice of
invoking the VCLT in DTAA disputes. Above all, this would require a clear
pronouncement from the apex court stating that Articles 31-33 (or at least most of them)
are applicable as customary law and not just as a matter of comity or convenience. A first
step would be for the Supreme Court to rely upon the considerable body of decisions in
cross-border tax matters, and cite these cases in their mainstream (non-tax) jurisprudence.
Only then would the VCLT be treated as more than merely a ‘fact,’ but as justiciable and
enforceable norms. The Courts would rightly recall that principles contained in the VCLT
31-33 have long been accepted as a source of customary international law, and that there is
ample practice in India demonstrating their acceptance. Until then, it appears that the
VCLT is more a resource than a source, and nascent judicial policy on treaty interpretation
which, because of density and immediacy of disputes, has so far taken root in DTAA cases
has yet to be extended to other kinds of cases.116
Finally, drawing upon these observations of the Indian courts, and internal measures of
116
Tata Iron & Steel Co Ltd v Deputy Commissioner of Income Tax (1998) 62 TTJ (Mum)
33
adherence and coherence, a cautionary note could also be added to the mapping of other
jurisdictions. In my view, where adherence and coherence are lacking internally, any claims
towards possible convergence between countries in adopting common principles of treaty
interpretation, would be premature. These questions are not static, however, and they must
be tracked continually if we are to see that the VCLT increasingly forms a part of a
coherent regime of international law.
34

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Draft: Do Not Cite without Permission of Author

Helmut Philipp Aust and Georg Nolte (eds.),

TREATY INTERPRETATION IN INDIAN COURTS:

Electronic copy available at: http://ssrn.com/abstract=2572432

Electronic copy available at: http://ssrn.com/abstract=2572432

II. THE INTERPRETATION OF INTERNATIONAL LAW IN THE INDIAN COURTS

Tribunals are not courts, though all courts are Tribunals.’15

B. Interpretation of Implementing Legislation

III. TREATY INTERPRETATION IN INDIA

IV. ADHERENCE AND COHERENCE

V. TWO KINDS OF ADHERENCE

VI. CORRESPONDING METHODS: DOING WITHOUT SAYING

various rules followed by Indian courts and the Vienna rules.

A. Ordinary Meaning and Literal Construction

B. Internal Aids to Construction

[e]xtrinsic evidence to determine the effect of an instrument is permissible where there,

Article 31 (3)(b) VCLT introduces a dynamic element to the interpretation process:

parties, their current understanding of the treaty, as established through subsequent

D. External Aids to Construction

Article 32 of VCLT corresponds to principles of external aids to construction used by

Once a domestic court determines that it is necessary to apply international law, it

F. Gaps in Corresponding Methods

Whereas it is debatable whether there is a proper analogue to systemic integration, there

VII. NOMINAL ADHERENCE: SAYING WITHOUT DOING

If the use of corresponding methods consists of ‘doing without saying,’ nominal

cases in mentioning ‘[t]he Interpretation of International Conventions is governed by

VIII. TAX TREATIES: A SELF-CONTAINED REGIME?

at the international level and domestically.

A. Interpretation of Tax Treaties: The International Context

Commentaries, and interpreted according to VCLT rules. Since there is no stand-alone

B. Interpretation of Tax Treaties: The Indian Context

1. Principles Adopted in Interpretation of Treaties

or DTAAs are identical or similar to terms employed in OECD Commentary.

2. Considerations at their Bases

IX. FROM ADHERENCE TO COHERENCE, WITH A VIEW TO CONVERGENCE

more skeptical view: ‘there is nothing so coherent as a paranoid's delusion or a swindler's

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