Treaty interpretation

Kingdom of Spain v ISL SÀRL [2023] HCA 11

In this foreign state immunity case, the High Court considers 4 key principles of treaty interpretation.

One,  statutory provisions are to be interpreted consistently with international law11.  Two, treaties should have the same meaning in all party states12.  The Vienna Convention on treaty interpretation applies rather than ‘particular domestic rules’ of interpretation13.  Three, all language texts of treaties are equally authoritative14, and the meaning to be adopted is that ‘which best reconciles the texts, having regard to the object and purpose’.  Four, any waiver of immunity requires a ‘high level of clarity and necessity … because it is so unusual’15.

This principle is from Episode 96 of interpretation NOW!


11 (at [16]), Al-Kateb [2004] HCA 37 (at [63]), cf DMQ20 [2023] FCAFC 84.

12 (at [38]), Povey [2005] HCA 33 (at [25]) & other cases cited.

13 Macoun [2015] HCA 44 (at [69]) & other cases cited.

14 ICSID Convention (testimonium), Art 33(1) of the Vienna Convention.

15 (at [28]), ALRC Report No 24 Foreign State Immunity (at [79]) cited.