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Public International Law - State Practice. International Air Transport Association v. Canada (Transportation Agency)
In International Air Transport Association v. Canada (Transportation Agency) (SCC, 2024) the Supreme Court of Canada dismissed an appeal, here involving "the vires of the Air Passenger Protection Regulations, SOR/2019-150 (“Regulations”) [SS: under the 'Canada Transportation Act'], and the nature and scope of the “exclusivity principle” set out in Article 29 of the 1999 Convention for the Unification of Certain Rules for International Carriage by Air" [SS: the 'Montreal Convention'].
Here the court considers the public international law doctrine of 'state practice':(5) Consideration of State Practice
[58] Before concluding my review of the scope of the Montreal Convention and Article 29, I would address the question of state practice, which both parties rely on.
[59] Per Article 31(3) of the Vienna Convention, “[t]here shall be taken into account together with the context ... any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation” (see also Yugraneft Corp. v. Rexx Management Corp., 2010 SCC 19, [2010] 1 S.C.R. 649, at para. 21). The Attorney General notes that the practice of parties to a treaty is of utmost importance in its interpretation because “it constitutes objective evidence of the understanding of the parties as to the meaning of the treaty” (R.F., at para. 80, quoting Kasikili/Sedudu Island (Botswana/Namibia), Judgment, I.C.J. Reports 1999, p. 1045, at para. 49). Thus, I cannot agree with the appellants when they submit that state practice should be considered only “when the text of the treaty is obscure or ambiguous” (A.F., at para. 100).
[60] The Federal Court of Appeal found that 73 state parties to the Montreal Convention have adopted schemes providing for minimum standardized compensation in case of cancellation, denied boarding and/or delay. The adoption of these schemes, without objection from other state parties, reveals common acceptance by state parties that they are compatible with the Montreal Convention and can operate in parallel to it (paras. 167-68). The Federal Court of Appeal stated:... state practice confirms that standardized compensation for the inconvenience resulting from flight cancellation, denial of boarding and/or delay is compatible with and can operate alongside the individual damages prescribed by the Montreal Convention. The jurisprudence of the ECJ and Regulation 261/2004 constitute the law in Europe, and the criticism of scholars (including those of the two professors who have filed expert reports on behalf of the appellants) does not supersede state practice when it comes to interpreting an international treaty. [para. 170] [61] The appellants argue that this finding was in error, and that state practice that is “driven by considerations other than the member States’ obligations pursuant to the [Montreal] Convention” cannot constitute state practice for the purposes of Article 31(3) of the Vienna Convention (para. 133). The Attorney General responds that “state practice” means “any practice that shows that the parties ‘have taken a position regarding the interpretation of the treaty’” (R.F., at para. 84). . International Air Transport Association v. Canadian Transportation Agency
In International Air Transport Association v. Canadian Transportation Agency (Fed CA, 2022) the Federal Court of Appeal considers international 'state practice' as an evidentiary factor in interpreting treaty and local statutory law [paras 156-170].
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