On the Nature of Interpretation in International Law

European Journal of International Law, 2020

In the previous century, the International Law Commission (ILC or Commission) followed a 'codification by convention' paradigm in relation to the law of treaties, whereby it mainly prepared texts intended to form the basis of future conventions. The 1969 Vienna Convention on the Law of Treaties (VCLT) 1 is the prime example of the 'codification by convention' paradigm in the law of treaties. This paradigm was perceived as the central way of codifying and developing customary international law (CIL). On the cusp of a new era, the Commission has returned to the law of treaties. In four topics, the Commission-in documents that are intended to remain non-binding-fills gaps in and interprets a treaty in force, the VCLT, and develops CIL set forth therein and beyond the VCLT. This article focuses on one aspect of this new development in the Commission's work: the fact that the Commission interprets. The Commission has interpreted and interprets in other topics for different reasons and to various degrees. 2 However, while in other topics interpretation is tangential, in the four topics discussed

The treaty today represents the main regulate the international relations, because of the clarity and precision with which there are ascertained the agreements concluded between the subjects of international law. Any author interested in the Law of Treaties has analyzed the problem of interpretation, a particularly important and complex issue. The legal interpretation is the foundation of law, the need for these operations lies in clarifying the meaning of legal norms for its correct applic of used terms, the interaction and inter involves distinct meanings, generated by the specifics of each branch of law, and in this paper we showed the theoretical and practical interest of interpreting a treaty in the negotiation and drafting its text stage, both in its implementation phase or settling disputes concerning its execution. As research methods for the completion of the paper we used analysis a matter, in particular the Vienna Convention on the Law of Treaties of 1969, the doctrinal opinions of Romanian and foreign legal literature, the practice of states and jurisprudence in this area.

Fragmentation of international law can occur at two levels: at the level of substantive rules (applicable law), and, at the level of interpretive method. Whereas the substantive aspect of fragmentation has spawned an enormous literature over the last decade, interpretive fragmentation has received less attention. The focus of this chapter is on this second dimension: does international law know a single, unified method, or equivalently, regime or approach to treaty interpretation? Articles 31-33 VCLT purport to set out a unified approach to interpretation. Yet this chapter contends that the VCLT constrains treaty interpreters only on the margins, and that varieties of treaty interpretation lurk behind the veneer of the VCLT’s general interpretive framework. On closer inspection, interpretive practices in international law diverge, just like in national law. The emergence of specialised interpretive methodologies in international law mirrors the earlier development of statutory and contract varieties of interpretation in domestic law.

In this interdisciplinary paper, a legal scholar and a linguist aim to combine the scientific strands of linguistics and international law. Linguistics, and especially pragmatics, has not yet been fully integrated into the study of interpretation in international law, although some international legal scholars have started to apply the labels "linguistic" or "pragmatic" to their work on interpretation. While they do take into account research in the field of law and language, there is a tendency to follow very traditional approaches according to which semantics and pragmatics are divided into neatly separated domains. We posit a parallel between legal interpretation and pragmatics. Pragmatics has evolved from the so-called "wastebasket" of linguistics to become a fully-fledged discipline. The same should be true of legal interpretation and its study in international law, which should no longer be considered merely a legal afterthought -as if meaning were "all in the text". We argue that scientifically grounded pragmatics should be applied to legal interpretation. Recent research in linguistics and pragmatics, and the concepts that such research has provided, may also help us to build a stronger scientific foundation for the debate within international law on interpretation. Integrating pragmatics may allow for a more suitable model of legal interpretation than the sociological approaches some international lawyers have turned to. This may also provide a plausible link between the actors and structures of legal interpretation.

2015

Journal of Asian and African Social Science and Humanities

Treaty is not static, evolutively interpreted. Interpretation as it seems has always had a prominent and contentious place in international adjudication, and its application has been further enhanced for a century. The significance attached to the interpretation of treaties cannot be overemphasized, because it is of great importance that only the intent of a treaty is activated. The Vienna Convention on the Law of Treaties has been applied towards the interpretation of treaties. This treaty covers the issue of interpretation and the various methods which shall be applied during adjudication with respect to interpretation of treaties. It is necessary to consider the nature and operation of evolutive treaty interpretation in various bilateral and multi lateral treaties-Whether it is operating under Vienna convention law of treaty or under separate heading.

In: TLT (Transnational Legal Theory); Vol. 5; pp. 128-157, 2014

There is an increasing tendency to frame international legal discourse in terms of regional designations. We speak, for example, of European or American approaches or of Latin American international law. This development could seriously impact the perception of international law. The present article attempts to deepen the understanding of what happens when we think about international law and international legal theory in national or regional terms. The article looks at different approaches to treaty interpretation which have been framed as European and American, to see how this impacts on international legal discourse. In a first step, the two approaches at the Vienna Conference on the Law of Treaties will be explained. Secondly, two narratives will be developed to describe what happened in Vienna in turn as European/American or as international legal discourse. The third part reflects on the consequences of framing concepts and theories in this way, with particular reference to the rules of treaty interpretation.

Using examples from international law, the authors demonstrate the usefulness of prag-matics in studying legal interpretation. In order to do this, they draw on Relevance Theory as a major theory in modern pragmatics. In pragmatics, there is an ongoing debate on the distinction between conceptual and procedural meaning. The paper unpacks this debate and shows how it can be employed to better explain interpretive processes in international law. Procedural meaning occurs in, among others areas, connectives such as " and " and " or ". These connectives frequently appear in the provisions of international treaties. Examples of substantive and procedural norms in international treaties illustrate how procedural meaning plays a central role in interpretation. The article also reveals how interpreters of law are generally unaware of the influence of procedural meaning on their interpretive decisions.

Despite its codification by the Vienna Convention more than 40 years ago, treaty interpretation in international law continues to evolve as its function of providing predictability in international relations remains as important as ever. The voluminous recent literature testifies to the continuing scholarly interest in interpretation, even if sometimes at the cost of over-theorizing. This essay reviews six books that seek to demystify the art of treaty interpretation. Written by European scholars, the books take a fresh look at interpretation but differ in their approaches and scope of analyses. While all six authors study the interpretive practice of international courts and tribunals, Gardiner, Linderfalk and Van Damme focus on treaty interpretation; Fernández de Casadevante Romani, Kolb and Orakhelashvili also examine the interpretation of decisions by international organizations, unilateral acts and customary international law. Kolb and Orakhelashvili opt for a comprehensive, theoretically-grounded approach, whereas Van Damme focuses on the interpretative practice of the WTO Appellate Body. On the strength of her perceptive and nuanced analysis of WTO jurisprudence, the book is the best guide among the six to interpretation in international law generally. In addition to Van Damme’s work, the practitioner will also find Gardiner’s book particularly useful.