Academic journal article Proceedings of the Annual Meeting-American Society of International Law

The Shifting Sands of Treaty Interpretation

Academic journal article Proceedings of the Annual Meeting-American Society of International Law

The Shifting Sands of Treaty Interpretation

Article excerpt

This panel was convened at 9:00 am on Saturday, April 12, by the Dispute Resolution and International Legal Theory Interest Groups. It was moderated by Ian Johnstone, Associate Professor of International Law at the Fletcher School of Law and Diplomacy, Tufts University, who introduced the panelists: David Berry of the University of the West Indies; Isabelle Van Damme of Clare College, University of Cambridge; Gregory Fox of Wayne State University Law School; and Duncan B. Hollis of Temple University's School of Law. *


By Ian Johnstone ([dagger])

Among the various sources of international law, treaties are thought to rest on the firmest theoretical foundation as they embody the explicit consent of sovereign states formalized in a written text. Similarly, treaty interpretation would not seem to give rise to deep theoretical controversies, with the rules systematically laid out in the Vienna Convention on the Law of Treaties. And yet debates about treaty interpretation are as old as international law itself. The "ordinary meaning" of words can rule out highly implausible interpretations, but rarely provides a single right answer to actual legal disputes. The Vienna Convention asks us to look at context, object and purpose in interpreting the text, but rather than settling the theoretical questions, this simply transfers the inquiry to another level: what are the relevant contextual instruments and how are 'object and purpose' to be determined? The intentions of the drafters may provide some guidance, but what if--as is almost always the case--those intentions vary or the circumstances to which the treaty is being applied did not exist at the time of drafting?

This familiar list of interpretive strategies and the theoretical questions surrounding them are all the more important in an "age of treaties," when legal problem-solving is less focused on the creation of new legal regimes than the understanding of existing obligations. Its connection to the theme of this conference is apparent: to what extent do any or all of these interpretive techniques reach beyond law? Is treaty interpretation simply a matter of stating what the law is, or are the interpreters making law, based on values and policy choices? If the latter, are the values and policies embodied in the law, or do they reflect the interpreter's political preferences? As the description for this panel suggests, in many ways, the choice of an interpretive theory is a proxy for a larger debate about international law's relation to politics.

That debate, moreover, plays out not only in courts--at the national and international levels but also in other venues where legal rules are discussed, interpreted and applied. Indeed, most interpretive disputes are not settled in courts. Many are debated in quasi-judicial committees and non-judicial bodies in international organizations. Often the final interpreters of a treaty are representatives of the contracting parties themselves, who are institutionally predisposed to interpretations preferred by their governments. From that perspective, treaty interpretation is deeply political. But does that imply that words mean nothing other than what the government legal adviser says they mean? Such a radically subjective conception of interpretation seems to defy common sense: if it were true, then why is agreement among legal interpreters so common? Perhaps it is because they are part of an interpretive community, subject to the same discipline--the same techniques of legal argumentation--that constrains judges. But how great a constraint is that?

This panel wrestles with those and other theoretical questions addressed explicitly or implicitly in various dispute settlement bodies. Concrete cases are used to illuminate the role of politics in international law, and to consider whether and in what ways law stands separate from international politics.

* Professor Fox did not contribute remarks to the Proceedings. …

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