Taking the Rules of Interpretation Seriously, But Not Literally? A Theoretical Reconstruction of Orthodox Dogma

Abstract

For international lawyers, the rules of treaty interpretation in Articles 31-33 of the Vienna Convention are 'the only game in town'. The Vienna Convention rules have had the whip-hand in international legal scholarship and practice for several decades now, but is this almost imperiously held belief justified? Is it even relevant whether that is so, given their overwhelming practical importance? Behind the (contentious) claim that these rules are always binding law lies, however, a theoretically much more interesting, yet fundamentally unsustainable second argument.

It is that this set of norms somehow displace the process of ascertaining the meaning-content of written law, the legal epistemic process. The rules of interpretation are seen as regulating the legal process of the applicative construction of meaning by the organs of international law. It is, in the last instance, doctrine's attempt to control, via interpretation norms, how treaties are construed by tribunals.

The present article is a critique, on the basis of the Pure Theory of Law, of this orthodox international-legal conception of interpretation. There are severe limitations to what interpretation can do as a matter of legal theory. Given these limits, the article then proceeds to reconstruct the possible meanings and uses of the Vienna Convention rules.

Keywords: treaty interpretation, Vienna Convention on the Law of Treaties, legal theory, Pure Theory of Law, Hans Kelsen, application of law, courts and tribunals