Treaty Interpretation

by

Isabelle Van Damme

• LAST REVIEWED: 26 May 2016
• LAST MODIFIED: 23 March 2012
• DOI: 10.1093/obo/9780199796953-0053

Introduction

The practice and theory of treaty interpretation form a classical theme of the law of treaties. As with other parts of international law, the scholarly interest in this theme has developed in cycles. Many of the interpretive arguments made before the advent of international courts and tribunals and applied in judicial reasoning are rooted in the early writings of lawyers like Hersch Lauterpacht, Arnold McNair, and Gerald Fitzmaurice rather than in the work of the UN International Law Commission (ILC) and the result thereof, the 1969 Vienna Convention on the Law of Treaties (VCLT). Academic writing has focused primarily on judicial pronouncements on the meaning of a treaty and on the process through which interpretive conclusions are reached. This feature logically has become more articulated in recent years against the backdrop of the growing number of active forums of dispute resolution in international law. Treaty interpretation, as a subject of an academic genre, is usually approached from either a practical perspective, analyzing the practice of treaty interpretation to deduce theoretic and systemic conclusions on the topic, or a theoretical perspective, using practical examples as illustrations for the points made. The aim of this bibliography is to catalogue both types of publication and to highlight publications useful to researchers and practitioners working on or writing on treaty interpretation in different fields of international law as well as in domestic contexts. Less attention is given to writings commenting on how a treaty was interpreted in a single case of a particular international court or tribunal without drawing conclusions that easily may be used outside the context of that specific judgment. The predominant strand of scholarship focuses on the application of a single principle of interpretation by a single court or tribunal, often in a single case or a few cases. Another strand focuses exclusively on a sole principle of interpretation but examines its application from a comparative perspective. Yet other, less popular strands of literature focus entirely, but with different degrees of intensity, on the interpretive practice of a single international court or tribunal, allowing one to reach conclusions about the judicial function assumed by that court or tribunal or on all principles of treaty interpretation as applied by diverse courts and tribunals. Finally and fortunately, a renewed interest in critical theory of treaty interpretation has emerged, counterbalancing—and sometimes uniquely complementing—the positivist tone of most scholarship available. The views expressed in this bibliography are made in a personal capacity and do not reflect the views of the institution in which the author serves.

General Overviews

A significant part of the authoritative general commentaries on the law governing treaty interpretation was authored by a small group of lawyers who were intimately linked to academia as well as practice. Through commentaries on judgments of the Permanent Court of International Justice (PCIJ) and later of the International Court of Justice (ICJ) and arbitral awards, they articulated in a systemic manner the principles of interpretation applied in those decisions. At the same time, through their involvement in dispute settlement before and on these same judicial bodies, they contributed to the development of these principles. The practice of treaty interpretation dating from that period greatly shaped the debate in the International Law Commission (ILC) on the need to codify some or all principles of treaty interpretation. Indeed, the leading authors and practitioners in the field of international law often also sat on the ILC. Without depreciating the value of contemporary writing on treaty interpretation, familiarity with that literature is essential to a proper understanding of the principles and challenges of treaty interpretation (see Bos 1980a; Bos 1980b; McDougal, et al. 1994; McNair 1986; Sinclair 1984; Sur 1974; and Yasseen 1976; see also the earlier writings included in the sections History and Theory of Treaty Interpretation and Interpretation, Judicial Reasoning, and the Judicial Function). Indeed, for any novice entering this field of research or practice, reading the literature in a chronological order is imperative. The general works on treaty interpretation cited here, including more recent works, such as Aust 2007 and Gardiner 2015, have been selected on the basis of their shown ability to bridge theory and practice, their place in or appreciation for historical debates, their clarity of style and structure, and their originality in perspective or argument.

• Aust, Anthony. Modern Treaty Law and Practice. 2d ed. Cambridge, UK: Cambridge University Press, 2007.

  Offers a solid starting point for the study of any aspect of the law of treaties. Aust considers that the principles codified in Article 31 of the Vienna Convention on the Law of Treaties do not reflect, as is widely accepted, a hierarchical relationship but instead demonstrate a logical progression. He questions whether Article 31(1) gives expression to the so-called textual approach, concluding instead that it reflects the relevance of the (con)textual and teleological approaches.

• Bos, Maarten. “Theory and Practice of Treaty Interpretation.” Netherlands International Law Review 27.1 (1980a): 3–38.

  DOI: 10.1017/S0165070X00013784

  The first installment of Bos’s study of the subject; for the second installment, see Bos 1980b.

• Bos, Maarten. “Theory and Practice of Treaty Interpretation II.” Netherlands International Law Review 27.2 (1980b): 135–170.

  DOI: 10.1017/S0165070X00013905

  In two installments (see Bos 1980a) Bos offers a helpful structure, with attention for detail, for studying the subject of treaty interpretation, whether on a theoretical basis or viewed from a practical perspective through an inquiry into the interpretive practice of international courts or tribunals. He approaches treaty interpretation as belonging to the “atmosphere” of law and without any constraint based on the structure imposed by Articles 31–33 of the Vienna Convention on the Law of Treaties.

• Gardiner, Richard K. Treaty Interpretation. 2d ed. Oxford: Oxford University Press, 2015.

  Among the most valuable contributions to the cyclical movement of renewed interest in treaty interpretation. Successfully bridges theory and practice, approaching the Vienna Convention on the Law of Treaties as the infrastructure for interpreting any given treaty. Demonstrating familiarity with the pragmatism underlying any interpretive exercise, Gardiner focuses as much on the meaning of these provisions, and on other noncodified principles of treaty interpretation, as on the skills needed to put them to use.

• McDougal, Myres S., Harold D. Lasswell, and James C. Miller. The Interpretation of International Agreements and World Public Order: Principles of Content and Procedure. Dordrecht, The Netherlands: Martinus Nijhoff, 1994.

  Develops techniques for finding the meaning of treaties in elements extraneous to their text. Criticizes the dogmatism of conformity-imposing textualism and defines elements and procedures that increase the probability of a result closely approximating the actual shared expectations of the parties to a treaty. Also recommended is Gerald Fitzmaurice’s entertaining and critical review of this book in American Journal of International Law 65.2 (1971): 358–373.

• McNair, Arnold D. The Law of Treaties. Oxford: Clarendon, 1986.

  A reissue of the 1961 edition (first published in 1938). Defends the position that the main task of international courts and tribunals is giving effect to the intention of the parties expressed in the words used by them in the light of the surrounding circumstances. Contemporary writing on treaty interpretation often arrives at the same conclusions as McNair, demonstrating that the debates about this theme of the law of treaties remain mostly unaltered.

• Sinclair, Ian. The Vienna Convention on the Law of Treaties. 2d ed. Manchester, UK: Manchester University Press, 1984.

  Recalls that doctrinal debate is yet to crystallize into consensus on the ultimate objective of the interpretive process. Shows that courts and tribunals often pay lip service to Articles 31–33 of the Vienna Convention on the Law of Treaties but then do something else. Concludes that the VCLT represents an economic code of aids, leaving uncodified other principles of common sense that should be included in the catalogue of aids available.

• Sur, Serge. L’interprétation en droit international public. Paris: Librairie Générale de Droit et de Jurisprudence, 1974.

  Explores what relation between law and politics is embedded in the process of interpreting indeterminate legal texts produced by a divided and evolving international community of states. Provides a powerful argument about the political and social function of interpretation by the international judge in response to the ILC’s strictly legal approach to the matter.

• Yasseen, Mustafa K. “L’interprétation des traités d’après la Convention de Vienne sur le droit des traités.” Recueil des cours 151 (1976): 1–114.

  Offers a conventional, or even conservative, but nonetheless clarifying account of treaty interpretation without perceiving treaty interpretation as a task that is by necessity creative. Expresses some hesitance about the value of codifying principles of treaty interpretation, finding that codification comes at the cost of flexibility. Methodologically walks through Articles 31–33 of the Vienna Convention on the Law of Treaties, reflecting on and detailing mainstream thinking on the subject. Available online.