It is easy to talk about a law and to refer to its provisions: law XY states this and that and it is thus the case that we have to stick to it. But is it really this simple?
Obviously it is not. Apart from the long-standing debate on what ‘law’ actually is, at least in international law it also depends on how a specific treaty is interpreted. This issue is also part of the ‘treaty on treaties’, the Vienna Convention on the Law of Treaties (1969), which explicitly refers to treaty interpretation in several articles.
Based on these articles, paired with state practice of interpretation, there are at least three different ‘schools’ of treaty interpretation.
Schools of treaty interpretation
Textual interpretation: In this school, it is the mere text which is of relevance. This means that it is the text of a treaty and nothing else that counts in order to determine its meaning. Based on the common understanding of the used terms in a treaty, a treaty is interpreted in a way that does not go beyond the written word.
Teleological interpretation: In this school it is the telos, the end result, which determines a treaty’s meaning. In order to determine this, it is the motivations of the treaty’s drafters which are taken into consideration and the goal the treaty is supposed to achieve. The drafting process and the wider legal-political context are taken into consideration in this interpretation.
Evolutionary interpretation: This school includes state practice under a specific regime, meaning that a treaty can be interpreted in a way that has up to the point of interpretation shifted away from its original purpose. This school includes the contemporary political and legal environment and links the treaty to contemporary discourse. The treaty may have thus evolved from its original purpose to something new.
In principle there is not ‘right’ or ‘wrong’ interpretation and each interpreter uses a different school (in decision-making bodies, litigation procedures or legal scholarship). The conflict of interpretation rises to the fore particularly in the context of the International Convention for the Regulation of Whaling (ICRW), which I will explore in a latter post.
There is a wealth of literature available on treaty interpretation. Please find some listed below:
- Bianchi, A., D. Peat & M. Windsor (Eds.). (2015). Interpretation in International Law. Oxford: Oxford University Press
- Fitzmaurice, M. (2016). “The Whaling Convention and Thorny Issues of Interpretation,” in Whaling in the Antarctic. Significance and Implications of the ICJ Judgement. Fitzmaurice, M. & D. Tamada (Eds.). Leiden: Brill Nijhoff, 55—138.
- Linderfalk, U. (2007). On the Interpretation of Treaties. The Modern International Law as Expressed in the 1960 Vienna Convention on the Law of Treaties. Berlin: Springer.