The VCLT and the New Haven School

It seems that our discussion these past few days confirms that 40 years after the Vienna Conference the meta-questions relating to treaty interpretation remain unaltered. But perhaps it also appears that the ILC ultimately made the right decision to codify the relatively few basic principles on which agreement could be found. The Commission always made it clear that the effect of its codification was not to take away the freedom of interpreters to assess a range of considerations in reaching a conclusion on how to interpret treaty language. With varying degrees of success, international courts and tribunals have responded well to these principles, using them as guidance and justification, as tools to build credibility and exercise and assert their judicial function (sometimes in an institutional context), as instruments to achieve accountability, as techniques to order and structure their reasoning process, as means to make their decisions acceptable and comprehensible.

Practice informs that the ILC’s codification exercise might have served more useful purposes then the Commission initially expected, and in that sense the choices made by the ILC in codifying these principles and the position of the New Haven School might not have been as irreconcilable as originally perceived.