Book Symposium: Interpretation in International Law–What’s In A Game?

by Daniel Peat and Matthew Windsor

[Daniel Peat and Matthew Windsor are PhD candidates at the University of Cambridge Faculty of Law, and members of Gonville and Caius College.]

International lawyers have long realised the importance of interpretation to their academic discipline and professional practice. Interpretation in international law has traditionally been understood as a process of assigning meaning to texts with the objective of establishing rights and obligations. This has led to an almost exclusive focus on the interpretive methodology encapsulated in the Vienna Convention on the Law of Treaties. Outside the auspices of the VCLT rules, interpretation in international law has rarely been regarded as a distinct (and broader) field of inquiry. As new insights on interpretation have abounded in other fields, international law and international lawyers have continually granted an imprimatur to rule-based formalism. Given that interpretation is a pervasive phenomenon in international law that is irreducible to analysis of the VCLT rules, a greater methodological awareness of interpretive theory and practice in international law is imperative.

We convened a conference on interpretation in international law at the Lauterpacht Centre and the Faculty of Law at the University of Cambridge in 2013. The aim was to provoke fresh insights on a foundational topic. The result is a recently published book with Oxford University Press, Interpretation in International Law. The book is co-edited by Andrea Bianchi, Professor of International Law at the Graduate Institute, Geneva. A symposium of papers dealing with discrete interpretive topics from the conference also featured in the Cambridge Journal of International and Comparative Law.

In his preface, James Crawford describes our book as ‘teeter[ing] intriguingly between interpretation in the way international lawyers normally think about it and interpretation as everything they think about’. International lawyers normally think about interpretation with reference to the rules in the VCLT. Indeed, the literature on treaty interpretation is voluminous. This work is invaluable: it provides states and other actors in the international arena with a guide to the conventionally accepted norms of interpretation in the community within which they operate. But this project does not tell the whole story. It does not interrogate the larger purpose of interpretation in the international legal system, whether and why the VCLT rules act as a constraint on interpretation in practice, whether actors’ interpretations differ according to their professional identities, or if strategy motivates interpretive choice. In their mantra-like recital of the VCLT as a formal methodology for the interpretation of international legal rules, international lawyers till a bounded field, largely insulated from interdisciplinary influence or insight. A greater awareness of broader interpretive debates helps shed light on both the underlying premises and shortcomings of the rule-based orthodoxy. In short, interpretation in international law is not an island.

Our introductory chapter to Interpretation in International Law, which is freely available here, surveys the ‘state of play’ of scholarship on interpretation in international law, before analysing alternative approaches to the ascertainment of meaning. Such approaches reveal that any interpretive inquiry rests upon contestable bases regarding meaning, language and the importance of societal context and norms. The view that the interpretive inquiry in international law is reducible to, and exhausted by, the VCLT rules is overly reductionist.

The book is structured around the metaphor of the game, which captures and illuminates the constituent elements of an act of interpretation. The object of the game of interpretation is to persuade the audience that one’s interpretation of the law is correct. There are players who are engaged in the game, namely functionally specialised interpretive communities who deploy international law as a professional vocabulary. The VCLT rules of play are known and complied with by the players, even though much is left to their strategies. There is also a meta-discourse about the game of interpretation – ‘playing the game of game-playing’ – which involves consideration of the nature of the game, its underlying stakes, and who gets to decide by what rules one should play.

The game metaphor is more than a rhetorical flourish. It offers a heuristic framework that highlights topics of crucial importance in order to foster innovative thinking on interpretation in international law. The argument is not that interpretation is a game, but that particular facets of the comparison are illuminating and capable of capturing both routine interpretive operations as well as those advances that transform the law. To say that interpretation in international law is akin to playing a game does not imply that the process is frivolous or that the parties involved in interpretation are not seriously engaged in it. Rather, in its attention to interpretation as a complex social practice, and in its focus on socio-historical contingency and the relationship between freedom and constraint, the game metaphor helps reinsert some vitality in a discipline that has too often become bogged down in formalist interpretive technique.

Interpretation in International Law breaks free from a myopic focus on the VCLT to reveal interpretation as a phenomenon that permeates all areas of international law as a discipline and professional practice. We hope to convince readers that the game metaphor crystallises a set of concerns that are too often neglected in a formalist rule-based paradigm. Topics canvassed in the book are deliberately eclectic, ranging from theories of rhetoric and argumentation to the sociology of precedent, from cognitive frames of interpretation to the politics of hermeneutics.

Over the next few days, several of the book’s contributors will introduce their chapters. Duncan Hollis examines the object of the game of interpretation in terms of its existential function. Michael Waibel analyses the players of the game by discussing the nature of interpretive and epistemic communities in international law. Julian Arato confronts the paradox that, despite the unity and universality of the VCLT rules, there is a practice of affording some treaties differential treatment in the process of interpretation. Fuad Zarbiyev characterises the interpretive method of textualism in strategic terms, revealing the historical contingencies that led to it being regarded as sacrosanct in international law. Philip Allott’s contribution to the symposium is emblematic of the aims of the book: to promote critical and open-minded reflection on interpretive practices and processes in international law.

We are grateful to our contributors for their participation, and to Opinio Juris for hosting this discussion. We hope that the insights contained in Interpretation in International Law, and this symposium, will stimulate further research on interpretation that does not shy away from methodological innovation and creativity.

http://opiniojuris.org/2015/04/06/book-symposium-interpretation-in-international-law-whats-in-a-game/

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