Book Symposium: The Rise of Interpretive Communities in Treaty Interpretation

by Michael Waibel

[Michael Waibel is a University Lecturer in Law at the University of Cambridge and Deputy Director of the Lauterpacht Centre for International Law.]

The rise of distinct interpretive communities goes hand in hand with the much debated topic of fragmentation in international law. Even though the VCLT’s role in treaty interpretation has been studied extensively, how interpretive communities affect treaty interpretation has received less attention. Who the treaty interpreters are and how they approach the task of interpretation likely matters for interpretive outcomes.

Compared to national law, interpreters of international law are much more diverse. They come from different cultural and educational backgrounds and have varied professional experiences. They include judges on international and national courts, government legal advisers, lawyers in private practice, scholars and activists. They are often part of several, overlapping interpretive communities who speak the same language and share the same background assumptions – and this membership may shape how they approach the task of treaty interpretation.

Consider national judges. They may be particularly prone to interpreting treaties through the lens of their own legal system and in light of their particular specialization such as tax or criminal law. As a rule, national judges form part of diverse national interpretative communities, shaped largely by their own legal culture (including approaches to interpretation), rather than part of a global and interconnected community of international lawyers who speak (roughly) the same language. Going forward, diversity in treaty interpretation by national judges could be a major source of interpretive fragmentation, depending on what role interpretive communities along national lines play.

But all lawyers are, to a considerable degree, a product of their own culture, training and professional experience. As Frederick Dunn remarked in the 1930s, the international lawyer ‘carries with him the whole collection of habitual ways of acting, of fixed ideas and value judgments of his own community, which he is prone to expand into ideas of universal validity’: The Diplomatic Protection of Americans in Mexico (1933) at 105–107. James Crawford similarly observed that international lawyers are ‘commonly municipal lawyers first, and bring to the international sphere a collection of presumptions and perceptions as part of our training’: Chance, Order, Change: The Course of International Law (2013) at para 185.

How does one become a member of these interpretive communities? It varies from area to area, and from one state to the next. As a rule, the harder it is to join an interpretive community, the more influential the interpretation of that group is. For example, while it typically takes several decades of experience to join the interpretive community of international judges (particularly the ICJ), it is easier to join the interpretive community of human rights activists.

Unlike interpretation in literature, how much weight an interpretive community and its members carry is not just a matter of prestige, but has consequences. While more accessible interpretive communities mostly lack any binding authority, the interpretive community of, for example, ICJ judges or WTO Appellate Body members has the power to issue binding decisions. Others, such as government legal advisers have no power to issue such decisions, but are extremely influential in treaty interpretation because the bulk of interpretation in international law remains auto-interpretation – by the states concerned of their own interpretation.

Besides the diversity of the actors, the growing trend towards specialization in international law (mirroring a development in national law a century ago), accompanied by the “tunnel vision” symptom, fostered the emergence of distinct interpretive communities. Such tunnel vision, focusing on the unique goals of each specialization, can lead to the chopping of international law into discrete “blocks”. Consequently, generalist international lawyer idealized in Schachter’s famous “Invisible College of International Lawyers” are an endangered species.

Today, there are interpretive communities of human rights lawyers, investment lawyers and environmental lawyers for example. One manifestation of this centrifugal trend are more specialized professional societies, such as the Society of International Economic Law, which complement more generalist societies, such as the American Society of International Law. Such bodies have played a crucial role in fostering a sense of a broad, unified interpretive community of international lawyers in the 20th century.

An important implication of this tunnel vision is that specialist interpretive communities tend to regard their own area of expertise as supreme and pay little, or no, attention to other unrelated areas of international law: Bianchi, “Gazing at the Crystal Ball (again): State Immunity and Jus Cogens Beyond Germany v Italy” (2013), 4(3) JIDS 457. Interpretive communities pursue various strategies in order to enhance their prestige and influence: 1) some of the influential ones screen new members before admission, as mentioned above; 2) they cooperate with other actors to spread their views and increase support for their interpretation (e.g. with governments and practicing lawyers); and 3) they advance competing normative visions of international law while at the same time employing the VCLT’s widely accepted, open-ended principles of interpretation.

The rise of a larger number of distinct interpretive communities resulted in international law being “sliced up in institutional projects that cater for special audiences with special interests and special ethos”: Koskenniemi, “The Politics of International Law – 20 Years On” (2009) 20 EJIL 1, at 9. As Bianchi observed, interpretive communities can be seen both as a deadly threat to the international legal order, but also as a sign of the sophistication and expansion of the realm of international law: “Looking Ahead: International Law’s Main Challenges” in D Armstrong (ed), Routledge Handbook of International Law (Routledge 2009) at 404.

Schachter’s “invisible college” of international lawyers seems to have largely disappeared and has been replaced by a patchwork quilt of specialized international lawyers. Diverse interpretive communities have come to play an increasingly important role in treaty interpretation. This development raises concerns about the unity of international law, not just in relation to its interpretive methods, but also in relation the system as a whole. The challenge going forward is how to achieve a reasonable balance between specialization and fragmentation.

http://opiniojuris.org/2015/04/07/book-symposium-the-rise-of-interpretive-communities-in-treaty-interpretation/

One Response

  1. I wonder if we can speak of “fragmentation” happening within domestic legal regimes in their use of international law as well? I’m thinking of tax tribunals in India and their use of the VCLT. (Which I also commented on in reply to a recent post). At the international level, some commentators have referred to international tax law principles, including the principles governing their interpretation, as a ‘lex specialis’ cordoned off from the general principles of Articles 31-33. At the international level, the notion of ‘“leges specialis’” or ‘“self-contained regimes’” is connected to the characterization known as the ‘“fragmentation of international law.’” At the domestic level, itt has been noted, correctly, that some principles of interpretation occur only in the interpretation of tax treaties. Alternatively, it has been suggested that because of its generality the VCLT ‘cannot make allowance for the peculiarities of tax treaties.’ Unlike, say investment arbitration, the relevant interpretative community for tax law is composed typically of national courts and administrative agencies given the absence of commonly used dispute settlement methods at the international level. Prof. Waibel has written elsewhere that frequency of the use of the VCLT differs depending on the interpretative community, and since tax law is rarely discussed by international tribunals, tax disputes reach the international plane typically only incidentally, as part of a larger dispute involving other elements. Tax law might offer a good illustration of interpretive fragmentation. In India, however, the implications of specialization are different. Courts almost exclusively refer to the VCLT when interpreting tax treaties. What might be the reasons for this? First, the treaties signed by India are neither fully based on the UN Model nor on the OECD Model. India has been adopting a dual approach in negotiating tax treaties. Certain articles of the Indian tax treaties are based on the language in the OECD Model while others are adapted from the UN Model. In this mixed situation, where recourse to international meaning is nonetheless valued, the VCLT provides a common minimum interpretive canon. India is an observer to the OECD and adopts a hybrid approach based on OECD Model Tax Convention on Income and on Capital or the United Nations Model Convention, and the Commentaries attached to them that illustrate and interpret the provisions of the models themselves. According to Waibel, ‘(w)hether tax treaty interpretation conforms to the VCLT’s interpretive framework is unclear,’ but it does appear that Model Conventions and Commentaries take precedence as lex specialis over the principles set out in the Vienna. For the Indian courts, however, tax treaties form a different kind of ‘special law’ drawing upon the principles set out in the VCLT. In a way, the practice in India can be considered to be a domestic version of what Prof. Waibel has called ‘interpretative fragmentation.’ But it is worth noting that it is precisely the area of tax law that brings in the VCLT most explicitly. Far from denying the applicability of the VCLT and the adoption of special rules, courts embrace Articles 31 and 32 in DTAA cases. More on this here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2572432

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