09 Apr Book Symposium: Textualism in Treaty Interpretation–A Genealogy
[Fuad Zarbiyev is an Associate in the International Arbitration Group of Curtis, Mallet-Prevost, Colt & Mosle LLP.]
The interpretation discourse in modern international law is dominated by a textualist paradigm. This claim may seem empirically wrong if it is taken to mean that nothing other than eo nomine textual arguments features in the international legal discourse. After all, the interpretive regime set forth in the Vienna Convention on the Law of Treaties seems to put the terms, the context, and the object and purpose of the treaty on an equal footing. But this does not disprove the dominant status of the textualist paradigm. As a matter of the Vienna Convention regime, context is for instance nothing other than a slightly enlarged text. Likewise, object and purpose is not something independent of the text, but a parameter that can hardly claim relevance in the interpretive discourse without a textual anchoring.
Why has textualism come to assume such prominence in a legal system in which consensualism has traditionally been and is still said to be at the heart of legal commitments? Is it not paradoxical that intentionalism, which seems more deferential to state consent, is systematically discredited as an interpretive philosophy in international law?
No persuasive answer can be found to such questions in the international case law or the scholarly works uncritically reproducing it both of which seem to suggest that the interpretive regime set forth in the Vienna Convention is of a temporally boundless validity. Despite the fact that the treaty interpretation rules embodied in the Vienna Convention have been applied to treaties dating to the nineteenth century, the notion that the interpretive regime embodied in the Vienna Convention can claim a sort of trans-historical validity does not stand up to an historically informed scrutiny. Consider the following two interpretive statements separated from each other by a time interval of 87 years. The first statement issued by an arbitral tribunal in 1897 reads as follows:
[W]e are to interpret and give effect to the treaty of April 15, 1858, in the way in which it was mutually understood at the time by its makers … It is the meaning of the men who framed the treaty which we are to seek, rather than some possible meaning which can be forced upon isolated words or sentences.
The second statement, issued by the Iran-US Special Claims Tribunal in 1984, holds that:
[T]he Vienna Convention does not require any demonstration of a ‘converging will’ or of a conscious acceptance by each Party of all implications of the terms to which it has agreed. It is the ‘terms of the treaty in their context and in the light of its object and purpose’ with which the Tribunal is to be concerned not the subjective understanding or intent of either of the Parties.
Two interpretive philosophies farther apart from each other are hardly conceivable. A series of historically contingent factors can plausibly explain the gap between the epistémés underpinning these philosophies. The first among such factors is the phenomenon of permanent international tribunals. The rise of permanent tribunals seems to have gone hand by hand with the increasing marginalization of the intention of the parties in treaty interpretation. Traditionally considered as common body of the parties, arbitral tribunals tended to be careful in tracing back their decisions to the intention of the parties. In contrast, due to their independence from the parties before them, permanent tribunals did not feel the same discursive constraints and were able to place priority on text. The primary sign of this tendency is of course the decrease of the importance attached to travaux préparatoires in treaty interpretation.
Another factor worth considering is the ideological division of the international society in the 1950s-1960s when the Vienna Convention on the Law of Treaties was being drafted and finally adopted. Despite their strong political preference for the voluntarist conception of international law, the countries from the communist bloc vehemently rejected any attempt to undermine the priority status of textualism during the Vienna Conference on the law of treaties. Their position must be viewed against the ideological stakes at issue: the notion that communist countries could share a common intention with “bourgeois” states was hardly acceptable on ideological grounds as explained by the leading Soviet international lawyer, Grigory Tunkin.
Decolonization and the rise of newly independent countries on the international plane seem to be another relevant factor. While newly independent countries had a clear preference for law-making by treaties as opposed to customs over which they had no control, intentionalism could not have been an attractive interpretive approach for them. For one thing, intentionalism carried with it a serious potential for manipulation of the scope of their treaty commitments. For another, intentionalism presented the risk that the common intention of the original parties to a significant number of multilateral treaties to which newly independent countries became parties could be controlling. Neither of these prospects was acceptable to newly independent countries in view of their acute sovereignty-sensitivity.
Such contingent institutional and political factors should be seen together with the clear preference textualism has traditionally enjoyed in the intellectual history of international law, which explains that the historical contingency of textualism is seldom questioned by international law scholars. Due to the decentralized nature of the international society, every State enjoys the power to interpret its own rights and obligations. If unconstrained, this power of auto-interpretation can carry with it an enormous dispute-generating potential the danger of which is self-evident in international law where no state can be compelled to submit its dispute with another to a binding dispute settlement mechanism. The pro-textualist preference of international lawyers reflects their constant search for solid foundations that cannot be manipulated by states pursuing their own interests.
A genealogical inquiry along the lines above shows that treaty interpretation is not governed by immutable rules; it is a “language game” played by historically situated actors the historical situation of which directly impacts what the game is and how it should be played.