Disciplining Rules? Compliance, the Rules of Interpretation, and the Evaluative Dimension of Articles 31 and 32 of the VCLT

Abstract

In what way do Articles 31 and 32 of the VCLT constitute ‘rules’ of interpretation? In this article, I explore whether these provisions might be considered to be ‘disciplining rules’, to use Owen Fiss’ terminology. Such rules perform both directive and evaluative roles, guiding the interpreter as well as acting as a benchmark against which to evaluate interpretation. Yet, both the history and the practice of the VCLT provisions suggest that Articles 31 and 32 sit uneasily with the concept of disciplining rules. Instead, I suggest that they might better be thought of as rules in a looser, non-legal sense of the term, adherence to which signals membership to a certain community.