The Interpretation of Treaties - A Re-examination Preface

Abstract

Several interconnected factors call for a re-examination of treaty interpretation.I will mention only three of many. First is the much noted – and contested – notionof fragmentation of international law. Here the focus is on the emergence of differentregimes, self-contained or otherwise, which manage different jurisdictions and confrontdifferent materials. One important question which follows is, do they or shouldthey all share a similar hermeneutic? Related to this is the question of whether they,in fact, share the same deep hermeneutic structure and yet have developed or aredeveloping distinctive hermeneutic languages or idioms?Associated with this, though a distinct phenomenon, is an increasing degree of recourseto agreed binding dispute settlement with specialized tribunals and a very richemerging case law – WTO, Investment, Law of the Sea, the various International CriminalLaw Tribunals are among the more noted ‘new – or not so new – kids on the block’.The World Court is also an invigorated body with a pulsating docket and the HumanRights tribunals continue to churn out judgments. Treaty interpretation is at the coreof this jurisprudence. All of these various and varied institutions in principle apply internationallaw; indeed, many even claim to be following the universal rules of the ViennaConvention when it comes to treaty interpretation. And yet we note the emergence of differenthermeneutics across the landscape of judicial treaty interpretation. For instance,the Appellate Body of the WTO has a very distinct vocabulary and hermeneutic sensibilitycompared to, say, the World Court or the International Criminal Law tribunals.Finally, there have been some important developments in both the general theoryof international law (such as GAL and the Turn to Governance) and theories dealingwith the relationship between International Relations and International Law, whichhave an impact on the understanding of treaty interpretation.With these questions flowing from this focus on the hermeneutics of treaty interpretation,EJIL invited a group of young scholars to both track and examine contemporarytreaty interpretation in the light of these and other problems. As you will see, a numberof our papers, like the one by George Letsas on the European Court of Human Rights,trace the developments of a treaty-specific hermeneutic. Others, like Luigi Crema’spaper proffer a more generalized framework. It is our hope that this symposium willinspire wider discussions on this phenomenon.