How Post-Positivism Sheds Light on Treaty Interpretation: Celebrating the VCLT Rule of Interpretation

Abstract

What does post-positivism reveal about the Vienna Convention on the Law of Treaties (VCLT) rule of interpretation? This chapter argues that post-positivism can uncover the justificatory function of the VCLT rule of interpretation. Post-positivism delivers a hypothesis with explanatory value that is in line with international legal practice. It, therefore, provides further insights to the rule of interpretation. Post-positivism is characterised by a move away from the presumptions of positivism. Yet, it also remains in the tradition of positivism. This can be seen from reflection on the VCLT rule of interpretation. Post-positivism moves from ascertainment to argument. To structure communicative and argumentative processes becomes more important than hermeneutical guidance. Post-positivism leads to a potential pluralisation of actors. What is more, post-positivism is open for transdisciplinary insights. All these elements are visible in the reconstruction of the VCLT rule of interpretation.