ON THE NATURE OF INTERPRETATION IN INTERNATIONAL LAW

2013 Journal of Law and Jurisprudence  
This paper sets out a theoretical approach to the nature of interpretation that is intended to overcome some of the challenges of treaty interpretation in international law. By adhering to the approaches of Gadamer and Wittgenstein, it is argued that interpretation is a reciprocal dialogue between the reader and text with the mediation of the 'tradition' and 'language-games'. Although it seems there exists no agreement among legal theorists on the nature of interpretation, reviewing their
more » ... ches reveals that they have acknowledged the dependency of meaning upon the traditions and practices of communities. This finding paves the way for providing a new reading for the system of interpretation provided by articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT). It is argued that although the VCLT integrates some of the elements of current interpretive methods, ultimately the VCLT adopts its own unique approach. The nature of international law requires taking into account the 'conventionalist theory' to determine meaning based on the acts of the law's subjects. Nevertheless, the nature of interpretation requires that the terms be understood with the mediation of the 'language-games' which is realised by the inclusion of 'the relevant rules of international law'. A. INTRODUCTION The centrality of interpretation to the law in general lies in two of law's inherent features. On one hand, law, as 'the projection of an imagined future upon reality', 1 needs to predict the future. This legal prediction, however, suffers from two main human failings -in HLA Hart's words, these are human beings' relative ignorance of facts and their relative indeterminacy of aim. 2 On the other hand, in its search for justice, the law tries to balance the concepts of the 'self' and the 'other', and therefore, as Michel Rosenfeld describes, avoids speaking in the voice of either one of them; rather, the law embraces a universal language that transcends the individualities of all the selves that come within its sweep. 3 The gap between 'singular and universal' or 'abstract and concrete', however, cannot be surmounted without violence: every insistence on the self-claim is bound to do violence to the other, and every restraint in pursuing the self-claim does violence to itself. That is why legal interpretation, according to Robert Cover 'takes place in a field of pain and death'. 4  PhD Candidate in International Law, Graduate Institute of International and Development Studies. Email: katayoun.hossein@graduateinstitute.ch. 1 Robert Cover, 'Violence and the Word' (1986) 95
doi:10.14324/111.2052-1871.054 fatcat:ymbjng2iz5bifaqpyo5jbak4u4