February 26, 2017

Treaty Interpretation and the Vienna Convention on the Law by Edited by Malgosia FitzmauriceOlufemi Elias and Panos

By Edited by Malgosia FitzmauriceOlufemi Elias and Panos Merkouris

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Extra resources for Treaty Interpretation and the Vienna Convention on the Law of Treaties: 30 Years on

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3, para. 72. 37 See Jan Klabbers, ‘On Rationalism in Politics: Interpretation of Treaties and the World Trade Organization’, Nordic Journal of International Law 74 (2005): 405–28. 38 They are the result of compromise between actors with, often enough, widely diverging ideas, interests and desires. As a result, there is not a single author’s voice to be discerned: a treaty is by definition a compromise between the voices of a variety of authors – otherwise it would not exist. The same applies, mutatis mutandis, to decisions of international organizations and even judicial decisions: one of the reasons why judgments of the Court of Justice of the EU can be so dense is the same need for compromise between judges with widely varying ideas as to what the law says, what the relevant facts are, and how the two combine in the particular case.

My main proposition is a plea for virtuous interpretation, as opposed to the sort of virtuoso interpretation that could result from applying rules on interpretation. Section II discusses the difficulties of thinking in terms of rules on interpretation; section III analyzes the question of the ostensible customary nature of the Vienna Convention’s rules on interpretation; in section IV, I will sketch how these rules by their very nature are of little concrete help. Section V will sketch the contours of what I call a virtuous approach to interpretation, while section VI concludes.

51 See Alexander P. Fachiri, ‘Interpretation of Treaties’, AJIL 23 (1929): 745–52. 52 “The measure of correct interpretation is the inference of intent from the most probable indications. ” Grotius, supra note 42, at 409. virtuous interpretation 29 Yet, over time, this came to be accompanied by two competing conceptualizations. Or, perhaps it is more accurate to state that the old idea split up into three distinct branches, according to which interpretation of a treaty could come to stand for three different things.

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