Edited by Christian J. Tams, Antonios Tzanakopoulos and Andreas Zimmermann
Chapter 13: Uniformity versus specialization (2): A uniform regime of treaty interpretation?
‘There is no part of the law of treaties which the text writer approaches with more trepidation than the question of interpretation.’ Fragmentation of international law can occur at two levels: at the level of substantive rules (applicable law) and at the level of interpretive method. Whereas the substantive aspect of fragmentation has spawned an enormous literature over the last decade, interpretive fragmentation has received less attention. The focus of this chapter is on this second dimension: does international law know a single, unified method, or equivalently, regime or approach to treaty interpretation? The emphasis in this chapter is on what treaty arbitrators in fact do, rather than on what they say they do in interpreting treaties. The chapter shows that, at times, treaty interpreters pay mere lip service to the 1969 Vienna Convention on the Law of Treaties’ (VCLT) principles on interpretation. They give preference to one element of the International Law Commission’s (ILC) ‘crucible’ over another, rather than bringing all the elements to bear on treaty interpretation in a single combined operation. Whether one sees interpretive uniformity, or interpretive divergence, depends on the position of the zoom of the lens. When zoomed out, the picture is one of interpretive uniformity. When zoomed in, one discovers a much greater degree of interpretive divergence in international law. There are at least three types of interpretive fragmentation.
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