Jain: Interpretive Divergence

Neha Jain (Univ. of Minnesota - Law) has posted Interpretive Divergence (Virginia Journal of International Law, forthcoming). Here's the abstract:

Should principles of legal interpretation differ according to the nature or purpose of a legal instrument? In the domestic context, most discussions of interpretation proceed on the assumption that for each type of legal instrument – such as constitutions, statutes, contracts, and wills – there is a different set of interpretive rules, standards, and canons. In international law, interpretive principles for its most high-profile legal instrument, the international treaty, conventionally advocate a uniform approach to construction: regardless of the form, character, and subject matter of the treaty, interpretation should be treaty-blind. This Article challenges this long-standing view and argues that in light of the complex and multi-faceted character of the modern treaty, international courts and scholars should embrace a divergent approach to treaty interpretation. The Article illustrates the pitfalls of the stubborn adherence to and invocation of the uniform approach through an analysis of its application by international criminal courts. International criminal law treaties such as the Rome Statute of the International Criminal Court are hybrid entities that are simultaneously a criminal code, a compact between states committed to anti-impunity, and a human rights instrument. Drawing on the domestic analogy, the Article posits that with the fragmentation of international law and the proliferation in specialized treaty regimes, each with their own adjudicative institutions, the treaty is best conceived as a short-hand legal device for instruments that can be as varied as contracts, constitutions, and statutes. Going even further, the constituent parts of a single treaty may perform vastly different functions and cement different kinds of legal relationships between multiple entities. The uniform approach to interpretation fails to do justice to this varied character of treaty devices. The Article highlights the promise of a divergent approach to treaty interpretation by exposing the real world consequences of adopting different interpretive methodologies for the constituent parts of modern treaties such as the Rome Statute. It distinguishes between the statutory, contractual, human rights oriented, and institutional provisions of the Rome Statute and demonstrates the results that follow from the application of a richer interpretive framework to the construction of the modern international treaty.