Kulick: Interpreting the Customary Rules on State Responsibility – Text, No Text, Hypertext

Andreas Kulick (Eberhard Karls Universität Tübingen) has posted Interpreting the Customary Rules on State Responsibility – Text, No Text, Hypertext (in The Rules of Interpretation of Customary International Law, P Merkouris, P Pazartzis & LA Sicilianos eds., forthcoming). Here's the abstract:

Interpreting customary international law poses various challenges. First and foremost, custom itself is an unwritten source of international law, which, however, may find expression in various written texts that may serve as the interpretive material from which to glean content and meaning of an individual customary rule. The law of state responsibility is a prime example, begging the question how to deal with several interconnected ‘texts’ – the ARSIWA, the Commentary, other ILC work, individual expressions of state practice and opinio juris and the actual unwritten customary norm hovering over all of them – and what rules should guide their interpretation. In this chapter, I draw on insights from linguistic and literary studies as well as media theory to tackle custom’s complex textuality. Its lack of a fixed textual centre, the plurality of numbers and forms of relevant expressions of culture, its openness to change, etc., so I argue, very much resembles a hypertextual structure – a specific form of intertextuality, of interconnections of semiotic signs. Hypertext is the ‘text’ displayed on an electronic digital device that references it with other texts via so-called hyperlinks. Hypertext consists of various blocks of ‘texts’, i.e. signs (written text, pictures, music, tables, diagrams, animations, videos, etc.), that are linked to each other. Hypertext is variable, it is ‘de-centered’ and it is interactive, among others: all attributes that custom shares.

Viewing custom as hypertext offers several insights. Most importantly, as its textuality differs considerably from that of a treaty, this casts doubts on whether interpreting a customary norm’s text, as a rule, should follow the methodology of treaty interpretation. The latter is based on a clear-cut voluntaristic premise that is reflected in the textual structure of the interpretive materials: the treaty text is at the centre, the other relevant ‘texts’ form different layers of the periphery. A customary norm lacks such a fixed centre and hence a hierarchical structuring of its ‘texts’. Yet, custom’s variable structure also allows for the addition of focal points: texts that, although not fixed textual centres, assume heightened interpretive authority. Such special authority derives from thorough vetting processes that the genesis of these texts underwent: either by states themselves or, additionally, by expert bodies that states accept as bestowed with particular expertise and representativeness. The ILC’s work on state responsibility is a case in point.

The variety of texts that custom provides as interpretive material requires setting micro and meta rules of interpretation. Micro rules pertain to the interpretive methodology of each specific text or set of texts: Treaty texts follow the methodology set out in Art. 31-33 VCLT, domestic legislation is to be interpreted according to the domestic rules of statutory interpretation, unilateral acts follow their own methodology, etc. I develop certain guideposts for an interpretive methodology of the ILC work on state responsibility, taking into account the specific nature and interconnectedness of its various texts. Meta rules of custom interpretation consist of the factors determining focal points and the tools to weigh potentially differing interpretive outcomes of micro rule interpretation.