Thursday, April 9, 2020

Slocum & Wong: The Vienna Convention and the Ordinary Meaning of International Law

Brian G. Slocum (Univ. of the Pacific - McGeorge School of Law) & Jarrod Wong (Univ. of the Pacific - McGeorge School of Law) have posted The Vienna Convention and the Ordinary Meaning of International Law (Yale Journal of International Law, forthcoming). Here's the abstract:

This Article offers the first sustained interdisciplinary critique of international law’s ordinary meaning standard. The Vienna Convention of the Law of Treaties (VCLT) prominently mandates judicial interpretation of treaties “in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” While the conventional view is that the VCLT’s interpretive directive is “obvious” and largely unproblematic, it fails to adequately constrain judicial interpretive discretion. As well, the VCLT does not address fundamental interpretive issues such as indeterminate ordinary meaning and multiple language communities.

We argue that while the VCLT purports to mandate “ordinary meaning,” it in fact allows a different objective of interpretation known as “communicative meaning,” which we define as the meaning an appropriate hearer would most reasonably take a speaker to be trying to convey in employing a given verbal vehicle in the given communicative-context. Even with this understanding, though, the VCLT leaves judicial interpretive discretion unconstrained because it does not meaningfully restrict the allowable sources of meaning or how those sources can be used. Rather, the VCLT’s references to “context” and “purpose” lack sufficient guidance and permit courts to engage in speculative, unregulated inferences about purpose. Furthermore, the VCLT does not constrain judicial discretion regarding important interpretive issues such as whether implied meanings that transcend explicit treaty language should be recognized, even when those subject to the treaty come from different cultures and may speak English as a second language. Thus, while the ordinary meaning standard in the VCLT is a fundamental principle of international law, it falls short in its mission to provide coherent guidance to courts and tribunals engaged in the interpretation of treaties.