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Intertemporal Linguistics in International Law: Beyond Contemporaneous and Evolutionary Treaty Interpretation

Intertemporal Linguistics in International Law: Beyond Contemporaneous and Evolutionary Treaty Interpretation

Author: Julian Wyatt
Publisher: Hart Publishing
ISBN: 9781509952281

Published In: July 2021
Format: Paperback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only
Hardback Edition ISBN: 9781509929498

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Intertemporal Linguistics in International Law examines and offers an overdue solution to a specific problem central to the resolution of an ever increasing number of international legal disputes: how to interpret a treaty with terms that change in meaning over time.

A wide-ranging review of the relevant international case law and scholarship reveals that no rule, principle or authority of international law – including even the oft-cited evolutionary interpretation doctrine – provides international adjudicators with the firm and practical guidance on this specific question that contemporary international litigants demand.

Using an analytical approach inspired by the comparative method and drawing on specific concepts from external fields including private law, legal theory and, principally, modern-day linguistics, Intertemporal Linguistics in International Law restructures the most relevant international case law around a new conceptual framework that offers fresh insight into the process of treaty interpretation. It demonstrates that by distinguishing between resolving ambiguity and resolving vagueness, and by identifying the temporal sense-intention with which a treaty term is used, international adjudicators can avail themselves of a more predictable and appropriate method for solving this complex and practically important problem of international law.

1. Introduction

I. The Problem of Intertemporal Linguistics

II. Scope

III. Methodological Features

IV. Structure

PART I: THE PROBLEM – DETACHING IT FROM THE DOCTRINES

2. The Rise and Fall of the Principle of Contemporaneity

I. Surfacing and Consecration of the Static Approach as the Principle of Contemporaneity

II. The Decline and Fall of the Principle of Contemporaneity

III. Time to Detach the Principle of Contemporaneity from the Problem

3. The Emergence and Splitting of the Evolutionary Treaty Interpretation Doctrine

I. Emergence as an Amalgam of Interpretative and Progressive Approaches

II. Splitting of the Doctrine into Distinct Interpretative and Progressive Forms

III. Jettisoning a Doctrine No Longer Sufficiently Linked to the Problem

4. Refocusing on and Defining the Static and Dynamic Approaches to the Problem of Intertemporal Linguistics

I. The Need for Analytical Definitions of the Problem and the Approaches to it

II. Preliminary Refinements of the Nature of the Problem

III. Using Linguistics to Refi ne the Key Notion of 'Different Meanings'

PART II: THE MISCONCEPTIONS – CASTING ASIDE THE CONVENTIONAL WISDOM

5. The VCLT's Interpretative Rules do not Solve the Problem

I. The VCLT's Interpretative Provisions are Temporally Neutral

II. By Authorising Progressive Adjudication, the VCLT does not Endorse a Dynamic Approach to the Problem

III. Only ex ante Guidance Can Solve the Problem, Mere ex post Justification Cannot

IV. Conclusions

6. The Post-Namibia International Case Law does not Provide a General Solution to the Problem

I. The Conception is Based on the Wrong Set of International Cases

II. Seen in their Decisional Contexts, the Authorities for the View do not Adequately Support it

III. Conclusions

PART III: THE SOLUTION – INNOVATING INSIDE INTERNATIONAL LAW

7. The Problem of Intertemporal Linguistics as an Issue of Ambiguity, Not Vagueness

I. Interpretation Resolves Either Vagueness or Ambiguity

II. The Choice Between an Original and Later-emerging Meaning Calls for the Resolution of Ambiguity, Not Vagueness

III. The VCLT Rules are Focused on Resolving Vagueness, but Implicitly Recognise the Ambiguity/Vagueness Distinction

IV. Interpreters Disambiguate before they 'De-vaguefy'

8. Disambiguating Original and Later-emerging Senses Using a Temporal Sense-Intention

I. Disambiguation is Achieved Through Identifying the Sense-Intention

II. The Sense-Intention is Very Different to Other Interpretative Intentions

III. The Relevant Sense-Intention in the Intertemporal Linguistics Context is a 'Temporal Sense-Intention'

IV. Notions Akin to the Temporal Sense-Intention Emerging from Case Law and Scholarship Relating to the Problem

9. Features of Interpretative Situations that Might Imply a Temporal Sense-Intention

I. Sense-Intentions are Usually Inferred from Context

II. 'By Definition Evolutionary' and 'Generic' Terms as Indicia of a Mobile Sense-Intention

III. Terms that Constitute Legal Concepts as Indicia of a Mobile Sense-Intention

IV. Terms in Human Rights Treaties as Inherently Possessing a Mobile Sense-Intention

V. Terms in Territorial Treaties as Inherently Possessing a Fixed Sense-Intention

VI. Terms in Treaties of Fixed and Continuing Durations as Implying Fixed and Mobile Sense-Intentions Respectively

VII. Terms in Constitutive Instruments as Implying a Mobile Sense-Intention

VIII. Terms in Clauses Establishing a Situation and Laying Down a Rule Respectively

IX. Implications of a Temporal Sense-Intention Arising from the Number of Parties to a Treaty

X. Concluding Observations on the Interpretative Features Cited by the Case Law and Scholarship

10. Organising the Features into a Workable Method for Inferring the Temporal Sense-Intention and Solving the Problem

I. Context Including Definitions – The Best Evidence of Sense-Intention

II. Where Context Runs Out – Using Other Indicia and Presumptions for Inferring the Temporal Sense-Intention

III. Presumptions – Strong and Independent Indicators of a Particular Temporal Sense-Intention

IV. Mere Indicia – Indicators that Taken Together May Clearly Imply a Fixed or Mobile Sense-Intention

V. Twin Presumptions of Last Resort – Using the Number of Treaty Parties

VI. Practical Benefits of the Proposed Method for Solving the Problem

11. Conclusion

I. Summary

II. A Plea for a Less Flexible and More Legally Certain System of Treaty Interpretation

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