Book Symposium: Comparative Reasoning in International Courts and Tribunals

Lawyers are obsessed with interpretation and international lawyers are no exception. Perhaps there is a good reason for that, but that is not the point of this post. There are different trends in scholarship that emerge at different times, and different sub-trends especially on interpretation, be that ‘systemic integration’ as per 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT) spurred on by the ILC’s work on fragmentation in the mid-00s, or the current turn to comparative law. Daniel Peat’s book engages with the question of comparative reasoning in international courts and tribunals, and, as he states in his introduction to this symposium, does so because of another recent trend in scholarship, also no doubt to some extent because of ILC work, namely the trend regarding general principles of law as per 38(1)(c) of the Statute of the International Court of Justice (ICJ), and the difficulty in figuring out what this source of law actually is. Daniel argues throughout the book, using examples from a broad range of international courts and tribunals, that comparative (or domestic) law is used by such courts more to interpret existing norms than to try and establish the existence of norms by reference to 38(1)(c) ICJ Statute (ie as general principles of law).

This in and of itself is a useful insight, and this is the insight that I want to discuss here. I have two points to make—the first being quite an unimportant one, more of a question really, and the second being the main one, using Daniel’s work and some of his conclusions as a springboard. The first point is that I am not sure that some of the book’s chapters deal with comparative reasoning at all. For example, the chapters on the ICJ and on the World Trade Organization Appellate Body actually discuss the use of domestic law to interpret unilateral or quasi-unilateral acts of states. Is that really comparative reasoning, or is it just recourse to domestic law (as an interpretative aid or otherwise)? Related to this point, and leading to the next point, is my understanding that whether international courts resort to domestic law or comparative assessment of domestic laws in order to determine the intention of the relevant states, or to interpret ‘standards’, or to support interpretations reached on other grounds or other reasoning, they are effectively resorting to domestic law(s) in the process of interpretation, ie when interpreting a norm. In that I agree with Daniel and his insight.

Where I think I part ways with him to some extent is when he puts some emphasis of how this is somehow beyond the VCLT rules on interpretation and how we need to be liberated from the VCLT framework to understand what is going on here. Notably he does this in his introduction to this symposium, but is much more nuanced in his chapter 2 in the actual book. In fact, I find myself in full agreement with Richard Gardiner’s approach in his post, which I had the benefit of reading beforehand. If the reader would pardon a relatively blunt approach, the VCLT rules on interpretation are broad enough to encompass such recourse to domestic law(s) whether it is in the determination of the ‘ordinary meaning’ of a term, or as part of the context, or as subsidiary means of interpretation as per 32 VCLT. Daniel himself on occasion admits to that, and Richard has done a fantastic job discussing this aspect in his post for this symposium.

What I really would focus on is whether it is actually worth thinking so much about interpretation (and the relevant Vienna rules), or whether this at some point starts yielding quickly diminishing results. Daniel himself notes that the Vienna rules do not really guide to a ‘correct’ interpretation, but rather merely set ‘outer limits’ of the interpretative exercise (p. 21). This has to be correct, unless one were to subscribe to the ‘archaeological’ approach to interpretation: as if it were some sort of digging to unearth and bring to light the one true meaning of a legal provision. But no legal provision has one true meaning—it has many plausible meanings, a ‘radius’ of plausible meanings. All that the rules of interpretation do is to help draw that radius, and to show where it ends. From within that radius of plausible meanings, the interpreter selects one that seems to her the more plausible, or the correct one. She will usually of course hail that meaning as the one true meaning of the provision being interpreted. But we all know that the selection is not the only selection possible, not the one true meaning. It is a selection that is inherently biased, political, call it what you will. There is no way that it can be any other way. And then that selection is up for questioning, adoption, discussion, etc, by other interpreters.

Of course in the final analysis, and biased as it may be, there is one selection only that counts: the selection by that interpreter that has been designated by the legal order as being entitled to make the political decision as to the meaning of the provision, the interpreter whose interpretation the legal order ascribes binding force to. In domestic law, and in the last instance, that is almost always a judge or a court, given the existence of compulsory jurisdiction. In international law it is much more complicated than that, as the organ that decides with binding force what is the authoritative interpretation of the law may be a court, in rare instances, but for the most part it is the peculiar organ made up by two or more states who have made the rule or are agreeing to apply it to a dispute or set of facts between them.

Be that as it may, and given that the book focuses on courts and tribunals, the real issue that arises is not, in my view, the lege artis application of the rules of interpretation, or trying to argue whether a particular approach fits within the VCLT rules—broad as they are. The real issue is rather whether we should all be frank and admit that we agree or disagree with interpretations precisely because of our political and ideological positions. This, I think, Daniel brings to the fore when at the end of his chapter on international investment law he notes that investment tribunals have referred to only a limited range of domestic laws in their comparative attempts, but then goes on to argue that that may be all right if they select domestic laws that reflect the same values as the international investment law regime (p. 137). He repeats a similar thought at the end of his introductory note to this symposium, when he wonders about how such choice of domestic law is made and calls on us to think harder about this matter. I think this makes sense—we do need to think harder about the criteria on which we choose such things. But I feel we will once again find that such choices reflect nothing but our very own political and ideological positions, and there is very little the law can say about this. As there is very little the law can say about interpretation altogether (apart from the broad church that are the VCLT rules, which, in the final analysis, are nothing but all the rules of interpretation in all legal systems—with different, and secondary, tweaks). So, perhaps, what we need to revisit, is not the rules of interpretation, but our obsession with them. It seems that such obsession is just a veneer for our subjective views and values providing different gloss on rules of law. It is perhaps this battle that we ought to fight openly, rather than try to camouflage it behind arguments on the proper application of the rules of interpretation.