The relevance and importance of interpretation has been long recognised by international lawyers in their academic study and professional practice.
A new book, “Interpretation in International Law”, edited by Andrea Bianchi, Professor and Head of the Department of International Law at the Graduate Institute, Geneva, brings together established and emerging legal scholars to evaluate interpretation as a central concept of international law.
We spoke with Professor Bianchi about his new book
How and why has interpretation become so important in international law?
Interpretation has always been important. Admittedly, there is a difference of views about what interpretation is about. Some believe that to interpret the law means finding the right or correct legal view applicable to a given set of facts. Others maintain that interpretation is about making choices in relation to a desired outcome.
Finally, a more radical view is to hold that law is interpretation and has no separate existence. Be that as it may, it is difficult to disagree with Stanley Fish when he says that ‘interpretation is the only game in town’.
What’s new about this book? Are there any creative or innovative approaches that have not been used before?
The book is structured around the metaphor of the game, which captures the constituent elements of an act of interpretation. The object of the game of interpretation is to persuade the audience that one’s interpretation of the law is correct. The rules of play are known and complied with by the players, even though much is left to their skills and strategies.
There is also a more theoretical inquiry about the game of interpretation – ‘playing the game of game-playing’ – which involves consideration of the nature of the game, its underlying stakes, and who gets to decide by what rules one should play.
Against this background, the book accommodates different perspectives ranging from the politics of hermeneutics and the importance of cognitive frames to interpretation as an ‘exact art’, relying on external references and associations.
Can you give us an example of an issue of interpretation that relates to a current situation?
One of the most controversial issues in contemporary international law is the interpretation of Article 51 of the United Nations Charter, which virtually everyone considers as the sole exception to the prohibition of the unilateral use of force by States.
Article 51 reads: ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations.’
What an armed attack is; who can carry it out, whether only States or also non-State entities; what is the room for anticipatory self-defence in case of an imminent attack; what are the conditions for the exercise of collective self-defence: these are all questions that need an act of interpretation.
And yet would you admit that in certain cases the meaning of a text is plainly evident and requires no interpretation?
It’s always the broadly understood context and not the text itself that makes the meaning self-evident. Let me just resort to a well-known illustration of the importance of context.
Let’s consider the statement: ‘The boy chased a dog with a car’. In interpreting this statement, we presuppose that the boy makes use of the car to chase the dog. It is highly unlikely for anyone of us to think that the dog, which the boy is chasing, has a car. And yet nothing in the grammatical structure of the phrase compels this conclusion. We think that the boy rather than the dog has a car because of our experience and knowledge of the empirical world.
By the same token, if the statement to be interpreted were: ‘The boy chased the dog with a bone’, we would presuppose that the dog rather than the boy has the bone. Our conclusion is mandated not so much by the plain meaning of words but by what we know about dogs (…and boys).
What would your advice be to young practitioners facing problems of interpretation in international law?
To take the metaphor of the game seriously and to learn how to play and how to counter other players’ strategies, keeping in mind that the ultimate goal of the exercise is not to find an ultimate truth about the meaning of something, but rather to persuade an audience that one’s interpretation of the law is preferable to the others’.
This requires considerable skills but also a feel for the game which can only be acquired by looking at the process of interpretation in broad terms and not as the mechanical application of rules.