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Costanza Margiotta
(Costanza.margiotta@unipd.it)
1. In his seminal work The Law of Treaties (1961), Arnold McNair observed that “[t]here is no part of the law of treaties which the text-writer approaches with more trepidation than the question of interpretation.” Prior to the finalization of this objective—namely, the drafting of Articles 31 to 33 of the Vienna Convention on the Law of Treaties—it was declared during the United Nations General Conference that the International Law Commission had achieved one of its most commendable results by resolving one of the most complex issues in the entire field of treaty law. This sentiment of accomplishment was echoed immediately after the Convention’s ratification by a significant portion of the international legal community and has since been corroborated by both state practice and the jurisprudence of international courts and tribunals. It is thus unsurprising that the issue of interpretation has garnered substantial scholarly attention. Nevertheless, the interpretation of international law has not attracted sustained theoretical engagement from legal philosophers. In a certain sense, while theories of interpretation are well developed in other domains, a coherent theory specific to the interpretation of international law remains underdeveloped. It is more common for international lawyers themselves to raise theoretical concerns pertaining to the general theory of international law than for philosophers of law to do so. This discrepancy is mirrored in interpretive theory more broadly. As noted by the renowned Italian legal philosopher Francesco Viola, “The interpretation of international law is a practice that struggles to become a theory, whereas that of national law is a theory that often masks quite different practices.” (F. Viola, Apporti della pratica interpretativa del diritto internazionale alla teoria generale dell’interpretazione giuridica, in “Ragion Pratica,” 17, 2001, pp. 53-71.) It is also important to emphasize that, although the literature addressing the interpretive criteria codified in the relevant provisions of the Vienna Convention on the Law of Treaties (VCLT) is extensive, a more critical approach to the often-unexamined acceptance of this codification appears to have been largely absent. Indeed, the majority of contributions by international legal scholars exhibit a rather uncritical stance. The socalled Vienna rules are frequently treated as a kind of mantra—recited by rote, without genuine critical engagement. In this context, the recent publication Demystifying Treaty Interpretation (Cambridge, 2024) by Andrea Bianchi and Fuad Zarbiyev constitutes a significant intervention. Its foremost merit within the existing literature lies in its distinctly critical approach to the subject. The authors encourage interpreters to scrutinize their own assumptions, biases, and professional positions. By making such factors explicit, interpreters are invited to approach their task with greater transparency and methodological awareness.
