At Opinio Juris, Fuad Zarbiyev (Curtis, Mallet-Prevost, Colt & Mosle LLP): Textualism in Treaty Interpretation–A Genealogy. It begins:
The interpretation discourse in modern international law is dominated by a textualist paradigm. This claim may seem empirically wrong if it is taken to mean that nothing other than eo nomine textual arguments features in the international legal discourse. After all, the interpretive regime set forth in the Vienna Convention on the Law of Treaties seems to put the terms, the context, and the object and purpose of the treaty on an equal footing. But this does not disprove the dominant status of the textualist paradigm. As a matter of the Vienna Convention regime, context is for instance nothing other than a slightly enlarged text. Likewise, object and purpose is not something independent of the text, but a parameter that can hardly claim relevance in the interpretive discourse without a textual anchoring.
Why has textualism come to assume such prominence in a legal system in which consensualism has traditionally been and is still said to be at the heart of legal commitments? Is it not paradoxical that intentionalism, which seems more deferential to state consent, is systematically discredited as an interpretive philosophy in international law?
(This is part of a symposium on the book Interpretation in International Law (Andrea Bianchi, Daniel Peat & Matthew Windsor, eds.) (Oxford Univ. Press 2015).
For what it's worth, I have substantial doubt that international treaty interpretation is actually (as opposed to rhetorically) textualist. My suspicion is that the modern U.S. approach to treaty interpretation as pursued by the Supreme Court (which often diverges from non-U.S. approaches) is closer to what U.S. scholars would associate with textualism — that is, focus on the text as informed by its context.
Posted at 6:26 AM