Journal article

Inside the treaty interpreter’s mind: An experimental linguistic approach to international law

BFD

  • 24.04.2023
Published in:
  • Leiden Journal of International Law. - Cambridge University Press (CUP). - 2023, p. 1-30
English One particularly intense critical debate over interpretation in international law concerns the role of moral
factors – specifically, the degree to which such factors influence legal interpretation, and how the law
should deal with them. A formalist approach argues that moral considerations should be excluded as
non-legal; a critical legal studies approach suggests they are an inevitable part of the functioning of international law and must therefore be acknowledged; and an inclusivist approach would suggest their influence is permissible, albeit only under certain circumstances. In this article, we are concerned with the
question of whether moral factors influence interpretation at all, taking international treaties as the object
of study. To address this question, we take a novel approach, proposing an experimental linguistic framework to test whether linguistic categorizations (originally developed for the analysis of everyday language)
can be successfully applied to treaty interpretation, relying on both laypersons and experts as participants.
Although some caveats must be made, the experiments deliver clear results: both groups are influenced by
morals in their interpretation of international treaty norms. On this basis, we draw conclusions regarding
(i) how the process of interpretation of international law operates; and (ii) what the institutions managing
that process, such as courts, should factor-in when deliberating their decisions. By adopting this novel
perspective, we also contribute to linguistic and experimental approaches to international law at the methodological level.
Faculty
Faculté de droit
Department
Département de droit international et droit commercial
Language
  • English
Classification
Law, jurisprudence
License
CC BY
Open access status
hybrid
Identifiers
Persistent URL
https://folia.unifr.ch/unifr/documents/325043
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