Peter Tzeng on Treaty Interpretation
Michael Ramsey
Peter Tzeng (Foley Hoag LLP) has posted The Principles of Contemporaneous and Evolutionary Interpretation (Book Chapter, in Joseph Klingler, Yuri Parkhomenko & Constantinos Salonidis (eds.), Between the Lines of the Vienna Convention?: Canons of Construction and Other Principles of Interpretation in Public International Law, pp. 387-422 (2019)) on SSRN. Here is the abstract:
The principle of contemporaneous interpretation provides that the terms of a treaty shall be interpreted as they were understood at the time of the conclusion of the treaty. The principle of evolutionary interpretation, on the other hand, provides that the terms of a treaty shall be interpreted as they are understood at the time of the interpretation of the treaty. In certain circumstances, the application of these two principles can lead to very different interpretations of the same term in a treaty. The primary question of this chapter is thus as follows: when should one apply the principle of contemporaneous interpretation, and when should one apply the principle of evolutionary interpretation?
From an originalist perspective, one conclusion is that originalism is a conventional method of treaty interpretation, although it is not called originalism.
Via Larry Solum at Legal Theory Blog, who comments:
Fascinating paper. This is another issue where the failure to distinguish interpretation (meaning) from construction (legal effect) makes it difficult to sort out the issues. The actual communicative content (conveyed by linguistic meaning in context) of a treaty fixed at the time of drafting--this is simply a fact about the way linguistic communication works. But a treaty term can refer to something that changes over time, and hence, the legal effect of the term may evolve. But "evolutionary interpretation" could also refer to a quite different phenomenon, the use of "amending constructions" by tribunals that are, in effect, changing the terms of a treaty in the guise of interpretation.
Recommended.