Five Shades of Grey – A Linguistic and Pragmatic Approach to Treaty Interpretation

Abstract

In the context of treaty interpretation, new insights from research on language meaning (semantics and pragmatics) offer possibilities for categorising meaning with increased precision. Based on a typology of pragmatic interpretations, the present paper develops a five-step system of categorisation for the grey area ranging from cases where a treaty seems to be silent to cases where the Vienna Convention’s general rule on interpretation can still be applied because there is treaty text to be interpreted. The paper explains the typology and uses examples from international law to demonstrate its usefulness in dealing with situations of varying degrees of explicitness of treaty texts. While pragmatics cannot offer a miracle solution, it provides tests that interpreting agents can apply to categorise interpretations on the continuum between clear ordinary meaning cases and cases of treaty silence. It thereby also becomes clearer what exact arguments an interpreting agent needs to provide to bolster a particular interpretation as sufficiently related to the common intentions of the treaty parties.