In/excluding pragmatics : interpretative formalism and its discontents

Abstract

The Vienna Convention on the Law of Treaties' articles on interpretation while practical, are built on an exclusive approach. They ignore the fact that normativity is expressed through the means of the messy, clumsy, and incomplete natural language we use in our everyday lives. International lawyers overlook some of these traits when they consider legal language to be formal and perfect. This oversight leads to an incomprehension of the interpretative process and of its results. States react negatively when obligations unfold in an unexpected direction, breaching obligations or withdrawing from treaties. This paper focuses on how the inclusion of pragmatics can contribute to legal interpretation in international law. How does it harm the interpretative process to exclude a pragmatic understanding of natural language from legal interpretation? How can we, through the insight brought by philosophy of language, draft better treaties and interpret them in a more rationalised way to prevent states from contesting the sometimes unpredictable results of treaty interpretation? I argue that a more inclusive approach to interpretation, taking into account language's natural ambiguity through philosophy of language and pragmatics, would lead to a better understanding of the interpretative process and contribute to making its outcome more predictable. Inspired by the works of the philosopher of language Paul Grice, I first demonstrate the gap between natural and legal language and how a pragmatic awareness is excluded from the interpretative process in international law. Secondly, I show how including these teachings would benefit both interpreters who would have a better grasp of the intricacies of natural language, and states who would better understand the interpretative process.