Interpreting
Interpretation: Textual, Contextual, and Pragmatic Interpretative Methods of International
Trade Law
Connecticut Journal of
International Law, Vol. 35, No. 2, 2020
70
Pages Posted: 4 May 2020
University
of Kansas - School of Law; Dentons U.S. LLP; Bloomberg
Quint (India)
Kansas
Supreme Court
Date
Written: March 1, 2020
Abstract
The
conventional wisdom as to how the World Trade Organization (WTO) Appellate Body
must interpret disputed terms in a treaty is incomplete, and even potentially misleading.
The conventional wisdom says the Appellate Body is restricted to the tools provided
by Articles 31-32 of the 1969 Vienna Convention on the Law of Treaties. The key
tool is a mechanical, lexicographic hammer, namely, finding the plain meaning of
a word or phrase at issue in a case between two WTO Members, with occasional recourse
to surrounding passages, and if pressed, to the purpose of the treaty in which the
disputed term is located. But those Articles amount to a larger tool kit than the
conventional wisdom recognizes.
In
truth, those Articles allow for three wide categories of techniques, Textualist, Contextualist, and Pragmatic,
for interpretation. These techniques are rich, nuanced tools familiar in American
Jurisprudence and English Literary Theory. A complete and transparent account of
the tools the Appellate Body has at its disposal to make decisions should acknowledge
this tripartite taxonomy, and thereby appreciate the intra- and inter-disciplinary
nature of international trade treaty interpretation that, at least in theory, is
possible.
Keywords:
Word Trade Organization, WTO, international, appellate body, Vienna Convention,
Law of Treaties, Textualism, Contextualism,
Pragmatism, international trade, treaty, interpretation