1 Abdelal, R. and Blyth, M., ‘Just Who Put You in Charge? We Did: Credit Rating Agencies and the Politics of Ratings’, in Cooley, A. and Snyder, J. (eds), Ranking the World: Grading States as a Tool of Global Governance (2015), 56Google Scholar.

2 Klabbers, J., ‘Virtuous Interpretation’, in Fitzmaurice, M., Elias, O. and Merkouris, P. (eds.), Treaty Interpretation and the Vienna Convention on the Law of Treaties: 30 Years on (2010), 17Google Scholar.

3 Report of the International Law Commission on the work of its eighteenth session, Geneva, 4 May – 19 July 1966, Draft Articles on the Law of Treaties with Commentaries, 1966 YILC, Vol. II, at 218 (emphasis added).

4 Dailler, P., Forteau, M., Nguyen, Q.D. and Pellet, A., Droit International Public (2009) 289Google Scholar.

5 B. Pascal, Pensées and Other Writings (1995) 150.

6 Ibid.

7 L. Wittgenstein, Philosophical Investigations (1953), para. 99. This paradox was aptly summarized by Julius Stone, see Stone, J., ‘Fictional Elements in Treaty Interpretation-A Study in the International Judicial Process’, 1954 Sidney Law Review 345Google Scholar (‘The canons of interpretation impugned by such skepticism as anything but the most rebuttable of presumptions in particular context, remain sanctified nevertheless by a vast body of doctrine, and by innumerable apparent applications by tribunals. They maintain their hold even in the modern literature, expressions of doubt being usually followed by an account of the canons as if the doubts scarcely existed.’). See also Sur, S., L’interprétation en droit international public (1974), 254Google Scholar.

8 Ibid., para. 99.

9 James, W., Pragmatism (1975), 41, 47Google Scholar.

10 Cotkin, G., ‘William James and the Cash-Value Metaphor’ (1985) 42 Etc: A Review of General Semantics 38Google Scholar.

11 For a pre-Vienna Convention discussion of similar scholarly positions see ‘De l’interprétation des traités’, Rapport et projets de Résolutions présentés par M. H. Lauterpacht, Annuaire de l’Institut du droit international (1950) t. 43-I, Session de Bath, 372 (referring to the general tendency to consider the rules of treaty interpretation as fundamentally lacking in utility).

12 Golder v. United Kingdom, Report of the Commission, 1 June 1973, 16 Publications of the European Court of Human Rights (Series B) 9, at para. 44.

13 Verhoeven, J., ‘Le Point de Vue des Praticiens’, (2006) 2 Revue Belge de Droit International 451Google Scholar.

14 1994 Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, Art. 17.6(ii) (‘Where the panel finds that a relevant provision of the Agreement admits of more than one permissible interpretation, the panel shall find the authorities’ measure to be in conformity with the Agreement if it rests upon one of those permissible interpretations.’). See also Empresas Lucchetti, S.A. and Lucchetti Peru v. The Republic of Peru, Decision on Annulment, 5 September 2007, para. 112 (‘it is frequently the case that there is more than one possible interpretation of a disputed provision, sometimes even several’).

15 Señor Tza Yap Shum v. The Republic of Peru, ICSID Case No. ARB/07/6, Decision on Annulment, 12 February 2015, para. 80.

16 Official Records of the United Nations Conference on the Law of Treaties, Vienna, Austria, First session, 26 March–24 May 1968, UN Doc. A/CONF.39/C.1/SR.32, 32^nd meeting of the Committee of the Whole, 172. This point was already made by Hart, H.L.A.. Hart, H.L.A., The Concept of Law (1994), 126Google Scholar (‘the canons of interpretation … are themselves general rules for the use of language, and make use of general terms which themselves require interpretation.’). See also D’Amato, A., ‘Can Legislatures Constrain Judicial Interpretation of Statutes’, 1989 Virginia Law Review 562–3Google Scholar (stating that rules of interpretation call for a ‘meta-theory of interpretation’, but ‘such a meta-theory would constitute a text, and thus itself be in need of interpretation’).

17 Panel Report, European Communities – Measures Affecting the Approval and Marketing of Biotech Products, circulated 29 September 2006, WT/DS291/R, WT/DS292/R, WT/DS293/R, paras. 7.67–7.75; Appellate Report, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, circulated 18 May 2011, WT/DS316/AB/R, paras. 841–855; ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law. Report of the Study Group of the International Law Commission’, UN Doc. A/CN.4/L.682, 13 April 2006, paras. 424–426, 462–472.

18 G. Nolte, First Report on Subsequent Agreements and Subsequent Practice in Relation to Treaty Interpretation, UN Doc. A/CN.4/660 (2013), paras. 65–118.

19 On the practical undesirability of this situation see Lauterpacht, supra note 11, 376. Official Records of the United Nations Conference on the Law of Treaties, Vienna, Austria, First session, supra note 16, 181. See also J.H.W. Verzijl, quoted in Fockema Andreae, J.P., An Important Chapter from the History of Legal Interpretation: The Jurisdiction of the First Permanent Court of International Justice, 1922-1940 (1948), 75Google Scholar (‘In principle they are all correct, but on concrete application they often abrogate each other and frequently appear worthless.’).

20 Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, supra note 18, para. 427 (‘it is in fact hard to think of any approach to interpretation that would be excluded from articles 31-32’).

21 Allott, P., ‘Interpretation – an Exact Art’, in Bianchi, A., Peat, D. and Windsor, M. (eds.), Interpretation in International Law (2015), 377Google Scholar (emphasis in original).

22 A good example is the ‘fair and equitable treatment’ standard that appears in virtually every investment promotion and protection treaty. It has become common in investment arbitration to point out that finding out the ‘ordinary meaning’ of the terms ‘fair’ and ‘equitable’ would not take the interpretive inquiry very far, since ‘[they] can only be defined by terms of almost equal vagueness’ such as ‘just’, ‘even-handed’, ‘unbiased’, ‘legitimate’. See Saluka Investments B.V. v. The Czech Republic, UNCITRAL, Partial Award, 17 March 2006, para. 297.

23 Schabas, W.A., ‘Reservations to Human Rights Treaties: Time for Innovation and Reform’, (1995) 32 Canadian Yearbook of International Law 47Google Scholar.

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25 Derrida, J., Limited Inc (1988), 148Google Scholar.

26 That is the lesson of Kelsen’s theory of interpretation according to which each norm is characterized by a frame of interpretive possibilities, but ‘there is no criterion on the basis of which one of the possibilities given within the frame of the norm to be applied could be favored over the other possibilities’. See Kelsen, H., Introduction to Problems of Legal Theory (1992), 81Google Scholar.

27 Hart, H., ‘Positivism and the Separation of Law and Morals’, (1958) 71 Harvard Law Review 614CrossRefGoogle Scholar.

28 Ibid.

29 Ibid., 615.

30 Application of the Convention of 1902 Governing the Guardianship of Infants (Netherlands v. Sweden), Judgment of 28 November 1958, [1958] ICJ Rep. 55, at 129–39 (Separate Opinion of Judge Sir Percy Spender).

31 HICEE B.V. v. Slovak Republic, UNCITRAL, Case No. 2009-11, Partial Award, 23 May 2011, para. 128.

32 The reason why literary studies are relevant to legal interpretation is that despite obvious differences between the institutional settings surrounding them, there is no epistemological difference between interpretation in law and interpretation in literature: what both are looking for is the meaning of texts.

33 See Knapp, S. and Michaels, W.B., ‘Against Theory’ (1982) 8 Critical Inquiry 723–42CrossRefGoogle Scholar.

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36 Mailloux, S., Interpretive Conventions. The Reader in the Study of American Fiction (1984), 149Google Scholar.

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38 Scholes, R., Protocols of Reading (1989), 81Google Scholar.

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40 Culler, supra note 37, at 131–52.

41 For an analysis of ‘the language of international law’ in general and interpretation in particular in terms of competence see I. Venzke, ‘Is Interpretation in International Law a Game?’, in Bianchi, Peat and Windsor (eds.), supra note 21, at 356–9. See also Koskenniemi, M., From Apology to Utopia: The Structure of International Legal Argument (2005), 563–89Google Scholar.

42 Appellate Report, United States – Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan, adopted 24 July 2001, WT/DS184/AB, para. 60.

43 Bianchi, A., ‘The Game of Interpretation in International Law: The Players, The Cards, and why the Game is Worth the Candle’, in Peat, Bianchi and Windsor (eds.), supra note 21Google Scholar; Waibel, M., ‘Uniformity versus Specialization (2): A Uniform Regime of Treaty Interpretation?’, in Tams, C.J., Tzanakopoulos, A. and Zimmermann, A. (eds), Research Handbook on the Law of Treaties (2014), 381–2Google Scholar.

44 The International Law Commission’s reference to ‘the means of interpretation admissible for ascertaining the intention of the parties’ suggests that this is how the Commission itself conceived of the rules of treaty interpretation. See Report of the International Law Commission, supra note 3, 219 (emphasis added).

45 See Cioffi, F., ‘Intention and Interpretation in Criticism’ (1963-1964) 64 Proceedings of the Aristotelian Society 91Google Scholar.

46 Koskenniemi, supra note 41, 568. On the concept of ‘legal grammar’ see Bobbitt, P., Constitutional Fate: Theory of the Constitution (1984), 6Google Scholar.

47 Miller, J.E. Jr., T. S. Eliot’s Personal Waste Land: Exorcism of the Demons (1977), 17–32Google Scholar, 59–77.

48 I. Ehrenpreis, ‘Mr. Eliot’s Martyrdom’, The New York Review of Books, 9 February 1978.

49 Ibid. For instance, according to Ehrenpreis, the fact that Eliot returned to Harvard in 1911, developed a relationship with Emily Hale and did not go back to Europe until 1914 makes it unlikely that Eliot was then in love with Verdenal.

50 Coetzee, J.M., Late Essays 2006-2017 (2017), 106Google Scholar.

51 Summary records of the sixteenth session of the ILC, 11 May–24 July 1964, 1964, YILC, Vol. I, 279, para. 61 (statement by A. Verdross: ‘States … would not be bound by the rules in question because they could agree to use other means of interpretation.’) and 280, para. 78 (statement by R. Ago: ‘[T]he Commission was not creating jus cogens. If the parties agreed to interpret the treaty in another way, there was nothing to prevent them from doing so.’); Appellate Report, United States – Anti-dumping Measures on Certain Hot-Rolled Steel Products from Japan, supra note 42, footnote 40 (‘It might be possible for the parties to a treaty expressly to agree that the rules of treaty interpretation in articles 31 and 32 of the Vienna Convention do not apply, either in whole or in part, to the interpretation of a particular treaty. Likewise, the parties to a particular treaty might agree upon rules of interpretation for that treaty which differ from the rules of interpretation in articles 31 and 32 of the Vienna Convention.’).

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54 Lauterpacht, supra note 11, 424.

55 See the statement by Mr. Tabibi, 1964, YILC, supra note 51, 276, para. 25 (qualifying ‘the intention of the parties’ as ‘the most important element of any general rule’) and the statement by Mr. Bartos, ibid., 279, para. 64 (pointing out that in treaty interpretation, ‘the autonomy of the will of the parties was paramount’ and that ‘[w]hat the parties had intended was more important than what they had actually said in the treaty’).

56 1966 YILC, supra note 3, 93.

57 Ibid., at 220. The question whether intention-free interpretation is possible is not taken up here. What matters for the purposes of this article is the officially consecrated mission statement for interpretation under the Vienna Convention.

58 Ibid.

59 Appellate Report, United States – Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan, supra note 42, para. 60.

60 Davidson, D., The Essential Davidson (2006), 260Google Scholar.

61 Ibid.

62 Ibid.

63 Ibid., at 261.

64 Ibid., at 260–1. For a recent application of the Davidsonian model to literary works see Farrell, J., The Varieties of Authorial Intention: Literary Theory Beyond the Intentional Fallacy (2017), 47–50CrossRefGoogle Scholar.

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66 Culler, supra note 37, at 34. See also Mailloux, supra note 36, 103 (‘[S]hared conventions of literary communication determine the range of intended reader response in that they enable the author to predict what his project reader will infer about his intentions.’).

67 1966 YILC, supra note 3, 219 (‘the establishment of some measure of agreement in regard to the basic rules of interpretation is important not only for the application but also for the drafting of treaties’).

68 Allott, supra note 21, 380–1.

69 For a discussion of this phenomenon in the context of investment treaties see Henckels, C., ‘Protecting Regulatory Autonomy through Greater Precision in Investment Treaties: The TPP, CETA, and TTIP’, 19 Journal of International Economic Law (2016) 27–50CrossRefGoogle Scholar.

70 Records of the United Nations Conference on the Law of Treaties, First session, 33^rd meeting, supra note 16, 179. John Westlake raised similar concerns with regard to textualism, in Westlake, supra note 52, 282–3 (‘A style of drafting accommodated to the expectation of a very literal interpretation would necessitate the suggestion and discussion of so many possible contingencies, as would be likely to cause needless friction between the representatives of countries not always very amicable.’)

71 Shereshevsky, Y. and Noah, T., ‘Does Exposure to Preparatory Work Affect Treaty Interpretation? An Experimental Study on International Law Students and Experts’, (2018) 28 European Journal of International Law 1287–1316CrossRefGoogle Scholar.

72 Panel Report, European Communities - Measures Affecting the Approval and Marketing of Biotech Products, supra note 17, para. 7.70 (stating that consideration of ‘other applicable rules of international law [mandated by article 31 (3)(c)] may prompt a treaty interpreter to adopt one interpretation rather than another’).

73 Stout, J., ‘What is the Meaning of a Text’, (1982) 14 New Literary History 7–8CrossRefGoogle Scholar (The term ‘they’ in Stout’s text refers to the interests and purposes of the reader).

74 Klabbers, J., ‘International Legal Histories: The Declining Importance of Travaux Préparatoires in Treaty Interpretation?’, (2003) 50 Netherlands International Law Review 271CrossRefGoogle Scholar.

75 Some rules, such as those set forth in Art. 32 of the VCLT, specify not only what means can be used, but also under what conditions they can be used. But the broader point that they do not, by themselves, determine the meaning of treaty provisions remains valid.

76 Wittgenstein, supra note 7, para. 84.

77 Ibid., para. 68.

78 Ibid., para. 85.

79 Schwyzer, H., ‘Rules and Practices’, (1969) 78 Philosophical Review 464CrossRefGoogle Scholar (emphasis in original).

80 Ibid., at 463.

81 The word ‘grammar’ here is used in the sense discussed by Wittgenstein, see Wittgenstein, supra note 7, para. 373 (‘Grammar tells what kind of object anything is.’).

82 Schwyzer, supra note 79, 455.

83 The International Law Commission made clear that what it attempted to codify was ‘general rules for the interpretation of treaties’, but not their conditions of application. Documents of the sixteenth session including the report of the Commission to the General Assembly, 1964, YILC, Vol. II, 200. The Commission explained that ‘[a]ny attempt to codify the conditions of the application of those principles of interpretation whose appropriateness in any given case depends on the particular context and on a subjective appreciation of varying circumstances would clearly be inadvisable’.

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85 As Derrida famously pointed out, the functioning of a sign always implies a deferral of meaning. Because a sign can only be what it is due to its differences from other signs, ‘the signified concept is never present in and of itself, in a sufficient presence that would refer only to itself’. But if ‘each element appearing on the scene of presence is related to something other than itself’, no immediately and presently available meaning is possible, because each element ‘keep[s] within itself the mark of the past element, and already let[s] itself be vitiated by the mark of its relation to the future element’. See J. Derrida (translated by A. Bass), ‘Différance’, in Margins of Philosophy (1982), 11, 13.

86 Barthes, R., Une problématique du sens, Œuvres complètes (2002), vol. 3, at 518Google Scholar.

87 Wittgenstein, supra note 7, para. 84.

88 Ibid.

89 Bourdieu, P., The Rules of Art: Genesis and Structure of the Literary Field (1995), 236Google Scholar. See also Peirce, C.S., Collected Papers of Charles Sanders Peirce (1960), 5375Google Scholar (‘The mere putting of a proposition into the interrogative form does not stimulate the mind to any struggle after belief. There must be a real and living doubt.’).

90 Schachter, O., ‘Metaphor and Realism in International Law’, in >Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz (2004), 213Google Scholar.

91 Official Records of the United Nations Conference on the Law of Treaties, First Session, supra note 16, 177. See also Giovanni Alemanni and Others v. The Argentine Republic, ICSID Case No. ARB/07/8, Decision on Jurisdiction and Admissibility, 17 November 2014, para. 270 (‘The standard set out in article 31(1) of the Vienna Convention, that a treaty is to be interpreted in good faith “in accordance with the ordinary meaning to be given to the terms of the treaty”, can by no stretch of the imagination be read as imposing a sort of lexicographical literalism.’).

92 Koskenniemi, supra note 41, 585.

93 Rasulov, A., ‘Book Review of “From Apology to Utopia: the Structure of the International Legal Argument” by Martti Koskenniemi’, (2006) 16 Law & Politics Book Review 590Google Scholar.

94 Appellate Report, United States – Anti-dumping Measures on Certain Hot-Rolled Steel Products from Japan, supra note 42, para. 60. The traditional explanation for the widespread use of the Vienna Convention’s rules of treaty interpretation is their ‘generality’ and ‘flexibility’. See, e.g., C. McLachlan, ‘The principle of systemic integration and Article 31 (3)(c) of the Vienna Convention’, (2005) 54 ICLQ 293; Waibel, supra note 43, 380.

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