The pragmatics of interpretation in international law: Five lessons for international lawyers

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Benedikt Pirker
University of Fribourg, Switzerland

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Abstract

The present paper is an attempt at interdisciplinary cross-fertilization. In short, international lawyers lack knowledge of pragmatics. At the same time, they face certain problems in their own research on interpretation that they might arguably overcome with the help of such knowledge. In turn, researchers in pragmatics interested in (international) law and legal language processes can learn more about the operation of language in (international) law by examining the mentioned problems (international) lawyers face. We deliberately focus on one area of law and the topic of international treaties without prejudice to the generalizability of our findings to other areas of law. Similarly, while there is a range of approaches to pragmatics, for the purpose of this paper we focus on Relevance Theory.
In our paper, we argue that international lawyers can draw five lessons from pragmatics. 
First, their understanding of the so-called ordinary meaning of terms of international treaties does not take into account the actual operation of language as pragmatics would describe it. This understanding arguably needs to be refined.
Second, international lawyers fear the so-called “indeterminacy thesis”, i.e. the argument that language as international law’s central tool is fundamentally indeterminate. On this premise, international law operates only based on hidden power structures and authorities, and language – and the law itself – plays no real role in regulating international relations. An understanding of pragmatics can alleviate this fear, as the capacities of language – and the processes of decoding and inference as aimed at achieving relevance in communication – are better understood.
Third, international lawyers may benefit from accepting the relevance of the notion of “cognitive environment” for communication and interpretation and abandon “container” theories of meaning. If properly understood, pragmatics fills a void in current research on interpretation in international law: Such research simply assumes that language is indeterminate and turns to sociology to explain how meaning is established and/or changed in international law, without understanding the cognitive factors of “meaning making”.
Fourth, international lawyers are concerned with the principle of legality. The latter requires the law to be determinate, so that it can regulate e.g. what behavior is punishable in international criminal law or what competences an international organization possesses. An erroneous understanding of the operation of language may lead international lawyers to fear that international law may not be able to comply with the principle of legality. Pragmatics can help to better understand that language and thus international law can be determinate, and how this is the case. At the same time, we show that pragmatics applied to international law is not a normative theory that changes international law. Pragmatics is fundamentally descriptive and can thus merely help to better explain the processes of international law. For example, the use of pragmatic theory does not change the principles of interpretation applicable in international law. It is their operation which becomes easier to understand. 
The fifth lesson builds on the previous ones. If the previous four lessons are accepted, the fifth lesson for international lawyers is that pragmatics should form part of the standard tool kit and knowledge of the legal professional. Therefore, it should form part of the law school curriculum; legal arguments based on pragmatics should be expressed as such and be accepted and discussed in legal academia as well as the courtroom.
In essence, we suggest that (international) lawyers should understand that (international) law is determined by what the main instrument it uses – language – can do. Therefore, it is important that they fully grasp what language can and cannot do. Hence, they must learn more about the difference between semantics and pragmatics, a code and an inferential model of communication, decoding and inferencing, conceptual and procedural meaning and so forth. Ultimately, international lawyers should be able to better understand what they have been doing intuitively, but should do more consciously.