This blog rarely goess of track. It sticks to international economic law and policy, trade law, investment law, WTO, trade agreements - you get the flow.
Going off track today - could not resist putting this book review up there for everyone. A brilliant book review of United States Justice Stephen Breyer's book "Reading the Constitution: Why I Chose Pragmatism, Not Textualism" by Kevin Newshom and Alana Frederik in Harvard Law Review post here.
The eternal question is about how judges should interpret the Constitution or statute. Should it be a more formal, textual approach that sticks to the letter or text of the law or should it be a more pragmatic, purpose oriented approach that looks, inter alia, on the purpose and outcome of the interpretation.
A fascinating conversation ensues in the review and the reviewers tend to disagree with the pragmatic approach put forth by Justice Breyer while prefering the formal, textual approach. The role of the Courts in a separation of powers context is to interpret the law as IT is and not as it SHOULD be. It leads to more certainty and respects the rule of law, avoids discretion and subjectivity and allows toe Courts to do what the judiciary are supposed to do rather than take on the role of the legislature or executive. If the law is leading to unintended consequences, amendment is the answer, not creative interpretations.
This principle is applicable as much to the Constitution of the United States as it is to India or any other written constitution. It also applies to domestic laws as well as international economic law.
Got me thinking on the Vienna Convention on the Law of Treaties (VCLT). How do we interpret international treaties. Article 31 and 32 provide some light:
Article 31
General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.
Article 32
Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.
What does this indicate - a formalist approach? A pragmatic approach? or a bit of both? When does one determine that the result is a manifestly absurd one?
A fascinating journey into interpretation of statutes - if I recall right, it was one of my favourite courses in Law School. Wonder why?
And, by the way, I got this blogpost back to international economic law and treaty interpretation! Some habits die hard.
My next post will be textualism and pragmatism in the Appellate Body, perhaps?
No comments:
Post a Comment