International law is usually communicated in more than one language and reflects common norms that lawyers and adjudicators across national legal cultures agree on and develop together. As a result, the negotiation of the wording and meaning of international legislative texts is an integral
part of legal interpretation in international law. This book sheds light on that essential interpretation process.
Language and Legal Interpretation in International Law treats the subject from the perspective of recent legal and linguistic theories of meaning. Anne Lise Kjær and Joanna Lam bring together internationally renowned experts to provide strong theoretical and practical foundations for the study of
legal interpretation in such fields as human rights law, international trade, investment and commercial law, EU law, and international criminal law. The volume explains how the positivist tradition--in which interpretation is understood as an automatic process by which judges simply apply the text
of legislative instruments to specific fact situations--cannot be upheld in an era of pragmatic and cognitive meaning theories. Those theories instead focus on the context of interpretation and on the interpreter as a co-producer of meaning. Through a collection of thoroughly researched and timely
essays, this book explores the linguistically and culturally diversified world of meaning-making in international law.
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ix | |
| Introduction: The dynamics of law and language in the interpretation of international legal sources |
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1 | (24) |
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PART I THEORETICAL PERSPECTIVES |
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1 WHAT IS LEGAL INTERPRETATION? INTERNATIONAL LEGAL INTERPRETATION BETWEEN LAW AND LEGAL DISCOURSE |
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1 Legal interpretation as a solution to disputes over the validity of laws |
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25 | (25) |
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2 Do legal concepts travel? |
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50 | (14) |
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3 The semantics of openness: Why references to foreign judicial decisions do not infringe the sovereignty of national legal systems |
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64 | (12) |
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4 Who forges the tools? The methods of interpretation between interpretive discourse and positive norms of law |
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76 | (21) |
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2 WHO DOES LEGAL INTERPRETATION? LEGAL INTERPRETATION AS JUDICIAL ACTIVITY |
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5 Balancing interpretation rules as the element of judicial discretion |
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97 | (14) |
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6 Interpretation of international treaties and the role of Articles 31 and 32 of the Vienna Convention on the Law of Treaties: A Wittgensteinian perspective |
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111 | (20) |
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PART II LANGUAGE AND TRANSLATION IN THE INTERPRETATION OF INTERNATIONAL LAW |
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7 Interpreting multilingual laws: Some costs and benefits |
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131 | (21) |
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8 On the conceptualization of meaning in legal interpretation |
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152 | (14) |
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9 Multilingual interpretation by the CJEU in the Area of Freedom, Security, and Justice |
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166 | (23) |
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10 Translation of judgments of the European Court of Human Rights into non-official languages: The politics and practice of European multilingualism |
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189 | (34) |
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PART III INTERPRETATION IN SPECIAL AREAS OF INTERNATIONAL LAW |
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1 TRADE, INVESTMENT AND COMMERCIAL LAW |
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11 Fundamental values being introduced into the treaty interpretation process under the WTO beyond semantic finding of conveyed meaning |
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223 | (13) |
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12 Legal interpretation and adjudicatory activism in international commercial arbitration |
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236 | (20) |
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13 Is a legal implicature only in the eye of the beholder? On the interpretation of the CISG convention |
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256 | (15) |
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14 The vague meaning of the Fair and Equitable Treatment principle in investment arbitration and new generation clarifications |
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271 | (24) |
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2 HUMAN RIGHTS LAW AND INTERNATIONAL CRIMINAL LAW |
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15 Interpretative evolution of the norm prohibiting torture and inhuman or degrading treatment under the European Convention |
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295 | (20) |
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16 Crimes against women in armed conflicts: Judicial activism and feminist legal interpretation as key factors in the reconstruction of concepts of international humanitarian law |
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315 | (20) |
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Karolina Ristova-Aasterud |
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| Index |
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335 | |
Anne Lise KjƦr is an Associate Professor of Legal Linguistics (tenured) at the Centre of Excellence for International Courts (iCourts) at the Faculty of Law, University of Copenhagen. Her present research focuses on the role that language plays in the development and interpretation of international law. She has investigated the European Court of Human Rights, the Court of Justice of the European Union, and the International Criminal Tribunal for the former Yugoslavia. She has also analyzed Scandinavian Supreme Courts with a view to identifying how they translate and transplant European Human Rights concepts into the languages and reasoning of their case law. She applies a combination of research methods, including, but not limited to, discourse analysis, translation studies, and corpus linguistics. She is on the steering committee of the International Language and Law Association (ILLA) and Director of the Scandinavian based international research network of Legal Linguistics,
RELINE.
Joanna Lam is Professor of International Economic Law and Director of Study Hub for International Economic Law and Development (SHIELD) at the Faculty of Law, University of Copenhagen. She is also affiliated with the Centre of Excellence for International Courts (iCourts) and with Kozminski University, and serves as the Chair of the Nordic-Asian Forum for International Economic Law. Lam graduated from Harvard Law School and University of Warsaw (summa cum laude) and holds doctoral and habilitation degrees in legal studies. A former Fulbright Fellow, she completed visiting appointments at, inter alia, Harvard Law School; University of California, Berkeley; Renmin University; and UNIDROIT. Her recent research focuses on legal interpretation in international arbitration; on transformations of investor-state dispute resolution; and on the role of international economic law in the green transition.
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