Language and Legal Interpretation in International Law

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.

Anne Lise Kjær 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 at the Centre of Excellence for International Courts (iCourts), Faculty of Law, University of Copenhagen (FoL UoC), affiliated also with Kozminski University. She is Director of Study Hub for International Economic Law and Development (SHIELD) at
FoL UoC; as well as Chair of the Nordic-Chinese Forum for International Economic Law. A former Fulbright Fellow, she completed visiting appointments at, inter alia, Harvard Law School (twice); University of California, Berkeley; Renmin University, Beijing; 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 facilitating sustainable development.

INTRODUCTION

The Dynamics of Law and Language in the Interpretation of International Legal Sources
Anne Lise Kjær and Joanna Lam

PART I: THEORETICAL PERSPECTIVES

1. What is Legal interpretation: International Legal Interpretation between Law and Legal Discourse

Chapter 1: Legal interpretation as an Alternative to Disputes over Validity of Laws
Tomasz Stawecki

Chapter 2: Do Legal Concepts Travel?
Adam Dyrda and Tomasz Gizbert-Studnicki

Chapter 3: The Semantics of Openness: Why References to Foreign Judicial Decisions Do Not Infringe the Sovereignty of National Legal Systems
Marcin Matczak

Chapter 4: Who Forges the Tools?: The Methods of Interpretation Between Interpretive Discourse and Positive Norms of Law
Julian Udich

2. Who Does Legal Interpretation: Legal Interpretation as Judicial Activity

Chapter 5: Balancing Interpretation Rules as an Element of Judicial Discretion
Bartosz Wojciechowski

Chapter 6: Explaining the Interpretation of International Treaties and the Role of Articles 31 and 32 of the Vienna Convention on the Law of Treaties: a Wittgensteinian Perspective
Jaroslav Vetrovský

PART II: LANGUAGE AND TRANSLATION IN THE INTERPRETATION OF INTERNATIONAL LAW

Chapter 7: Interpreting Multilingual Laws: Some Costs and Benefits
Lawrence Solan

Chapter 8: Framing Legal Interpretation in Terminology Studies
Martina Bajcic

Chapter 9: Multilingual Interpretation by the CJEU in the Area of Freedom, Security and Justice
Lucie Pacho Aljanati

Chapter 10: Translation of Judgments of the European Court of Human Rights into Non-official Languages: The Politics and Practice of European Multilingualism
Anne Lise Kjær

PART III: INTERPRETATION IN SPECIAL AREAS OF INTERNATIONAL LAW

1. Trade Law and Commercial Law

Chapter 11: When and How can Certain Fundamental Values be Introduced into the Treaty Interpretation Process under the WTO?
Chang-fa Lo

Chapter 12: On Creative Aspects of Legal Interpretation in International Commercial Arbitration
Joanna Lam

Chapter 13: Is a Legal Implicature Only in the Eye of the Beholder? On the Interpretation of the CISG Convention
Izabela Skoczen

Chapter 14: A Concept in Transformation: Interpretation of "Fair and Equitable Treatment" in International Investment Law
Günes Ünüvar

2. Human Rights Law and International Criminal Law

Chapter 15: Understanding the Interpretative Evolution of the Norm Prohibiting Torture and Inhuman or Degrading Treatment under the European Convention
Ezgi Yildiz

Chapter 16: Crimes Against Women in the Statutes and the Judicial Interpretation of International Tribunals and Courts - How a Feminist Critical Standpoint has Reconstructed the Meaning of Certain International Humanitarian Law's Concepts
Karolina Ristova-Aasterud

Index