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Open Access Interpreting the Customary Rules on Interpretation

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Interpreting the Customary Rules on Interpretation

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International courts have at times interpreted the customary rules on interpretation. This is interesting because what is being interpreted is: i) rules of interpretation, which sounds dangerously tautological, and ii) customary law, the interpretation of which has not been the object of critical analysis. The present paper, aims to fill this lacuna and prove that not only interpretation of customary rules of interpretation is not problematic (it is neither tautological nor impossible), but also that it is a process completely distinguishable from that of formation/identification of customary international law. Whereas the latter determines the existence of a customary rule and has to grapple with ‘practice’ and ‘opinio juris’, interpretation of customary rules concerns itself with the rules after they have come into existence. I will then demonstrate that customary rules of interpretation have consistently been interpreted in international jurisprudence and that the interpretative process bears certain similarities to treaty interpretation.

Affiliations: 1: University of Groningen p.merkouris@rug.nl

10.1163/18719732-12341350
/content/journals/10.1163/18719732-12341350
dcterms_title,pub_keyword,dcterms_description,pub_author
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International courts have at times interpreted the customary rules on interpretation. This is interesting because what is being interpreted is: i) rules of interpretation, which sounds dangerously tautological, and ii) customary law, the interpretation of which has not been the object of critical analysis. The present paper, aims to fill this lacuna and prove that not only interpretation of customary rules of interpretation is not problematic (it is neither tautological nor impossible), but also that it is a process completely distinguishable from that of formation/identification of customary international law. Whereas the latter determines the existence of a customary rule and has to grapple with ‘practice’ and ‘opinio juris’, interpretation of customary rules concerns itself with the rules after they have come into existence. I will then demonstrate that customary rules of interpretation have consistently been interpreted in international jurisprudence and that the interpretative process bears certain similarities to treaty interpretation.

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/content/journals/10.1163/18719732-12341350
2017-03-01
2018-09-21

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