3 - Interpretative Methodology

Summary

Chapter 3 explains the interpretative methodology adopted in this book. It shows that the process of interpreting the law of armed conflict, including Article 36, has so far been lacking transparency both in practice and scholarship. It has been largely marked by presenting the outcomes of interpretation rather than explaining how these outcomes were achieved. To ensure that giving meaning to the terms of Article 36 will proceed in a transparent and principled manner, this chapter addresses the shortcomings of Articles 31 and 32 of the Vienna Convention on the Law of Treaties and suggests an interpretative methodology that helps overcome its limitations. The chapter also draws on the ideas of Stanley Fish and his work on interpretative communities. Thus, interpretation is here understood as a process of ascribing a meaning from a suite of possible meanings to convince the relevant interpretative community that a certain interpretation is the most persuasive interpretation to adopt. The interpretative community includes States, courts and tribunals, the International Committee of the Red Cross, non-governmental organisations and legal, military and academic experts. [177 words]