restricted access Chapter XVII - Of the Interpretation of Treaties
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chapter xvii 407 chapter xvii Of the Interpretation of Treaties. If the ideas of men were always distinct and perfectly determinate,—if, for the expression of those ideas, they had none but proper words, no terms but such as wereclear,precise,andsusceptibleonlyof onesense,— there would never be any difficulty in discovering their meaning in the words by which they intended to express it: nothing more would be necessary , than to understand the language. But, even on this supposition, the art of interpretation would still not be useless. In concessions, conventions , and treaties, in all contracts, as well as in the laws, it is impossible to foresee and point out all the particular cases that may arise: we decree, we ordain, we agree upon certain things, and express them in general terms; and though all the expressions of a treaty should be perfectly clear, plain, and determinate, the true interpretationwouldstill consist in making, in all the particular cases that present themselves, a just application of what has been decreed in a general manner. But this is not all:—conjunctures vary, and produce new kinds of cases, thatcannot be brought within the terms of the treaty or the law, except by inferences drawn from the general views of the contracting parties, or of the legislature. Between different clauses, there will be found contradictions and inconsistencies, real or apparent; and the question is, to reconcile such clauses, and point out the path to be pursued. But the case is much worse if we consider that fraud seeks to take advantage even of the imperfection of language, and that men designedly throw obscurity and ambiguity into their treaties, in order to be provided with a pretence for eluding them upon occasion. It is therefore necessary to establish rules founded on reason, and authorised by the law of nature, capable of diffusing light over what is obscure, of determiningwhatisuncertain, and of frustrating the views of him who acts with duplicity in forming the compact. Let us begin with those that tend particularly to this last end,—with those maxims of justice and equity which are calculated to repress fraud, and to prevent the effect of its artifices.§262. Necessity of establishing rules of interpretation. 408 book ii: nations in relation to other states The first general maxim of interpretation is, that It is not allowable to interpret what has no need of interpretation. When a deed is worded in clear and precise terms,—when its meaning is evident, and leads to no absurd conclusion,—there can be no reason for refusing to admit the meaning which such deed naturally presents. To go elsewhere in search of conjectures in order to restrict or extend it, is but an attempt to elude it. If this dangerous method be once admitted, there will be no deed which it will not render useless. However luminous each clause may be,—however clear and precise the terms in which the deed is couched,—all this will be of no avail, if it be allowed to go in quest of extraneous arguments to prove that it is not to beunderstoodinthesense which it naturally presents.* Those cavillers, who dispute the sense of a clear and determinate article , are accustomed to seek their frivolous subterfuges in the pretended intentions and views which they attribute to its author. It would be very often dangerous to enter with them into the discussion of those supposed views, that are not pointed out in the piece itself. The following rule is better calculated to foil such cavillers, and will at once cut short all chicanery:—If he who could and ought to have explained himself clearly and fully, has not done it, it is the worse for him: he cannot be allowed to introduce subsequent restrictions which he has not expressed. This is a maxim of the Roman law: Pactionem obscuram iis nocere, in quorum fuit potesiate legem apertius conscribere.†69 The equity of this rule is glaringly obvious, and its necessity is not less evident. There will be no security in conventions, no stability in grants or concessions, if they may be ren- * Standum omnino est iis, quae verbis expressis, quorum manifestus est significatus , indicata fuerunt, nisi omnem a negotiis humanis certitudinem removere volueris . Wolf. Jus Nat. par. vii. n. 822. [[Note added in 1773/1797 editions.]] † [[Justinian’s]] Digest. lib. ii. tit. xiv. de Pactis, leg. 39.—See likewise Digest.lib. xviii. tit. i. de Contrahenda Emptione, leg. 21. Labeo scripsit obscuritatem pacti nocere potius debere...


Subject Headings

  • International law.
  • War (International law).
  • Natural law.
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