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Chicago Journal of International Law

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194

Abstract

Treaty interpretation has long drawn from the practice of contract interpretation. This is because, structurally speaking, treaties and contracts share many features. While the contract paradigm of treaty interpretation may work well for “ordinary” treaties—that is, treaties that have relatively low transaction costs for negotiating and renegotiating, whose fallout would not produce possibly disastrous consequences, and whose contents reify other, previously instantiated commitments between the parties—there is reason to doubt its efficacy with respect to “momentous” treaties. Momentous treaties are those whose transaction costs are tremendously high, fallout from which would jeopardize critical international security and prosperity goals, and that are often not supported by previous treaties securing the same or similar goals. Since the contract paradigm of interpretation largely focuses on the text of a treaty, it might be ill-suited to promote trust between the parties, which is especially important for maintaining momentous treaties. I argue that when it comes to interpreting momentous treaties, international institutions should opt for a “covenant paradigm of interpretation” over the contract paradigm of interpretation. Drawing on historical and anthropological work on the ancient Near East and Bible, I provide an account of “covenant interpretation” that calls on interpreters to focus not only on the text, but also on the parties’ broader shared history and normative values. Using this paradigm, international institutions can remedy contract interpretation’s trust-building deficit

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