The art of proper treaty interpretation is essential in international adjudication. In the light of its importance, it is odd that not more has been written on the process of treaty interpretation, particularly on the development of legal norms and semantic changes through the day-to-day interpretation of the text. This book presents a thoughtful and well-researched exploration of the critical importance of the practice of interpretation in the development of international law, a topic that is often neglected in discussions of the sources of international law.

In Chapter I, entitled ‘In the Beginning was the Deed’, Venzke describes Wittgenstein's identification with the scene from Faust in which the protagonist, seeking comfort from his troubles, opens the Bible and translates into German the first sentence of the Gospel of Saint John. Uncertain about how to translate the Greek word ‘λόγος’, he first translates the entire phrase as ‘Am Anfang war das Wort’ [‘in the Beginning was the Word’] but then realizes it is impossible to rate ‘the Word’ so highly and therefore settles on ‘In the Beginning was the Deed’ [‘Tat’]. Wittgenstein believed this summed up his philosophy and indeed, this also reflects the underlying philosophy of Venzke's book, namely, to understand international law, one must not only examine the words but also how those words have been interpreted in practice. Venzke describes the importance of ‘the Word’ in Article 31 of the Vienna Convention on the Law of Treaties (VCLT) through the emphasis on the ordinary meaning as the starting point of interpretation. This emphasis was largely the work of Sir Humphrey Waldock, the last Special Rapporteur at the International Law Commission, on the codification of the law of treaties. Many commentators such as Myres McDougal and Hersch Lauterpacht rejected the emphasis on the ordinary meaning. They argued in favour of interpreting the treaty in the light of the general purpose which the treaty is intended to serve, considered in connection with the ‘historical background of the treaty, travaux préparatoires, the circumstances of the parties at the time the treaty was entered into, the change in the circumstances sought to be effected’.Footnote ¹ A problem with this approach is that it is often impossible to find a uniform intention among the drafters. It is for this reason that travaux préparatoires are listed as a supplementary means of interpretation in the VCLT.

As Venzke explains, the practice of interpretation (the Deed) accounts for semantic change and legal developments. He notes that from the orthodox positivist perspective of law-making, a norm is considered binding because those subject to the norm have themselves created the sources of the norm. Semantic content is then applied in the process of interpretation. Thus, there is a shift of legal normativity from the sources of law to the practice of interpretation. In other words, the focus shifts from the original text of the sources of law to the interpretation of the law in practice. As Venzke argues, the drafters of the sources of international law are ‘chronically myopic with regard to changes in the law by way of semantic shifts …’ and explains that this ‘blind spot is the book's focus'. Venzke discusses the immediate normative consequences that occur when the practice of interpretation develops international norms. First, he explains that one must improve the institutional conditions under which legal developments by way of interpretation arise. Second, he notes that the power to interpret a treaty so as to create a new norm is one that must be exercised responsibly. Third, he demonstrates through two case studies that the development of international law through international institutions shifts the weight of the law away from the state as the source of law.

Chapter II discusses the practice of interpretation from a theoretical perspective. Venzke observes that his focus on practice giving meaning to norms redirects attention away from traditional views on lawmaking. Article 38 of the Statute of the International Court of Justice (ICJ) and Articles 6 to 17 of the VCLT provide that states are the only subjects that can create international law. However, international courts and international institutions raise interpretative issues as to what the law says. Moreover, traditional approaches view the act of interpretation as uncovering the true meaning of the text. Venzke develops a more nuanced approach that sees interpretation as influencing the creation of the outcome by employing one type of legal reasoning over another. This chapter analyses how orthodox legal positivism posits state consent as the exclusive basis for legal validity. This approach was reflected in the S.S. Lotus case, in which the Permanent Court of Justice stated that ‘[i]nternational law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will’.Footnote ² Thus, the sources of law set out in Article 38 of the ICJ statute reflect the manifestation of state consent. However, as Hans Kelsen argued, a categorical distinction between law-creation and law-application is untenable as every act of law-application is also one of lawmaking. Venzke observes that the resulting semantic changes wrought by the interpretation of black-letter law shifts the focus from sources of state consent to the communicative practices of interpretation.

Venzke illustrates the flexibility afforded by practice of communicative lawmaking through the concept of evolution. Ian Sinclair noted that ‘[t]he evolution of the law can be taken into account in interpreting certain terms in a treaty that are by their very nature expressed in such general terms as to lend themselves to an evolutionary interpretation’. The Appellate Body of the WTO reflected this approach in China – Publications and Audiovisual Products in which it stated ‘the terms used in China's GATS Schedule are sufficiently generic that what they may apply to may change over time’.

Venzke describes disputes about what the law means as a semantic struggle demonstrating how actors such as the UNHCR or the Appellate Body make interpretative claims that are aligned with their interest or convictions. He notes that their interpretations form part of the legal discourse to the extent that their ‘communications become reference points in later legal argument so that distinctions between interpretations, on the one hand, and what was to be interpreted, on the other start to blur’. Venzke then discusses the role of actors such as international organizations or international judicial institutions that can shift meaning and establish their own interpretations as the new reference point for legal discourse. This occurred in the recent Argentina–Import Measures case, where Argentina's appeal was based on its arguments that the Panel should have relied upon a different legal interpretation of the Appellate Body, and did not involve specific terms of a WTO agreement.

Chapter III examines how the bureaucracy of an international organization can make law in the absence of an effective law-making body. Venzke examines the evolution of the United Nations High Commission for Refugees (UNHCR) from an organization that provided quasi-consular protection to a small group of refugees to the world's leading agency providing humanitarian assistance to millions of people. This evolution occurred because the UNHCR succeeded in restructuring the debate concerning the meaning of its mandate of ‘providing international protection … to refugees' so that it focused less on the definition of refugee per se and more on the broader concept of those who need international protection. Under Sadruddin Aga Khan, High Commissioner from 1966 to 1977, the UNHCR's mandate expanded to providing assistance to displaced persons who faced problems analogous to those of refugees. This ever-growing responsibility, brought about by expansive interpretations by senior management of the UNHCR without any change in the text of the mandate, resulted in an increase in budget from $300,000 in 1950 to $510 million in 1980. The UNHCR developed the Handbook on Procedures and Criteria for Determining Refugee Status and Protection Guidelines that interpreted international refugee law so as to clarify its mandate to include providing protection in gender-related persecutions and child asylum claims. Although the Handbook and the Guidelines do not qualify as a source of law within Article 38 of the ICJ Statute, they have nevertheless served to broaden significantly the legal mandate of the UNHCR. Thus, Venzke illustrates how the legal practice of international organizations can change international norms, without any direct state conduct.

Chapter IV, which is likely to be of the most interest to WTO practitioners, discusses adjudication in the GATT and the WTO focussing on the interpretation of the general exceptions of Article XX in the GATT 1994. Venzke explains that although the text of Article XX has remained unchanged since 1947, international norms have evolved through semantic disputes developed through judicial precedent. In US–Tuna (1982) and in US–Tuna Dolphin I (1991), GATT panels found that the prohibition of the imports at issue was in violation of Article XI and was not justified under Article XX (b) or (g) of the GATT. One key element in the panels' analysis was that, if a country could prohibit imports on the basis of the conditions under which the products were produced outside its territory, it would mean that it could dictate changes in the policies of other countries. Venzke shows that this approach was firmly rejected in US–Gasoline (1996), where the Appellate Body disregarded policy concerns about internal regulation for non-trade concerns and followed instead the principles of treaty interpretation. In particular, the Appellate Body noted that measures seeking justification under Article XX will be those conditioning access to a Member's domestic market depending on whether the exporting Member complied with policies unilaterally prescribed by the importing Member. When a similar issue arose in US–Shrimp (21.5), the Appellate Body held that the Article 21.5 panel ‘had, necessarily, to consider our views on this subject as we had overturned certain aspects of the findings of the original panel, and more important, provided interpretative guidance for future panels'. As Venzke observes, ‘the weight the Appellate Body attaches to its previous reports almost makes a mockery out of suggestions that the reports have no legal effects beyond the parties to the dispute'. José Alvarez, a leading international law scholar, noted the Appellate Body has given a new layer of meaning to Article XX of the GATT without any change in the text.

Venzke discusses the creative interpretations and normative twists in Chapter V. This chapter is quite academic and discusses the normative implications of the development of international norms through interpretative practice. It assesses how interactional actors frequently seek to justify their legal interpretations through a rhetoric of justice whereas others are sceptical about such invocations of justice. Although meticulously rigorous in its analysis, this chapter contains a more detailed discussion of the issues than most practitioners would need.

In the Epilogue entitled ‘In the End there is Eternity’, Venzke confirms the overall thesis of the book, namely that texts come to life in the practice of interpretation. In this reviewer's opinion, the book makes a useful contribution to the understanding of the underlying complexities in the exercise of treaty interpretation.