Globalization & Law Network Seminar ‘International Law and the Absurd’ with Wouter Werner

After short Christmas break, the Globalization and Law Network resumed its bi-weekly seminars with invited experts who study the role of law in a globalizing world. On 11 January 2023, the Globalization & Law Network welcomed Professor Wouter Werner (International Law at the Centre for the Politics of Transnational Law of the VU Amsterdam), who presented his recent paper with an exciting title “International Law and the Absurd”. Dr Aleksandre Skander Galand acted as a discussant. The seminar was co-organized with the department of Foundations and Methods of Law (chaired by Professor Roland Pierik).

The presentation by Professor Werner sat at the intersection of international law of treaties and legal philosophy. He focused on Article 32 of the Vienna Convention on the Law of Treaties (VCLT), which precludes the interpretation of the treaty when it ‘leads to a result which is manifestly absurd’. However, it remains obscure what is meant by the ‘absurd’. Professor Werner undertook to shed light on this notion and reflect on how lawyers can avoid absurd interpretations of legal provisions. As there is no legal scholarship on absurdity, he made recourse to philosophy and, most importantly, the theatre of the absurd to get a deeper insight into this concept. To demonstrate the main techniques used by absurdist authors, Professor Werner referred to the play ‘Happy Days’ by Samuel Beckett, which lacked any background, structure, or cohesive narrative. Curiously, it turned out that absurdist fiction often contains numerous references to the law. At the same time, Professor Werner highlighted a significant difference between absurdist writers and lawyers. In contrast to the former, the latter are required to provide an exposition (travaux préparatoires of the treaty), elaborate the plot (textual interpretation of the treaty), and reflect on the future of the legal provision (object and purpose of the treaty). Therefore, one can avoid arriving at an absurd understanding of the legal provision by ensuring its comprehensive interpretation in line with the requirements of Articles 31 and 32 VCLT.

In response to the arguments made by Professor Werner, Dr Aleksandre Skander Galand, elaborated on the scholarly debates revolving around the relationship between Articles 31 and 32 VCLT. Even though Professor Werner is convinced that the said provisions must always be viewed in conjunction since there is always a risk that the outcome of the interpretation could be absurd, the majority of academics contend that Article 31 VCLT takes precedence, whereas the recourse to supplementary means of interpretation under Article 32 VCLT can be made where the meaning of the legal provision remains unclear. Furthermore, Skander offered compelling examples of absurd interpretations in various fields of international law, including human rights law (most notably, the decision of the European Court of Human Rights in Ilaşcu and Others v Moldova and Russia) and international humanitarian law (in particular, the responsibility of commanders for the actions of their subordinates in the case law of the International Criminal Tribunal for the former Yugoslavia).

The lively discussion was later joined by other participants of the seminar. The questions raised concerned the role of contextualisation of law as a means of preventing absurd interpretations, the extent to which the absurdity may be tolerated or even encouraged in international law, and the applicability of the ‘theory of the absurd’ in other areas of law. The debate revealed the need to further define the notion of ‘absurd result’ and reflect on whether it can be transformed into an objective standard that could be widely used by legal practitioners.

We are thankful to Professor Werner for his visit and remarkable input. If you are interested in attending the upcoming Globalization & Law Network seminars, you can view the program and register here.