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Formalismo e antiformalismo nell'interpretazione dei trattati nei recenti lavori della Commissione del diritto internazionale


In its Draft Conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties the International Law Commission (ILC) has taken a formalistic approach to treaty interpretation, according to which the interpreter should aim at discovering the will of the Parties (and the true meaning of a treaty clause) by using a single combined operation. This means that the interpreter should throw into a crucible all the means of interpretation indicated in Articles 31 and 32 of the 1969 Vienna Convention. The present paper suggests that the depiction of the interpreter as an alchemist who blends different ingredients and gives them the proper weight is a cover that actually conceals interpretative choices. Moreover, the ILC’s “single combined operation” approach probably intends to reassure governments about the interpreters’ loyalty to the (presumed) intention of the parties, but is at variance with some anti-formalistic concepts enshrined in the Draft Conclusions themselves. After analysing these contradictions, the paper finally queries the very utility of issuing guidelines to interpret the rules of the Vienna Convention on treaty interpretation.