The Foundations of Originalism in Domestic Constitutional Law

Originalism emerged as a response to what its proponents saw as unchecked judicial discretion in constitutional interpretation. At its core, originalism holds that a legal text—whether a constitution, statute, or contract—should be interpreted according to its meaning at the time of its adoption. This philosophy seeks to constrain judges from imposing their own policy preferences and to anchor legal reasoning in objective, historical facts rather than evolving social values.

Two main branches of originalism dominate the debate. Original intent originalism seeks to recover the subjective intentions of the framers—what they personally understood the text to mean. Original public meaning originalism, now the dominant strand in American constitutional theory, instead asks what a reasonable person at the time of enactment would have understood the text to mean, based on ordinary language, legal conventions, and public discourse. Justice Antonin Scalia, perhaps the most famous advocate of original public meaning, argued that this approach preserves democratic legitimacy by tying interpretation to the sovereign act of ratification rather than the private views of individual drafters.

In domestic law, originalism has been applied most frequently to the U.S. Constitution, with notable decisions on the Second Amendment (District of Columbia v. Heller), the Eleventh Amendment (Alden v. Maine), and the scope of executive power. Its influence extends to other common law jurisdictions, including Canada, Australia, and Israel, where courts occasionally invoke original meaning as one factor among many in constitutional interpretation.

However, even in the domestic context, originalism faces serious challenges: historical evidence may be inconclusive, the original meaning may be irreducibly vague on modern questions, and later precedents may have settled doctrinal paths that depart from original understandings. These difficulties intensify dramatically when originalism is transplanted from the relatively contained environment of a single national constitution to the sprawling, decentralized, and multilingual domain of international law and treaties.

The Distinctive Nature of International Law and Treaties

International law operates on fundamentally different premises from domestic constitutional law. A national constitution emerges from a single sovereign political community, often through a defined ratification process, and is enforced by a centralized judicial hierarchy. International law, by contrast, arises from the horizontal consent of sovereign states, lacks a centralized legislature, and relies on fragmented enforcement mechanisms. Treaties are negotiated texts that reflect compromises among parties with divergent legal traditions, strategic interests, and cultural assumptions.

No Single Sovereign or Ratification Moment

In domestic originalism, the "ratification moment" provides a clear temporal anchor: the text was proposed, debated, and adopted at a specific historical point. For international treaties, the process is far messier. A treaty may be negotiated over years, opened for signature, subject to reservations and declarations, and enter into force only after a threshold number of ratifications. Some parties may ratify decades after the treaty's conclusion. The "original meaning" at the time of signature may differ from the meaning at the time of a later state's accession, and states may have held genuinely different understandings of their obligations from the outset.

Multilingual Texts and Authentic Languages

Most multilateral treaties are drafted in multiple languages—often English, French, Spanish, Russian, Arabic, and Chinese—each designated as equally authentic. Under Article 33 of the Vienna Convention on the Law of Treaties (VCLT), when a comparison of authentic texts reveals a difference of meaning that cannot be resolved through ordinary interpretive methods, the meaning that best reconciles the texts in light of the treaty's object and purpose prevails. An originalist approach that privileges one language version or one party's understanding would violate this cardinal rule.

The Role of Object and Purpose

Article 31(1) of the VCLT requires that a treaty be interpreted "in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." This teleological element—interpretation by reference to a treaty's overarching goals—is central to international law and sits uneasily with originalism. While originalists can and do consider purpose as discerned from the text and historical record, the VCLT's approach pulls toward a more dynamic, effect-oriented interpretation, especially in human rights, environmental, and institutional treaties.

Core Challenges in Applying Originalism to International Treaties

The structural differences between domestic and international law generate a series of specific obstacles for an originalist approach to treaty interpretation.

Ambiguity of Collective Intent

Originalism requires some identifiable intent, whether subjective or objective. But in multilateral treaties with dozens or hundreds of parties, there is no single "original understanding" to recover. Negotiating records (travaux préparatoires) may reveal the views of leading delegations, but these are not necessarily shared by all signatories. Smaller states may have acceded without active participation in drafting, and their understanding may differ. The International Court of Justice has consistently held that travaux préparatoires are supplementary means of interpretation, not the primary source of meaning—a stance that reflects the difficulty of ascribing collective intent to a multiparty negotiation.

Language Barriers and Translation Gaps

Even when drafters agree on a provision, the translation into equally authentic languages may introduce subtle disparities. For instance, the English word "arbitrary" in a human rights treaty may not carry exactly the same connotations as the French "arbitraire" or the Spanish "arbitrario." An originalist who insists on the original public meaning of the English version would be ignoring the equally authoritative status of other language texts and the interpretive principle that authentic texts should be harmonized.

The Static-Freeze Problem

Perhaps the most fundamental challenge is that originalism, if applied rigidly, would freeze treaty obligations at the moment of their creation. International law evolves through subsequent state practice, customary law development, and the emergence of new norms (jus cogens). Human rights treaties in particular, such as the European Convention on Human Rights, have been interpreted as "living instruments" whose meaning expands over time to reflect changing social conditions. The European Court of Human Rights has explicitly rejected an originalist approach, holding in Tyrer v. United Kingdom (1978) that the Convention is "a living instrument which must be interpreted in the light of present-day conditions." Applying an originalist method to such treaties would reject decades of settled jurisprudence and potentially undermine rights protections that states have accepted through subsequent practice.

Subsequent Practice and the VCLT

Article 31(3)(b) of the VCLT requires that in interpreting a treaty, account shall be taken of "any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation." This provision explicitly incorporates post-ratification conduct into the interpretive process. States often clarify or even alter their understanding of treaty obligations through consistent practice over time. A strict originalist framework that disregards subsequent practice would contravene this fundamental rule of treaty interpretation.

Intertemporal Law and Normative Change

The doctrine of intertemporal law, articulated by the International Court of Justice in the Island of Palmas arbitration (1928), holds that a legal transaction must be judged in light of the law contemporaneous with its creation. However, the same case also recognized that the continued existence of a legal right depends on its conformity with the evolving law. This dual aspect creates a tension that originalism cannot easily resolve: should a treaty term like "torture" or "slavery" be interpreted according to its 1950 meaning, or does it incorporate the evolving international understanding of those concepts? Most international tribunals have adopted the latter view, treating certain terms as inherently dynamic.

Case Studies: Originalism in International Adjudication

The practical difficulties of an originalist approach become clear when we examine specific contexts where it has been attempted or debated.

The Genocide Convention and Intent

The 1948 Genocide Convention defines genocide as certain acts "committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such." The International Court of Justice, in the Bosnia v. Serbia case (2007), interpreted "intent" and "as such" by reference to the Convention's drafting history, the work of the International Law Commission, and subsequent state practice. While the Court consulted the travaux préparatoires, it did not treat the framers' understanding as dispositive. Instead, it developed a nuanced approach emphasizing the need for a specific, dolus specialis intent that cannot be inferred solely from the pattern of atrocities. An originalist method that gave conclusive weight to the drafters' statements would have to ignore the subsequent practice of international criminal tribunals, which have significantly elaborated the mental element of genocide in ways not foreseen in 1948.

UN Charter Interpretation and Structural Change

The UN Charter has been interpreted since 1945 in ways that diverge from the original intentions of its drafters. The Security Council's expansion of its powers under Chapter VII, the General Assembly's adoption of the "Uniting for Peace" resolution, and the development of peacekeeping operations all depart from the strict text and original understanding of the Charter. An originalist approach would invalidate much of the practice that has allowed the UN to adapt to new threats and geopolitical realities. The International Court of Justice, in the Certain Expenses advisory opinion (1962), implicitly rejected originalism by holding that the UN's implied powers must be assessed in light of the organization's evolving functions.

Human Rights Treaties as Living Instruments

Regional human rights courts have been the most explicit in rejecting originalism. The European Court of Human Rights regularly updates the interpretation of Convention rights to reflect societal changes, as seen in cases on same-sex partnerships ( Schalk and Kopf v. Austria), assisted reproduction (S.H. v. Austria), and data privacy. The Inter-American Court of Human Rights has similarly held that the American Convention on Human Rights must be interpreted in light of evolving regional and international human rights standards. An originalist approach to these instruments would not only contradict decades of consistent jurisprudence but also defeat the very purpose of human rights treaties, which is to establish minimum protections that gain content over time through democratic deliberation and judicial elaboration.

Arguments in Favor of Originalist Elements in Treaty Interpretation

Despite these formidable challenges, elements of originalist reasoning do play a role in international law, and some commentators argue for a more systematic application of originalist principles.

The principle of state consent is foundational to international law: states are bound only by obligations they have voluntarily assumed. A strong version of originalism can be appealing because it anchors treaty obligations to the text that states actually approved, limiting the ability of tribunals to impose obligations that states never intended. This concern is especially acute in investment treaty arbitration, where tribunals have sometimes expanded the meaning of fair and equitable treatment or expropriation beyond what states understood when ratifying the relevant treaties. In this context, a greater emphasis on the original text and negotiating history could reinforce the consensual basis of international law.

Ordinary Meaning as a Starting Point

The VCLT begins with "ordinary meaning" in context, which bears a family resemblance to original public meaning originalism. International tribunals routinely consult dictionaries, contemporary texts, and negotiating records to determine the meaning of treaty terms at the time of drafting. This is especially important for technical treaties—those governing extradition, taxation, or maritime boundaries—where precision and stability are paramount and where dynamic interpretation would create uncertainty. The International Law Commission's commentaries on the VCLT emphasize that the starting point for interpretation is the text itself, not the supposed intentions of the parties. In practice, most international tribunals treat the text as the primary guide and resort to supplementary means only when the text is ambiguous or leads to a manifestly absurd result.

Original Meaning as a Constraint on Judicial Activism

Critics of evolutive interpretation argue that it transfers excessive power to judges and away from states. When the European Court of Human Rights "updates" the meaning of a Convention right, it effectively imposes new obligations without the explicit consent of states—a form of judicial legislation. An originalist constraint would require that any new interpretation be traceable to the text's original meaning or to subsequent state practice that clearly establishes a new consensus. This argument resonates in the investment arbitration context, where states have withdrawn from the regime in part due to perceived overreach by tribunals. A more originalist approach could restore legitimacy by demonstrating that tribunals are enforcing obligations that states actually undertook, not inventing new ones.

Criticisms and Responses: The Case Against Originalism in International Law

The arguments against transplanting originalism to international law are not merely practical but go to the normative foundations of the system.

Inequality in Negotiating Power

Originalism privileges the views of the drafters, who in many international negotiations are representatives of powerful states and interest groups. Developing countries often accede to treaties that were negotiated before they gained independence or without meaningful participation in the drafting process. To interpret such treaties according to the original intent of the drafters would entrench historical power asymmetries and ignore the perspectives of later-joining states, which may have different understandings of the instrument's purpose. This is a fundamental equity concern that originalism, with its backward-looking orientation, cannot easily address.

The Problem of Customary International Law

A significant portion of international law is not treaty-based but customary: general practices accepted as law. Customary international law is inherently dynamic, evolving through state practice and opinio juris over time. Originalism has no meaningful application to customary rules, which lack a fixed textual foundation or a single moment of creation. If originalism were adopted as a general interpretive theory for international law, it would either have to exclude customary norms entirely or attempt to freeze their content at some historical point, which would be both impractical and normatively unattractive.

Normative Progress and Human Rights

Perhaps the most powerful criticism is that originalism would arrest the normative development of human rights law. The prohibition of torture, the right to a fair trial, and protections against discrimination have all been expanded through evolutive interpretation. An originalist approach would require that these concepts be understood as they were in 1948, 1950, or 1966, which in many cases would mean endorsing standards that are now considered inadequate or even repugnant. For example, the European Convention on Human Rights was originally interpreted as permitting corporal punishment in schools (the Tyrer case overruled this), and some provisions were read to exclude certain forms of sexual orientation discrimination. The living instrument doctrine has been central to the progressive realization of rights, and abandoning it would represent a significant normative regression.

Toward a Pragmatic Synthesis: Original Meaning as a Starting Point, Not an Endpoint

Given the structural and normative challenges, a wholesale adoption of domestic-style originalism for international law and treaties is neither feasible nor desirable. However, elements of originalist reasoning can and should play a role in a more comprehensive interpretive approach.

Original Meaning as a Strong Presumption

Treaty interpretation should begin with the ordinary meaning of the text at the time of its conclusion, considered in context and in light of the treaty's object and purpose. This presumption serves important values of predictability, stability, and respect for state consent. When the text is clear and unambiguous, a tribunal should resist the temptation to depart from it based on perceived policy preferences. Originalism, at least in a moderate form, provides a useful corrective against interpretive overreach.

Dynamic Interpretation for Open-Textured Norms

At the same time, many treaty provisions are deliberately open-textured, employing terms like "reasonable," "fair," "human dignity," or "arbitrary." Such terms invite evolutive interpretation precisely because they were intended to accommodate changing circumstances. An originalist approach that insisted on freezing these terms at their 1950 meaning would defeat the object and purpose of the treaty. The challenge is to distinguish between provisions that are genuinely indeterminate and those that have a clear historical meaning that should constrain interpretation.

Subsequent Practice as a Source of Legitimate Evolution

The VCLT's inclusion of subsequent practice offers a principled middle ground. When states have consistently acted on a new understanding of their treaty obligations, that practice can legitimately update the interpretive framework without requiring formal amendment. This approach respects both the original text (which is not discarded) and the ongoing consent of states as expressed through their conduct. It avoids the extremes of a frozen originalism on one side and unrestrained judicial creativity on the other.

Conclusion

The application of originalism to international law and treaties exposes fundamental tensions between interpretive stability and normative evolution, between state consent and institutional flexibility, and between the closed system of a national constitution and the open, pluralistic structure of international law. Originalism's focus on text and historical meaning offers valuable discipline in an interpretive environment that can easily slide into judicial policy-making. But the multinational, multilingual, and dynamic character of international agreements makes a rigid originalism untenable.

International tribunals should treat original meaning as a necessary starting point but not a conclusive endpoint. They should consult negotiating history and contemporary sources to understand what the parties likely meant, while remaining open to evolutive interpretation where the text, object, and purpose of the treaty support it. Subsequent state practice, the emergence of new peremptory norms, and the evolution of customary international law all provide legitimate grounds for updating treaty meaning. The goal is an approach that combines textual fidelity with institutional humility, respecting both the original bargain struck by states and the living character of international legal obligations in a changing world.

A pragmatic synthesis, drawing on the strengths of originalism while avoiding its limitations within the international legal system, offers the best path forward for interpreters seeking to reconcile stability and change, legitimacy and adaptability.