Title: Interpretation in International Law and International Rule of Law - Any Lesson for Jurisprudence?
Abstract: This paper has no tendency of solving intricate problems indicated in its title. It simply aspires to map them, so that some possibly new directions of their elucidation can be hinted. A cursory excursion into history, taken in the first part of the paper, will demonstrate that international law was most often either completely neglected as a subject matter of jurisprudence or it was routinely denied the status of ‘true’ law. By contrast, it is possible to argue that the contemporary international law is in many important respects becoming a test case for any coherent general theory of law. Not only that our intuition tells us that international law is law and that it is as such treated by numerous international institutions and actors (both state and non-state alike), but all the conceptual challenges regarding international law can be also met quite successfully. Consequently, jurisprudence needs to be apt to incorporate apparent specificities of this body of legal rules. One of them concerns the key sources of international law – international customary rules and international treaties – which are discussed in the second part of the paper. When it comes to the former, the real controversy concerns the conceptual issue of the identification of a particular rule as belonging to the international customary law. When it comes to the latter, perhaps the most pertinent issue is that of interpretation. Namely, apart from textualism and purposivism, one of the dominant interpretative techniques in international treaty law is intentionalism, which is presumably not quite often used in domestic law. This feature is a corollary of the fact that states are at the same time legislators and addressees of international treaty rules, which, in turn, triggers not only interesting interpretative debates, but also some more profound normative questions regarding the appropriate role of international judiciary. This role has particularly to be elucidated in light of the concept of ‘international rule of law’, which has recently become one of the most important ideals to which the international legal community as a whole is committed. However, it will be demonstrated in the third part of the paper that the ‘international rule of law’ can be, generally speaking, understood along the lines of a broader, more substantive conception, which puts individual human beings at the forefront, as well as along the lines of a narrower, more formal conception, which still favors states as primary beneficiaries of this principle. Neither of these conceptions can be developed to the full extent, just as each of them might more adequately fit the particular areas of international law, thereby implying the use of different normative standards for the assessment of the role of respective judicial bodies and their interpretative techniques, as it will be shown in the fourth part. After framing a larger portrait of the current state of affairs of international law along the aforementioned coordinates, the paper will conclude by raising some substantive and methodological issues, which jurisprudence, understood as general theory of law, cannot arguably solve by solely focusing on the standard (domestic) case of law, while entirely neglecting the exceptional case of international law.
Publication Year: 2013
Publication Date: 2013-02-20
Language: en
Type: article
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