Thursday Thinkpiece: Hollis on Interpretation of International Law

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The Existential Function of Interpretation in International Law
Duncan B. Hollis
SSRN: http://ssrn.com/abstract=2330642

(Footnotes omitted. They are available in the online version via the link above.)

Introduction

International law does not exist without interpretation. Consider the legality of using force to prevent further atrocities in Syria. Traditionally, international law precludes States from doing so unless in self-defense or pursuant to UN Security Council authorization. Proponents of Syrian intervention may, however, cite a ‘new’ norm in international law—the responsibility to protect or ‘R2P’—as a third rationale for deploying forces to Syria. On the grounds that a State has a ‘responsibility to protect’ its population from mass atrocities, R2P provides other States with a right to intervene when that State manifestly fails in its responsibilities, including the proportionate use of force as a last resort.

What does R2P mean when it comes to the Syrian situation? Answering that question requires elaborating R2P’s elements more comprehensively. What acts constitute ‘atrocities’? Are there standards for identifying the ‘last resort’ threshold? Interpreters may employ various methods to answer such questions, ranging from inductive ones—i.e., giving R2P meaning based on past practice—to deductive approaches—i.e., giving R2P content by reference to its purposes. These methods may not generate the same result; different interpretative methods can ascribe different meanings to R2P. Further divergences may arise among those employing the same method who utilize different ‘techniques’ or have different skill levels. These variations in method and technique explain how one interpreter may construct the facts in Syria to trigger R2P and justify the use of force, while another denies its applicability there. Critical legal scholars suggest such indeterminacy is inherent to international legal discourse. But that has not precluded States and scholars from debating whether international law has (or should have) specific rules to regulate the interpretative methods and techniques international lawyers use.

For all the value in existing debates over method, technique, and determinacy, the concept of interpretation they produce remains incomplete. Interpretation in international law is not simply the act of ascribing meaning to a particular rule; interpreters in the act of interpreting validate the rule’s very existence. International law’s interpretative processes can be likened to an iceberg—a rule’s meaning arrived at by an interpreter is not simply a function of the method and technique employed (the visible tip) but rests on an array of earlier choices about whether the rule ‘exists’ to be interpreted in the first place (the iceberg’s hidden, critical mass). International legal interpreters cannot give R2P meaning, for example, without validating R2P’s existence within the corpus of international law, whether by explicit analysis or assumption. Of course, others may—and, in fact, do—interpret the state of international law quite differently. A substantial number of international actors deny that R2P currently constitutes international law. And if R2P is not international law, there is no legal basis for using it to justify intervention generally, let alone in Syria.

Both R2P’s proponents and detractors are engaged in a particular type of interpretative process—what I call ‘existential interpretation’. Existential interpretations are binary—a process of deciding whether or not the subject of the interpretation exists or has validity. They are a necessary component of any international legal interpretative process. Simply put, all interpretations of international law have an existential function. But not all existential interpretations involve international law; interpreters may exclude subjects from the international legal order just as they may include them.

Existential interpretations are most visible in the context of assertions (or denials) of ‘new’ rules of international law like R2P. But existential interpretations are not limited to novel contexts. They arise at all levels of international legal discourse, from evidentiary questions to ontological ones. Existential interpretations are central to debates over what ‘counts’ for purposes of State practice under customary international law. Interpreters who only recognize what States ‘do’ as State practice may generate different content for a rule than those who also consider what States ‘say’ about it, even holding constant the interpretative method and technique employed. Similarly, treaty interpretations under the 1969 Vienna Convention rest on an existential interpretation that the interpreted text actually constitutes a treaty. More broadly still, existential interpretations suffuse questions about whether sources of international law exist beyond the troika listed in Article 38(1) of the Statute of the International Court of Justice.

To date, international law’s interpretative theories and practices have given little attention to the phenomenon of existential interpretation. This paper seeks to remedy that oversight and explain why they are worthy of closer study. Part I briefly surveys the existing field of interpretation in international law to demonstrate its emphasis on exposition. Part II distinguishes interpretation’s existential function, introduces the concept of existential interpretation, and identifies examples from practice with respect to authority, evidence, rules and sources of international law. Part III examines how existential interpretations impact international legal (i) discourse, by broadening or limiting discursive boundaries for contestation or resolution; (ii) doctrine, as international law may arise directly from existential interpretations or indirectly from the choices about the existence of authority, evidence or sources on which the doctrine rests; and (iii) theory, since existential interpretations can operate as a proxy for theoretical disagreement about the nature and source(s) of international law (i.e., positivists may insist interpreters exclude from their toolbox the same soft law sources that naturalists insist require effectiveness as a matter of right).

The paper concludes with a call for international actors to pay more attention to interpretation’s existential functions. Practically speaking, actors may wish to consider the costs and benefits of employing existential interpretations in international legal discourse and of delegating interpretative authority. More generally, by studying when States and other actors deploy existential interpretations, we may gain a new lens for evaluating the unity and fragmentation of international law itself.

. . . .

Conclusion: Studying Existential Interpretations
. . . .

By studying existential interpretations, international lawyers obtain a new lens for examining international law’s fragmentation. Instead of examining fragmentation along a single axis (e.g., norms), mapping existential arguments offers a way to gauge the extent of unity versus fragmentation along multiple axes. Since existential interpretations are manifest throughout international legal discourse, questions of unity or fragmentation can be examined in terms of authority, the sources of international law, the rules of international law and the evidence on which they are based, the actors who may participate, or the remedies international law affords. In each area, the number and depth of existential debates offers a rough gauge for mapping unity versus fragmentation. Where existential inquiries are absent or where a consensus exists on the answers, unity may be presumed. Conversely, where there are existential disputes, they indicate fragmentation.

We might even use the number and type of existential disagreements to map international law’s interpretative communities. One could envision some areas of universal agreement—core areas of consensus on the existence of certain aspects of international law (e.g., pacta sunt servanda, States as subjects of that law). And where existential disagreements do arise, we might be able to map different interpretative communities based on adherents or opponents to different existential interpretations. All told, studying existential interpretations could provide a more nuanced view of unity and fragmentation than existing efforts.

Ronald Dworkin once suggested that ‘Law cannot flourish as an interpretive enterprise in any community unless there is enough initial agreement about what practices are legal practices’. He assumed, moreover, that lawyers ‘have no difficulty identifying the practices that count as legal practices in our own culture’. In its current form(s), international law tests Dworkin’s thesis. At every level—from authority to the sources of law— international lawyers contest what ‘counts’ for purposes of international law. But contrary to Dworkin’s assertions, these existential debates need not serve as evidence that international law is failing to flourish. On the contrary, existential interpretations evidence a legal order that is maturing in depth and breadth. Even if there is fragmentation of views on the distribution of authority, law, and its sources, that does not necessarily signal a lack of unity in other respects; international lawyers may, as Mario Prost noted, still share a commitment to a common language or culture.168 Indeed, whatever else the existential function of interpretation in international law may say, one thing is clear. International law exists as something worthy of our ongoing efforts to give it meaning.