Abstract
Authority claims remain rooted in the antecedent existence of a degree of indeterminacy, in particular in the international legal system, in which a lack of systematicity characterises how international actors claim and exercise authority. The indeterminacies in international law give rise to certain practices and mechanisms designed to cure such deficiencies, and in particular these practices are observed by law-applying and law-interpreting bodies, of which international courts and tribunals tend to be the exemplars. These ‘authority claims’, far from being scattered and random claims for legitimation, in fact give a peek into international law’s structure as a legal system with mechanisms of determinability, these mechanisms being designed to privilege coherence and order. The discretion revealed in the practices of interpretation is in fact the outcome of interpretative practices, not their cause. Accordingly, the sustainable existence of a legal system remains rooted in the existence, identification, and study of its law-applying officials, whose authority depends in part on their recognition by a wider professional or epistemic community of international lawyers. The social and communitarian foundations of authority, therefore, complement any claims to interpretative authority engendered by the legal system itself.
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Notes
Beckett (2008), p. 65 (emphasis in the original). Though Beckett’s—and Hart’s—point is in relation to indeterminacy and its resolution by courts, it is relevant in relation to any institution or actor making a claim to interpretative authority.
Venzke (2013a).
Hart (1982), p. 243.
The understanding of the relationship between law and authority as is well laid out by Raz (2009a), in particular pp. 106–110.
Koskenniemi (2018), p. 42.
See e.g., generally, Weinrib (1997-1998).
Marks (2003), p. 144.
Lauterpacht (1949), pp. 75–76.
McLachlan (2005).
Hernández (2014a), pp. 257–263.
Ibid.
Kelsen (1970).
Ibid., pp. 82–83.
Ibid., p. 351.
Ibid., p. 349.
The modern ‘three-stage test’ used by the Court was first articulated in Maritime Delimitation in the Black Sea (Romania/Ukraine), Judgment, ICJ Reports 2009, p. 61: in short, the Court literally draws a legal line taking into account facts (a line equidistant between both States’ coastlines), but also its assessment of what might constitute ‘special circumstances’ (such as islands, concave shores, or access to natural resources); and thirdly, a rather notoriously subjective assessment of proportionality. The most recent assertion of the ‘three-stage test’ was in Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), Judgment of 12 October 2021, and it has already been picked up by ITLOS: see Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire), Judgment, ITLOS Reports 2017, p. 4.
Hart (2012), p. 252.
Ibid., p. 145. Hart’s theory on judicial interpretation was justified by his theory of the open texture of language: ibid., pp. 120–32.
Dworkin (1978), pp. 31-32. He distinguished his form of ‘weak’ discretion from the ‘strong’ discretion that he purported Kelsen and Hart attributed to legal officials (judges), which allowed them to reach for principles outside a legal system. Dworkin’s point is fair; if one examines Kelsen (1970), p. 352, his refusal to privilege any acceptable meaning within the frame is evident: ‘[f]rom the point of view of positive law, one method is exactly as good as the other’.
Koskenniemi (1989).
Ibid., p. 122.
Ibid., p. 387.
Ibid., p. 568: ‘whatever else international law might be, at least it is how international lawyers argue, […] and this can be articulated in a limited number of rules that constitute the “grammar”—the system of production of good legal arguments’.
Ibid., p. 591.
Koskenniemi’s ontological indeterminacy denies that only the meaning of a norm can be subject to dispute, and suggests that the very identity of the norm may be open to contestation. For further discussion, see Beckett (2005), p. 213.
Gadamer (1975), pp. 266–267.
I have written on this circularity elsewhere: see Hernández (2014b), pp. 318–319.
Koskenniemi (1989), pp. 584-588. The attack is especially evident in his chapters on sovereignty (Chapter 4), sources (Chapter 5) and custom (Chapter 6). For an excellent analysis of how the inexistence of coherence in this respect requires the imposition of order, perhaps through Neil MacCormick’s process of ‘rational reconstruction’, see Beckett (2006), pp. 1054–1055.
Koskenniemi (1989), p. 608.
Jouannet (2004), p. 943: ‘the international judge plays a non-negligible, in fact decisive role, in the affirmation of these normative hierarchies’. To the concern about participating in the safeguarding of the system in which the judge is situated, one might add a requirement of formal coherence insofar as their own judicial discourse is concerned. Both Koskenniemi and Jouannet seem on this point to align their thoughts with those of Bourdieu (1987), p. 843, who mocks ‘the magistracy’s declared neutrality and its haughty independence from politics [which] by no means exclude a commitment to the established order’.
Schwarzenberger (1968), p. 11; McNair (1961), pp. 531–532. This has to be distinguished from Kelsen’s idea of ‘authentic’ interpretation (as distinguished from ‘scientific’ interpretation); as explained by Kammerhofer (2011), p. 115, authentic interpretation is performed by organs authorised by the law to apply it; the result of authentic interpretation is a norm, or a law-creating act; authentic interpretation is an act of will, whereas scholarly interpretation is an act of cognition; ‘one determining what is law, the other finding the law’.
United Nations Conference on the Law of Treaties: Official Records: Documents of the Conference, A/CONF.3/11/Add.2, p. 39, para. 8, and ILC Yearbook 1966, Vol. II, pp. 219–220, para. 8. See further Hernández (2014a), pp. 326–329.
Venzke (2013a), p. 356. Venzke relies heavily, on this point, on Bourdieu (1987), p. 838: ‘[t]hese performative utterances, substantive—as opposed to procedural—decisions publicly formulated by authorized agents acting on behalf of the collectivity, are magical acts which succeed because they have the power to make themselves universally recognized [footnote omitted]. They thus succeed in creating a situation in which no one can refuse or ignore the point of view, the vision, which they impose’.
Raz (2009a), p. 19.
Raz (1986), p. 35.
Schauer (2008), p. 1935.
This allows for authority to persist even when it is defied: see Venzke (2013b), p. 399, referring to Max Weber’s idea that authority exists as the potential to command obedience, and not merely as the command itself.
Schauer (2008), pp. 1935–1936.
Ibid., p. 1939. See also Raz (2009a), pp. 22–25: Raz’s conception of authority does not depend on its impact on the balance of reasons, but demands that the addressee of a command substitute her own will for that of the authority.
Schauer (2008), p. 1944, who adds that the use of a source can be persuasive or authoritative, but it cannot be both simultaneously.
Barnett and Finnemore (2004), p. 5.
See Raz (2009a), p. 113; see also Schauer (2008), p. 1956: ‘to recognize something as authority, even optional and non-conclusive authority, is to take it seriously as a source and thus to treat its guidance and information as worthy of respect. That a legal system premised to its core on the very notion of authority would worry about what it is treating as authoritative should come as little surprise’.
Hernández (2014a), ch. VI.
For a functionalist viewpoint, see generally Alter (2006).
Beckett (2006), p. 1061.
Hart (2012), p. 117.
Culver and Giudice (2010), p. 4.
Raz (2009a), p. 107. The term ‘legal official’ used by Hart is essentially the same as Raz’ concept of ‘norm-applying institution’, and the terms are used interchangeably here as broadly synonymous with the concept of ‘law-applying authority’.
Hart (2012), p. 214.
D’Aspremont (2011), p. 141.
Ibid. D’Aspremont suggests that this densification is sufficient to consider these judicial institutions as ‘organs’ of the international order. On the general legitimacy attributed to these various international courts and tribunals, studies abound, adopting a broad variety of perspectives. A recent general handbook was published in 2014: Romano, Alter and Shany (2014); Alter (2014); Shany (2014); Webb (2013); Schill (2009); Schulze (2005); and Pauwelyn (2003).
Payandeh (2010), p. 986, citing the United States Supreme Court.
Himma (2001), p. 293.
Raz (2009b), p. 106.
Ibid., p. 108. He continues: ‘[t]he fact that a court may make a binding decision does not mean that it cannot err. It means that its decision is binding even when it is mistaken’ (emphasis added).
Ibid., pp. 109–110.
Often the solution being one of transposing assumptions about the nature of law, from the theory and practice of municipal law, into international society: Beckett (2008), p. 68. On the domestic analogy, see also Koskenniemi (2005), p. 122: ‘[t]he domestic analogy that persuades us—contrary to all evidence—that the international world is like the national so that legal institutions may work there as they do in our European societies’.
D’Aspremont (2014a), p. 134.
Venzke (2013b), p. 402. In other work, von Bogdandy and Venzke have sought to situate this demand for acceptance as an assertion of international public authority, defined as the legal capacity to determine others and to influence their freedom, in shaping their legal or factual situation: see von Bogdandy and Venzke (2012a), p. 18; von Bogdandy and Venzke (2012b), esp. pp. 15–20.
See MacCormick (1986), p. 49.
Beckett (2008), pp. 73–74.
Hart (2012), pp. 116–117.
Ibid.
Hart (1983), p. 277. See also, more generally, Hart (2012), pp. 108–109. D’Aspremont has taken this a step further and gone so far as to suggest that Hart’s ultimate Rule of recognition is in fact derived essentially from the social practice of law-applying authorities: see d’Aspremont (2011), p. 133.
Raz calls this the semantic thesis: Raz (2009a), p. 37. D’Aspremont (2011), p. 5 cites this approvingly, but his reliance on the practice of officials in Hart’s social thesis as determinative is perhaps misplaced. Hart himself emphasises that there were two ‘necessary and sufficient conditions’ for ‘the existence of a legal system’. First, those rules of behaviour which are valid according to the system’s ultimate criteria of validity must be generally obeyed by private citizens. Secondly, a legal system’s rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by the legal officials of the system: Hart (2012), p. 116.
Prosper Weil made the point in relation to customary law in his analysis of North Sea Continental Shelf, ‘[…] la norme coutumière n’a pas pris corps avant que le juge international n’en énonce le contenu; elle existe uniquement grâce à cette énonciation qui lui donne vie et lui confère une existence propre’ (emphasis added): Weil (1987), p. 551.
D’Aspremont (2011), p. 205.
Ibid., p. 213.
A prime example has been the ‘transnational judicial dialogue’ approach favoured by Slaughter (2003), p. 205, where she claims an awareness in the international judiciary that their actions are part of ‘a global community of law dealing with related problems’, and p. 218, concluding that a dialogue between national and international adjudicative bodies ‘may be as close as it is possible to come to a formal global legal system’. Slaughter’s vision of a ‘global community of courts’ is primarily based on horizontal dialogue between domestic courts, primarily based on the persuasive authority of the reasoning invoked in the case law they produce, and the mutual recognition courts accord each other in a self-reinforcing exercise. ‘Vertical’ communication between national and supranational courts would confirm this practice, purportedly strengthening the rule of law and promoting the interests of ‘a particular subset of individuals and groups in transnational society’: see Slaughter (1995a), and Slaughter (1995b), p. 535.
D’Aspremont (2011), p. 202, using the term ‘accessible’.
Tamahana (2001), p. 139.
Ibid., p. 142.
D’Aspremont (2011), p. 141.
Collins (2015), p. 14.
D’Aspremont (2014a), p. 134.
D’Aspremont (2011), p. 60.
Bourdieu (1987), p. 824.
For a brief overview of the process of autopoiesis in sustaining and nourishing a system, see Luhmann (1986), p. 172.
The complex term ‘reification’ is understood here in the manner explained by Marks (2001), p. 112: as ‘the process by which human products come to appear as if they were material things, and then to dominate those who produced them. Thanks to strategies of reification, men and women may cease to recognize the social world as the outcome of human endeavour, and begin to see it as fixed and unchangeable, an object of contemplation rather than a domain of action’.
A distillation, perhaps of the judge-centric account in Ross (1959), p. 34. See also Paul Ricoeur, who decries this strand of positivism as ‘the complicity between the juridical rigidity attached to the idea of a univocal rule and the decisionism that ends up increasing a judge’s discretionary power’. Ricoeur (2000), p. 114.
Beckett (2008), p. 60.
Hart (2012), p. 59 (emphasis added).
See supra, Sect. 4.1.
Marmor (2001b), p. 10.
Gardner (2004), p. 170.
Hart (2012), p. 93.
Bourdieu (1987), p. 817 (emphasis in the original).
Culver and Giudice (2010), p. 20.
Jenks (1953), p. 416.
Schachter (1977-1978), p. 217. For a less laudatory approach to the invisible college, see Kennedy (2001).
Ironically, the same term is used by Koskenniemi to describe a vastly different phenomenon: see Koskenniemi (1989) and the text accompanying n. 20.
Pulkowski (2014), p. 239.
For example, in respect of concepts such as necessity as a circumstance precluding wrongfulness, full protection and security clauses, and the definition of reparations. A detailed analysis of such an ‘integrationist’ approach is found throughout in Baetens (2013).
See Pauwelyn (2001), examining the interpretative practices of the Dispute Settlement Body, its treatment of customary international law, and its emphasis on the WTO Agreement as a self-contained regime within international law.
On this point, see the generally favourable treatment of the ICJ and ILC given to the pronouncements of human rights monitoring bodies and the reasons given, as gathered in Azaria (2020).
Pulkowski (2014), p. 255, though Pulkowski suggests that it is a result that may also be avoided. Cf. d’Aspremont (2011), p. 213, who envisages a more limited social consciousness on the part of law-applying authorities, though he does concede that they seem generally heedful of the need to achieve the overall coherence and consistency of international legal rules.
Pulkowski (2014), p. 276.
Pulkowski (2014), p. 243.
Fish (1980), pp. 338–355.
See Fiss (1982).
Koskenniemi (1989), p. 566.
Haas (1992), p. 3.
Koskenniemi (1989), p. 616.
See, in this respect, Kelsen (1970), p. 355: ‘[t]he interpretation of law by the science of law (jurisprudence) must be sharply distinguished as nonauthentic from the interpretation by legal organs. Jurisprudential interpretation is purely cognitive ascertainment of the meaning of legal norms. In contrast to the interpretation by legal organs, jurisprudential interpretation does not create law’.
It is conceded that the process of interpretation, in the hermeneutic sense of ascribing meaning or content to a rule, is distinct in its teleology from the process of application, if the latter is understood as a process of determining the consequences or effects of that rule: Schwarzenberger (1968), p. 7.
Kelsen (1970), pp. 353–354.
But cf. Coleman (2001), p. 115: ‘Acceptance from the internal point of view by officials is a conceptual requirement of the possibility of law; acceptance from the internal point of view by a substantial proportion of the populace is neither a conceptual nor an efficacy requirement’.
A point raised in the International Law Commission, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law—Report of the Study Group of the International Law Commission’, UN Doc. A/CN.4/L.682 (13 April 2006), as corrected UN Doc. A/CN.4/L.682/Corr.1 (11 August 2006) (finalized by Martti Koskenniemi), para. 468.
Jouannet (2004), p. 946: the judge assumes ‘une fonction d’acteur à part entière du système, où il prend part au débat sur les valeurs les plus fondamentales de ce système, où il est vecteur et créateur reconnu d’une certaine hiérarchie minimale, de la cohérence et de la stabilité du système juridique’.
Stone (1954), p. 364.
Koskenniemi (1989), p. 597, suggesting that the entire process of hermeneutics is a ‘universalisation project, a set of hegemonic moves that make particular arguments or preferences seem something other than particular because they seem, for example “coherent” with the “principles” of the legal system’. A version of this argument was also advanced in Falk (1967–1968), pp. 324-325: ‘[s]elf-interested interpretation presented as authoritative or objective interpretation has been an essential ingredient of all patterns of domination, veiling oppressive and exploitative relationships in the guise of that which is “natural” or “true” or “necessary”’.
References
Alter KJ (2006) Delegation to international courts and the limits of re-contracting political power. In: Hawkins DG, Lake DA, Nielson DL, Tierney MJ (eds) Delegation and agency in international organizations. Cambridge University Press, Cambridge, pp 312–338
Alter KJ (2014) The new terrain of international law: courts, politics, rights. Princeton University Press, Princeton
Arendt H (2006) Between past and future: eight exercises in political thought. Penguin Books, London
Azaria D (2020) The legal significance of expert treaty bodies pronouncements for the purpose of the interpretation of treaties. Int Community Law Rev 22:33–60
Baetens F (ed) (2013) Investment law within international law: integrationist perspectives. Cambridge University Press, Cambridge
Barnett M, Finnemore M (2004) Rules for the world: international organizations in global politics. Cornell University Press, Ithaca. https://doi.org/10.7591/9780801465161
Beckett J (2005) Countering uncertainty and ending up/down arguments: prolegomena to a response to NAIL. Eur J Int Law 16:213–238
Beckett J (2006) A rebel without a cause? Martti Koskenniemi and the critical legal project. German Law J 7:1045–1088
Beckett J (2008) The Hartian tradition in international law. J Jurisprud 1:51–83
Bianchi A (2009) Looking ahead: international law’s main challenges. In: Armstrong D (ed) Routledge handbook of international law. Routledge, London, pp 392–409. https://doi.org/10.4324/9780203884621.ch27
Bianchi A (2015) The game of interpretation in international law: the players, the cards, and why the game is worth the candle. In: Bianchi A, Peat D, Windsor M (eds) Interpretation in international law. Oxford University Press, Oxford, pp 34–58
Bourdieu P (1987) The force of law: toward a sociology of the juridical field. Hastings Law J 38:814–853
Charney JI (1999) The impact on the international legal system of the growth of international courts and tribunals. NY Univ J Int Law Policy 33:697–708
Coleman J (2001) Incorporationism, conventionality, and the practical difference thesis. In: Coleman J (ed) Hart’s postscript: essays on the postscript of the concept of law. Oxford University Press, Oxford, pp 99–147. https://doi.org/10.1093/acprof:oso/9780198299080.003.0004
Collins R (2015) Law-applying institutions in international law: the problematic concept of the international legal official. Transnl Leg Theory (forthcoming; paper on file with author)
Cover R (1983) Nomos and narrative. Harv Law Rev 97:4–68
Culver K, Giudice M (2010) Legality’s borders: an essay in general jurisprudence. Oxford University Press, Oxford. https://doi.org/10.1093/acprof:oso/9780195370751.001.0001
d’Aspremont J (2011) Formalism and the sources of international law: a theory of the ascertainment of legal sources. Oxford University Press, Oxford. https://doi.org/10.1093/acprof:oso/9780199696314.001.0001
d’Aspremont J (2014a) Herbert Hart in today’s international legal scholarship. In: Kammerhofer J, d’Aspremont J (eds) International legal positivism in a post-modern world. Cambridge University Press, Cambridge, pp 114–150
d’Aspremont J (2014b) The idea of ‘rules’ in the sources of international law. Br Yearb Int Law 84:103–130. https://doi.org/10.1093/bybil/bru025
Dupuy PM (1989) Le juge et la règle générale. Revue Générale de Droit International Public 93:569–598
Dupuy PM (2002) L’unité de l’ordre juridique international. Recueil des Cours 297:9–489. https://doi.org/10.1163/ej.9789041118592.009-489
Dworkin R (1978) Taking rights seriously. Harvard University Press, Cambridge
Falk R (1967) On treaty interpretation and the New Haven approach: achievements and prospects. Va J Int Law 8:323–355
Fish S (1980) Is there a text in this class? The authority of interpretive communities. Harvard University Press, Cambridge
Fiss (1982) Objectivity and interpretation. Stanf Law Rev 34:739–763. https://doi.org/10.2307/1228384
Fitzmaurice GG (1951) The law and procedure of the International Court of Justice: treaty interpretation. Br Yearb Int Law 28:1–28
Fitzmaurice GG (1957) The law and procedure of the International Court of Justice, 1951–1954: treaty interpretation and other treaty points. Br Yearb Int Law 33:203–293
Franck T (1990) The power of legitimacy among nations. Oxford University Press, Oxford
Gadamer H-G (1975) Truth and method. Continuum Publishing Group, London (1975, 1989 reissue)
Gardner J (1988) Concerning permissive sources and gaps. Oxf J Leg Stud 8:457–461. https://doi.org/10.1093/ojls/8.3.457
Gardner J (2004) The legality of law. Ratio Juris 17:168–181. https://doi.org/10.1111/j.1467-9337.2004.00262.x
Glenn HP (1987) Persuasive authority. McGill Law J 32:261–298
Green L (2010) Legal obligation and authority. In: Zalta EN (ed) The Stanford encyclopedia of philosophy. Stanford University, Stanford. https://plato.stanford.edu/archives/win2012/entries/legal-obligation/. Accessed 4 Jul 2022
Haas P (1992) Introduction: epistemic communities and international policy coordination. Int Organ 46:1–35
Hart HLA (1982) Commands and authoritative legal reasons. In: Hart HLA (ed) Essays on Bentham: studies in jurisprudence and political theory. Oxford University Press, Oxford, pp 243–268
Hart HLA (1983) Jehring’s heaven of concepts and modern analytical jurisprudence. In: Hart HLA (ed) Essays in jurisprudence and philosophy. Oxford University Press, Oxford, pp 265–277. https://doi.org/10.1093/acprof:oso/9780198253884.001.0001
Hart HLA (2012) The concept of law. Oxford University Press, Oxford. https://doi.org/10.1093/he/9780199644704.001.0001
Helfer L, Slaughter AM (1997) Toward a theory of effective supranational adjudication. Yale Law J 107:273–391
Hernández G (2014a) The International Court of Justice and the judicial function. Oxford University Press, Oxford. https://doi.org/10.1093/acprof:oso/9780199646630.001.0001
Hernández G (2014b) Interpretation. In: Kammerhofer J, d’Aspremont J (eds) International legal positivism in a post-modern world. Cambridge University Press, Cambridge, pp 317–348
Himma KE (2001) Law’s claim of legitimate authority. In: Coleman J (ed) Hart’s postscript: essays on the postscript of the concept of law. Oxford University Press, Oxford, pp 271–310
Jacobs F (2008) Judicial dialogue and the cross-fertilization of legal system: the European Court of Human Rights. Tex Int Law J 38:547–556
Jenks CW (1953) The conflict of law-making treaties. Br Yearb Int Law 30:401–453
Jouannet E (2004) Le juge international face aux problèmes d’incohérence et d’instabilité du droit international. Revue Générale de Droit International Public 108:929–948
Kammerhofer J (2011) Uncertainty in international law: a Kelsenian perspective. Routledge, London. https://doi.org/10.4324/9780203847213
Kelsen H (1970) Pure theory of law, 2nd edn. University of California Press, Berkeley
Kennedy D (2001) The politics of the invisible college: international governance and the politics of expertise. Eur Hum Rights Law Rev 5:463–497
Kessler O, Werner WG (2013) Expertise, uncertainty and international law: a study of the Tallinn Manual on cyberwarfare. Leiden Int Law 26:793–810
Klabbers J (1996) The concept of treaty in international Law. Kluwer International, The Hague
Koch C (2004) Judicial dialogue for legal multiculturalism. Mich J Int Law 25:879–902
Koskenniemi M (1989) From apology to utopia. The structure of international legal argument. Cambridge University Press, Cambridge. https://doi.org/10.1017/CBO9780511493713 (1989, reissued 2005)
Koskenniemi M (2005) International law in Europe: between tradition and renewal. Eur J Int Law 16:113–124
Koskenniemi M (2018) What is international law for. In: Evans M (ed) International law, 5th edn. Oxford University Press, Oxford, pp 28–50. https://doi.org/10.1093/he/9780198791836.001.0001
Lamond G (2010) Persuasive authority in the law. Harv Rev Philos 17:16–35. https://doi.org/10.5840/harvardreview20101712
Lauterpacht H (1949) Restrictive interpretation and the principle of effectiveness in the interpretation of treaties. Br Yearb Int Law 26:48–85
Luhmann N (1986) The autopoiesis of social systems. In: Geyer F, van der Zouwen J (eds) Sociocybernetic paradoxes: observation, control and evolution of self-steering systems. Sage Publications, London, pp 172–192
MacCormick N (1986) Law as institutional fact. In: MacCormick N, Weinberger O (eds) The institutional theory of law: new approaches to legal positivism. Springer, Dordrecht, pp 49–76. https://doi.org/10.1007/978-94-015-7727-4
Marks S (2001) Big brother is bleeping us—with the message that ideology doesn’t matter. Eur J Int Law 12:109–123
Marks S (2003) The riddle of all constitutions: international law, democracy, and the critique of ideology. Oxford University Press, Oxford. https://doi.org/10.1093/acprof:oso/9780199264131.001.0001
Marmor A (2001a) Legal conventionalism. In: Coleman J (ed) Hart’s postscript: essays on the postscript of the concept of law. Oxford University Press, Oxford, pp 193–217. https://doi.org/10.1093/acprof:oso/9780198299080.003.0006
Marmor A (2001b) Positive law and objective values. Oxford University Press, Oxford. https://doi.org/10.1093/acprof:oso/9780198268970.001.0001
McLachlan C (2005) The principle of systemic integration and Article 31(3)(c) of the Vienna Convention. Int Comp Law Q 54:279–320
McNair A (1961) The law of treaties, 2nd edn. Clarendon Press, Oxford
Orakhelashvili A (2008) The interpretation of acts and rules in public international law. Oxford University Press, Oxford
Pauwelyn J (2001) The role of public international law in the WTO: how far can we go? Am J Int Law 95:535–578
Pauwelyn J (2003) Conflict of norms in public international law: how WTO law relates to other norms of public international law. Cambridge University Press, Cambridge
Payandeh M (2010) The concept of international law in the jurisprudence of HLA. Hart Eur J Int Law 21:967–995
Peat D (2022) Disciplining rules? Compliance, the rules of interpretation, and the evaluative dimension of Articles 31 and 32 of the VCLT. Neth Int Law Rev. https://doi.org/10.1007/s40802-022-00220-2 (in this issue)
Pulkowski D (2014) The law and politics of international regime conflict. Oxford University Press, Oxford. https://doi.org/10.1093/acprof:oso/9780199689330.001.0001
Raz J (1975) The institutional nature of law. Modern Law Rev 38:489–503
Raz J (1983) The authority of law: essays on law and morality. Clarendon Press, Oxford. https://doi.org/10.1093/acprof:oso/9780198253457.003.0006
Raz J (1986) The morality of freedom. Clarendon Press, Oxford. https://doi.org/10.1093/0198248075.001.0001
Raz J (2009a) Authority and interpretation: on the theory of law and practical reason. Oxford University Press, Oxford
Raz J (2009b) Between authority and interpretation. Oxford University Press, Oxford
Ricoeur P (2000) The just. University of Chicago Press, Chicago
Romano CPR (1999) The proliferation of international judicial bodies: the pieces of the puzzle. NY Univ J Int Law Policy 31:709–752
Romano CPR, Alter KJ, Shany Y (2014) The Oxford handbook of international adjudication. Oxford University Press, Oxford
Ross A (1959) On law and justice. University of California Press, Berkeley
Ruggie J (1975) International responses to technology. Int Organ 29:557–583
Schachter O (1977) The invisible college of international lawyers. Northwest Univ Law Rev 72:217–226
Schauer F (2008) Authority and authorities. Va Law Rev 94:1931–1961
Schill S (2009) The multilateralization of international investment law. Cambridge University Press, Cambridge
Schmitt M, Vihul L (2017) Tallinn Manual 2.0 on the international law applicable to cyber operations. Cambridge University Press, Cambridge
Schulze C (2005) Compliance with decisions of the International Court of Justice. Oxford University Press, Oxford
Schwarzenberger G (1968) Myths and realities of treaties of treaty interpretation: Articles 27–29 of the Vienna Draft Convention on the Law of Treaties. Va J Int Law 9:1–19
Sciariffa S (2009) On content-independent reasons: it’s not in the name. Law Philos 28:233–260
Shany Y (2014) Assessing the effectiveness of international courts. Oxford University Press, Oxford
Shapiro S (2002) Authority. In: Coleman J, Shapiro S (eds) The Oxford handbook of jurisprudence and philosophy of law. Oxford University Press, Oxford, pp 382–439
Shapiro S (2011) Legality. Harvard University Press, Cambridge. https://doi.org/10.2307/j.ctvjnrsd5
Simpson AWB (1986) The common law and legal theory. In: Simpson AWB (ed) Oxford essays in jurisprudence, second Series. Oxford University Press, Oxford, pp 77–99
Slaughter AM (1995a) A typology of transjudicial communication. Univ Richmond Law Rev 29:99–138
Slaughter AM (1995b) International law in a world of liberal states. Eur J Int Law 6:503–538. https://doi.org/10.1093/oxfordjournals.ejil.a035934
Slaughter AM (2003) A global community of courts. Harv Int Law J 44:191–219
Stone J (1954) Fictional elements in treaty interpretation: a study in the international judicial process. Sydney Law Rev 1:344–368
Tamanaha B (2001) A general jurisprudence of law and society. Oxford University Press, Oxford. https://doi.org/10.1093/acprof:oso/9780199244676.001.0001
Venzke I (2012) The role of international courts as interpreters and developers of the law: working out the jurisgenerative practice of interpretation. Loyola of Los Angeles Int Comp Law Rev 34:99–131
Venzke I (2013a) Between power and persuasion: on international institutions’ authority in making law. Transnatl Leg Theory 4:354–373
Venzke I (2013b) Understanding the authority of international courts and tribunals: on delegation and discursive construction. Theor Inq Law 14:381–409
von Bogdandy A, Venzke I (2012a) Beyond dispute: international judicial institutions as lawmakers. In: von Bogdandy A, Venzke I (eds) International judicial law making: on public authority and democratic legitimation in global governance. Springer, Heidelberg, pp 3–33. https://doi.org/10.1007/978-3-642-29587-4
von Bogdandy A, Venzke I (2012b) In whose name? An investigation of international courts public authority and its democratic justification. Eur J Int Law 23:7–41
Webb P (2013) International judicial integration and fragmentation. Oxford University Press, Oxford
Weil P (1987) À propos du droit coutumier en matière de délimitation maritime. Le droit international à l’heure de sa codification: Études en l’honneur de Roberto Ago, vol II. Giuffre Editore, Milan, pp 535–554
Weinrib E (1997) Legal formalism, on the immanent rationality of law. Yale Law J 97:949–1016
Acknowledgements
The author is grateful for the feedback and interactions with colleagues during the virtual seminar organised in June 2021 by Panos Merkouris and Sotirios Lekkas. Equally, the paper has benefited from comments and feedback from Jean d’Aspremont, Daniel Peat and Antoine de Spiegeleir, and the editing assistance of Pauline Janssens, to whom the author is much obliged.
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Hernández, G. Law’s Determinability: Indeterminacy, Interpretative Authority, and the International Legal System. Neth Int Law Rev 69, 191–219 (2022). https://doi.org/10.1007/s40802-022-00222-0
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DOI: https://doi.org/10.1007/s40802-022-00222-0