Panel 4.1 / The Relevance of Hermeneutics and Interpretation in CIL

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4.1.1 / Panos Merkouris
The Viability of and Need for Interpretation of Customary International Law

Whereas in the application of treaties the process of interpretation is one that always yields a solution, with respect to CIL these rules of interpretation have not been examined. What Pratchett and Gaiman expressed, albeit in a different context, in their darkly humorous book Good Omens is a very apt analogy. By not knowing what the rules that govern the interpretation of CIL are, we end up playing an ‘ineffable game of [the judge’s/interpreter’s] own devising, which might be compared, from the perspective of any of the other players, to being involved in an obscure and complex version of poker in a pitch-dark room, with blank cards, for infinite stakes, with a Dealer who won’t tell you the rules, and who smiles all the time’.

This leads to one of the following two paradoxical scenarios. Either CIL needs to be induced each and every time, by reference to State practice and opinio juris (but this is extremely problematic as it fails to take into account the continued existence, development and manifestation of CIL rules); or, even worse, CIL is asserted by international judges. But assertion, essentially means that international judges create law: they become law-makers and exercise a power to legislate (pouvoir de légiférer) that goes clearly against any notion of separation of powers that is so crucial to the structure of any legal system. Both of these scenarios are untenable, so evidently there is a critical gap in the study of CIL and in understanding how CIL can be applied in individual cases once it has been formed. In the case of treaties, this is done through the intermediary of interpretation.

This paper will have a two-pronged approach. Firstly, demonstrate that the arguments against the interpretation of customary international law do not hold up to scrutiny. These arguments can be grouped into three larger sets:

  • It is an axiom of international law that CIL cannot be interpreted;
  • CIL is not open to interpretation due to its unwritten nature;
  • CIL is not open to interpretation because no court has ever undertaken such a task.

These arguments upon closer examination will be shown to not only be demonstrably based on false assumptions but also rejected in modern judicial practice.

The second part of this paper will elaborate on why interpretation of CIL is not only logically and methodologically inevitable but practically also a desired option for a plethora of reasons. Indicatively:

  • The lack of an in-depth discussion on the rules of interpretation of CIL, leaves the manner in which CIL is being identified and its content determined couched in mystery; this raises grave concerns as to the proper function of this source of international law, and even more perilously as to the predictability/foreseeability of the international legal system.
  • Interpretation ensures the flexibility and relevance of CIL rules,
  • CIL interpretation may offer a way to address many of the concerns and criticisms that have been launched against the rules that govern the emergence of CIL.

Through this analysis, the paper will demonstrate that the interpretation of CIL is not only something that is actually happening, but also a process that is inherently necessary for the effectiveness of any legal rule, irrespective of whether it is a conventional or customary one.

4.1.2 / John R Morss
The Interpretation of Customary International Law: Some Questions

The case has been made for a de facto interpretive scheme applicable to Customary International Law [CIL] operating in parallel with the Vienna Convention on the Law of Treaties 1969 [VCLT]. What might thus be called a “VCLT-CIL” would in effect shadow VCLT just as CIL has been found, on occasion, to shadow conventional agreements, as found to apply to the UN Charter’s Art 2(4) prohibition of the international use of force by the majority in USA v Nicaragua.

The former proposal – for CIL interpretation – is at least as plausible as the latter proposal, and does not rely on it. It arises from a scrutiny of the procedure of such international tribunals as the ICJ as they grapple with the broad spectrum of internationally recognised sources of law in the context of disputes or of Advisory Opinions. This contribution hopes to engage sufficiently with Merkouris’ proposal – suspending its author’s disbelief in the conceptual coherence of CIL – so as to articulate some critical questions about how interpretation functions in these tribunals. For there is no question that CIL plays an important role in decisions and opinions from the ICJ, somewhat irrespective of the scepticism of some commentators; the status of Art 38 (1) (b) is after all, expressly higher than the status of Art 38 (1)(d). The question is what role interpretation of CIL plays.

The case could be made that the different genres of CIL manifest quite distinct relationships with interpretation. What might be called ‘empirical’ CIL – as exemplified, at least in theory, by the notorious ‘two-state’ CIL entertained by the ICJ in the Asylum Case but also by the unremarkable regional CIL of adjacent coastal states posited in the North Sea Continental Shelf – may be said to call for discernment and evaluation, and perhaps for application, but not for interpretation.

At one of the other several extremes of the mapped landscape of CIL, norms of the socalled peremptory class may again sidestep interpretation. As well as the contestedness of such norms jus cogens in terms of evaluation, there are other reasons for putting them to one side in the present analysis. Importantly, the claimed universality of such norms is not a reason for their exclusion. For the class of CIL most interesting for present purposes, contains CIL that are themselves in a sense universal. These are “general CIL … binding on all States.” Such ‘general’ CIL would seem to include the comity/reciprocity based understandings around acts of state, diplomatic protection and the immunity of Heads of State, and state responsibility: understandings that might be said to be inherent to statehood itself, yet inherent in substantive ways (here contrast the procedural role played by pacta sunt servanda). Interpretation is surely of the essence of such CIL. If these distinctions among CIL are valid, then different genres of CIL are as different from each other as are CIL from conventions: a diversity obscured by the wording of Art 38. (In contrast, like happy families, treaties are perhaps basically all alike.)

4.1.3 / Orfeas Chasapis-Tassinis
Interpreting State Practice and Interpreting the Rules of Customary International Law: Practical Relevance and Theoretical Reflection

While theoretical reflection in the field of customary international law has been prolific on issues pertaining to the formation of new rules with problems regarding the types and threshold of evidence for the identification of new rules lying at the centre of attention questions of how to interpret state practice itself and how to distinguish this exercise from that of interpreting the customary rules have remained largely underexplored. Significant conceptual, and ultimately analytical and practical, problems derive from this neglect. Most importantly for practice, different constructions of a customary rule and/or interpretations of state practice may lead to diametrically opposing conclusions about the scope ratione personae and ratione materiae of the rule itself. This is the result of the remarkable plasticity that characterizes customary international law, due to its nature as an unwritten form of law. This plasticity can be understood in at least two ways. First, a rule of customary international law may yield itself to different constructions using the same building blocks, based on what one assumes to be the content of the rule to begin with. Second, the building blocks themselves, ie instances of state practice may not be as solid as frequently assumed: they are themselves open to interpretation, and thus reconfiguration. The theoretical ambiguity around this plasticity, although not always flagged as such, underpins key debates in international law. For example, one can understand in these terms the protracted disagreement over whether international organizations should be dealt with as states for the purposes of applying to them the same rules of customary international law. Similarly, scholars writing on selfdetermination are in reality often arguing over the real meaning of state practice: should we understand existing state practice as articulating a right against colonial rule or against despotic and oppressive rule in general? Why should state practice be appraised differently based on whether it occulted in a colonial context or not? Comparable problems often present those writing on humanitarian intervention: should practice when the SC was deadlocked due to the veto of a P-5 member be lumped together with those were there was no such deadlock? And what does this mean for the ultimate construction of the rule’s scope ratione materiae? All in all, it seems that these questions have lacked sustained theoretical treatment, a gap that this paper seeks to address. More specifically, this paper tackles this plasticity re-describing key debates within these three areas of international law (application of customary norms governing state conduct to non-state actors, self-determination, humanitarian intervention) evaluating attempts to expand, contract, or simply reimagine the boundaries of the (assumed) scope ratione personae or ratione materiae of these rules, as well as exploring the permissible rationales for doing so. In conclusion, this paper, by closely examining international legal arguments relating to three topical areas, sheds new light on a largely neglected issue that goes to the heart of most arguments about how to construct, and sometimes reconstruct, the rules of customary international law.

4.1.4 / Fabian Augusto Cárdenas Castañeda
Interpreting CIL as an Argumentative Construct

Hermeneutics in law is meant to be the act of giving meaning to a certain norm with a view to make it applicable in a particular situation. Regarding the law of the treaties, the allocation of meaning is closely related to the written text describing a norm. However, and contrary to what traditional perspectives sustain, I agree that when it comes to the interpretation of customary international law, it is not feasible to separate the intellectual process of interpretation with those of content determination and law ascertainment of the source. Therefore, when a customary norm is being interpreted, its content is also being determined, while it is still conceivable to consider particular law ascertainment criteria. All of this is possible when interpretation concerns a malleable and still mysterious source like CIL. The foregoing processes, forerun by the act of interpretation, are intellectual in nature, argumentatively construed by the community of international lawyers. This means that the very existence of objective rules of interpretation for CIL is a matter to be disputed.