International law as a common language across spheres of authority?

Hannah Birkenkötter

doi:10.1017/s2045381720000155

Abstract

AbstractWhen actors express conflicting views about the validity or scope of norms or rules in relation to other norms or rules in the international sphere, they often do so in the language of international law. This contribution argues that international law’s hermeneutic acts as a common language that cuts across spheres of authority and can thus serve as a conflict management tool for interface conflicts. Often, this entails resorting to an international court. While acknowledging that courts cannot provide permanent solutions to the underlying political conflict, I submit that court proceedings are interesting objects of study that promote our understanding of how international legal argument operates as a conflict management device. I distinguish three dimensions of common legal form, using the well-knownEC–Hormonescase as illustration: a procedural, argumentative, and substantive dimension. While previous scholarship has often focused exclusively on the substantive dimension, I argue that the other two dimensions are equally important. In concluding, I reflect on a possible explanation as to why actors are disposed to resort to international legal argument even if this is unlikely to result in a final solution: there is a specific authority claim attached to international law qua law.

Highlights

Under which conditions do interface conflicts become manifest, and, once manifest, how are they managed, and what is the effect of such management efforts? These are the main questions addressed in this Special Issue (Introduction to this Special Issue)
When actors express conflicting views about the validity or scope of norms or rules in relation to other norms or rules in the international sphere, they often do so in the language of international law. This contribution argues that international law’s hermeneutic acts as a common language that cuts across spheres of authority and can serve as a conflict management tool for interface conflicts
I reflect on a possible explanation as to why actors are disposed to resort to international legal argument even if this is unlikely to result in a final solution: there is a specific authority claim attached to international law qua law

Summary

Introduction

Under which conditions do interface conflicts become manifest, and, once manifest, how are they managed, and what is the effect of such management efforts? These are the main questions addressed in this Special Issue (Introduction to this Special Issue). While such bodies are often (though not always) anchored in one particular sphere of authority, the solutions they propose radiate beyond the boundaries of each sphere. The argument is explanatory in nature and seeks to establish how and why international law functions as a conflict management tool across spheres of authorities To this end, I introduce three dimensions of common legal form: the procedural dimension, the argumentative dimension and the substantive, or ‘solutions’ dimension. Law qua form posits a claim to universality, but one that is substantively empty

How does international law relate to spheres of authority?

International law as a conflict management mechanism