Practice theory and change in international law: theorizing the development of legal meaning through the interpretive practices of international criminal courts

Nora Stappert

doi:10.1017/s1752971919000150

Abstract

AbstractThe question of change has emerged as one of the main conceptual and empirical challenges for International Relations' practice turn. In the context of international law, such a challenge is brought into particularly stark relief due to the significant development of legal meaning through more informal, interpretive avenues, including through the judgments of international courts. This paper develops a framework for theorizing how interpretive legal practices generate normative content change in international law. Specifically, it uses the example of the development of international criminal law through the decisions of international criminal courts to analyze how legal interpretation can lead to normative change in practice. Drawing on interviews conducted with judges and legal officers at the International Criminal Court (ICC), the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL), I analyze how a community of legal practice centered around these courts was able to construct and alter legal meaning in international criminal law, and how such a potential for change was curbed by understandings of the interpretive process and the role of international courts dominant among international lawyers.

Highlights

In international law, the tension between legal provisions as indeterminate on the one hand, and as stabilizing international affairs on the other is an almost classic paradox
This paper proposed an alternative way of theorizing change in the practices of international law, and, to theoretically account for the development of legal meaning through interpretation
I drew on Schindler and Wille’s (2015) account of change in practice as rooted in uncertainty about the past to enrich the concept of interpretive communities

Summary

Interpretive practices and change in international criminal law

At the time the ICTY was established, the UN Secretary General had tasked the court to rely on ‘existing international humanitarian law,’ and to refrain from judicial law-making. In the practice of international and hybrid criminal courts, such a distinction was difficult to maintain. To understand interpretive change in international law, the concept of interpretive communities is especially useful as it highlights how new interpretations are assessed as valid or not within a community of international lawyers (Johnstone 2011, 33–41; D’Aspremont 2015, 18, 22) It emphasizes that, while there might be considerable room to propose different legal interpretations, professional assumptions shared among international lawyers about the process of legal interpretation – such as the assumption that a court’s interpretation should generally be consistent with previous case law – imposes limits on which legal views are accepted (see Johnstone 2011, 36). Given the prevalence of views on judicial interpretation as (merely) filling ‘gaps,’ within the interpretive community, the expectation of judicial constraint curbs the potential for change through international judicial law-making in practice

Three reasons for legal change through interpretative practices

Types of legal provisions that allow for greater latitude

Creativity as inherent to the legal reasoning process

Conclusions