The Discursive Construction of Facts in International Adjudication

Abstract

Abstract This article challenges the view according to which adjudicators’ ‘descriptions’ of the facts of a case are carbon copies of a reality that is independent of them. It presents a critical examination of how international judicial discourse constructs a dispute’s factual background and focuses on the question of knowing what judges do when they lay down the facts of the case. Drawing on pragmatist philosophy, this article argues that, more than a mere description, statements on the factual background of a dispute are an endorsement or commitment to a given claim. It does so through an analysis of different ways in which facts are constructed in international adjudication, showing how facts are theory-laden, always based on non-negligible selections and distinctions, and rely on a given narrative for their cogency.