The Existential Function of Interpretation in International Law

Abstract

For most international lawyers, involves acts giving meaning to a particular legal rule. Interpretative studies center largely on questions of method and technique – by what process should (or must) meaning be given to an international legal rule and how does a given meaning accord with the interpretative method employed. In recent years, increasing methodological awareness of interpretative theory has broadened – or, in the case of critical scholarship, challenged – the capacity of to give meaning to international law. Notwithstanding the value in focusing on interpretative methods and techniques, the concept of they produce remains incomplete. International law’s interpretative processes are like an iceberg – the meaning arrived at by an interpreter is not simply a of the method and technique employed (the visible tip) but rests on an array of earlier choices about what exists to be interpreted in the first place (the iceberg’s hidden, critical mass). A familiar example involves the question of what evidence counts as State for purposes of identifying customary international law. Interpreters who only count what States do may generate different content for a claimed rule than those who also consider what States say about the rule, even holding constant the method and technique employed. Similar questions arise throughout the international legal order. Before a treaty can be interpreted according to the 1969 Vienna Convention, for example, the interpreter must conclude the treaty actually exists. Indeed, interpretative choices lie at the core of international law’s sources doctrine, since what qualifies as international law (or not) can privilege or foreclose specific interpretative methods and outcomes. This paper seeks to uncover the existential function of in international law. It explains how all interpretations have effects as they create, confirm, or deny the existence of the subject of interpretation. At the same time, I identify a particular structure of interpretative argument – what I call existential interpretation – by which interpreters ascertain the existence of their subjects. I review examples of this phenomenon in questions about the existence of interpretative authority, evidence, international law, and its sources. Existential interpretations and the functions they serve have significant implications for international legal (a) discourse, (b) doctrine, and (c) theories of international law. Existential interpretations delineate the boundaries for interpretative discourse, narrowing it in cases of consensus on the existence of the interpreted subject, and broadening it in cases of dispute. Where interpretative resolutions of questions are possible, they may impact the content of international law doctrine, either directly or indirectly. And, where resolution is not possible, interpretations may operate as proxies for theoretical disagreement about the nature or purpose of international law (e.g., positivists may insist interpreters exclude from their toolbox the same soft law sources that naturalists insist require effectiveness as a matter of right). The paper concludes with a call for further study of given its importance to practice as well as its potential to provide a new lens for mapping the unity and fragmentation of the international legal order itself.