The Impact of Normative Integration on the Allocation of Interpretative Authority Between States and International Courts

Abstract

This paper examines how the aim for normative coherence in international law recalibrates the allocation of interpretative authority between States and international courts in favour of the latter. Having defined the concept of normative conflicts, which putatively challenge the normative coherence of international law, the paper identifies the avenue through which such normative conflicts reach an international court established under a compromissory clause, namely as a tension between the rules monitored by the international court and some other, ‘extrinsic’ rule. As is then demonstrated, the situation of normative conflict before international courts partakes of the broader question concerning the use of extrinsic rules in international adjudication. Under this context, international courts normally exercise a great degree of latitude in relation to the invocation of such rules, which in turn is coupled with deference (or the exercise of minimal interpretative authority) in relation to the content of such rules. Nonetheless, the aim for normative coherence in international law reverses this relationship in the context of normative conflicts: as the latitude in the invocation (or in the consideration) of extrinsic and potentially conflicting rules is reduced, the interpretative authority over their content is increased. By reproducing and readdressing the normative conflict originally faced by States, international courts assume the interpretative authority enjoyed by the States, including the authority over the interpretation of the extrinsic rule. Consequently, as the paper argues, a strong commitment to normative coherence entails an assertion of interpretative authority on the part of the international courts over such rules, at the expense of the relevant authority hitherto lying with the individual State parties forming the international court’s constituency.