Abstract
The paper discusses uncertainty in international law from the perspective of its indeterminate rules against an often held view that such rules are bad news for international law. First, it shows that indeterminate rules are not a pathology, but inevitable in international law due to the diversity of states, their different interests, as well as complexities of some of the issues those norms attempt to regulate. Second, the paper claims that there is an upside in indeterminate rules if international law is conceptualized through its argumentative side. These values are explained through concrete examples of indeterminate provisions from the Treaty on the Non-proliferation of Nuclear Weapons and the UNSC Resolution 2249, a classical example of "constructively ambiguous" text. Relying on the works of Waldron and Hakimi, the paper explains how indeterminate rules accommodate disagreements, and consequently provide at least minimal regulation of certain contested issues, sustain international community, and, moreover, demonstrate how international law operates.
Highlights
This paper will discuss uncertainty in international law, from the perspective of the uncertainty of the content of some its rules
These values are explained through concrete examples of indeterminate provisions from the Treaty on the Non-proliferation of Nuclear Weapons and the UN Security Council (UNSC) Resolution 2249, a classical example of “constructively ambiguous” text
How can we find any value in such indeterminate rules? To be able to do that an observer needs to be able to conceptualize the law beyond the body of rules
Summary
This paper will discuss uncertainty in international law, from the perspective of the uncertainty of the content of some its rules. Law “frames, sponsors, and institutionalizes” the culture of argument.[19] Indeterminate rules cultivate this culture, as they accommodate disagreements stemming from different interests of states or complexity of the issue they want to regulate They open more space for debate, i.e., conflicting arguments on the meaning of a specific rule, which in turn can provide an insight into the values laying in the core of a rule.[20] arguments are valuable,[21] as they are an integral element of law’s operation,[22] what in international law, as I will explain, provides multidimensional benefits. Indeterminate Rules: Inescapable Uncertainty of the Content of Some Rules of International Law
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