Melbourne Law School - Theses
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ItemThe interpretation of the use of force by international legal advisers( 2020)What do international legal advisers think about when they think about the interpretation of the use of force? For the most part, these discussions have been canvassed in terms of the application of a rule (i.e., Article 31 of the Vienna Convention on the Law of Treaties or Article 38 of the ICJ Statute), but little attention has been paid to interpretation as a philosophical enterprise (i.e. philosophical hermeneutics). Even though hermeneutic scholarship is not commonly cited in international legal theory, some work reflects many of the same sensibilities. For example, much of the contemporary scholarship on the role of history in international law has shown similar movements to the hermeneutical tradition that flourished in Germany in the late eighteenth century, particularly on the importance of historiographical methodology. In addition, interpretive philosophy challenges some epistemic predicates upon which much of the existing, mainstream legal theory on the use of force is built. Some traditions within the world of interpretation highlight that there are alternatives to our way of conceiving reality – and our access to it – as a subject-object mediated relationship. In this context, I discuss how recasting international law as an experience rather than a discipline can articulate some of the possibilities overshadowed by existing discourses. This raises some serious objections to the way we use the past to justify recourse to the use of violence and brings back the political stakes to the argumentative arsenal that the legal adviser has at her disposal. Although the result is a seemingly unfettered argumentative freedom, I argue that the perception of unrestrained rules to guide these interpretive endeavours can be mitigated by the role of disciplinary tradition. By challenging historiographical methods and epistemic predicates, interpretive philosophy further highlights the legal adviser’s uniquely existential position. This means that the situation of advising – the existential moment where the adviser fuses her own horizon of expectations with that object of interpretation, and thereby engages in the experience of international law – essentially incorporates the interpreter’s normativity. Although this subjectivity of interpretation is not new to legal theory, its treatment in interpretive philosophy can provide some insight into the theory of action of a legal adviser when confronting a situation of the use of force. More than insisting on the invasion of bias into decision-making, I argue that prejudice is not only part of any interpretive engagement but one of the most exciting hermeneutic opportunities. Finally, I discuss how the existing expressions of hermeneutic sensibilities in international law as related to history, epistemology, and situatedness can challenge some mainstream narratives on the use of force in international law. By casting legal discourse related to the use of force in international law in the post 9/11 world in terms of its interpretive distortions, interpretive philosophy provides a way to conceive the role of the legal adviser as both critical and normative.