Uncertainty in International Law

A Kelsenian Perspective

Jörg Kammerhofer

• Publisher: Routledge
• Year: 2010
• ISBN:
  9781136939716
• Edition: 1
• Topic: Droit
• Subtopic: Théorie et pratique du droit

Re-engaging with the Pure Theory of Law developed by Hans Kelsen and the other members of the Viennese School of Jurisprudence, this book looks at the causes and manifestations of uncertainty in international law. It considers both epistemological uncertainty as to whether we can accurately perceive norms in international law, and ontological problems which occur inter alia where two or more norms conflict. The book looks at these issues of uncertainty in relation to the foundational doctrines of public international law, including the law of self-defence under the United Nations Charter, customary international law, and the interpretation of treaties.

In viewing international law through the lens of Kelsen's theory Jörg Kammerhofer demonstrates the importance of the theoretical dimension for the study of international law and offers a critique of the recent trend towards pragmatism and eclecticism in international legal scholarship. The unique aspect of the monograph is that it is the only book to apply the Pure Theory of Law as theoretical approach to international law, rather than simply being a piece of intellectual history describing it.

This book will of great interest to students and scholars of public international law, legal theory and jurisprudence.

1
Introduction

What is uncertainty?

Jede Wissenschaft ist, unter anderem, ein Ordnen, ein Vereinfachen, ein Verdaulichmachen des Unverdaulichen für den Geist.¹

This is an unusual book. Its unusual features may be able to provide a different insight into the study of international law, but they do require an explanation. How scholars conceive of what they are doing is fundamental for their work: it is their approach. The Pure Theory of Law makes a distinctly modernist claim to applying scientific methodology to law. This is the notion that what we do is a legal science in some proper sense of the word, what for the German language is Rechtswissenschaft. The approach also determines the relationship to other theories of ‘what lawyers do’,² more so than differences in substance.

As this monograph provides a critique of traditional international legal scholarship from a very specific point of departure, both that critique and the constructive elements are merely one possible view or approach. The existence of many rival theoretical approaches as well as some pragmatic, a-theoretical views of international law is evidence enough to suggest that other views are entirely possible and on a philosophical level equally plausible. On this philosophical level the choice of theory made here is arbitrary³ and not justifiable.⁴ And this argument for a relativistic approach is itself wholly in line with the Pure Theory’s

¹ ‘Every science is, inter alia, ordering, simplifying and making the indigestible digestible for the mind.’ Herrmann Hesse, Das Glasperlenspiel (1943). Foreign language quotes will be given in their English translation in the main text, except for chapter and section mottos, and the original will be reproduced in the footnotes. All translations are the present author’s, except where noted.

² In a recent publication, Sean Coyle and George Pavlakos contra-posit two fundamentally different views of what lawyers purport to do, utilising the concepts of ‘jurisprudence’ and ‘legal science’ to express these views: Sean Coyle, George Pavlakos (eds), Jurisprudence or legal science. A debate about the nature of legal theory (2005). Cf. Ralf Dreier, Zum Selbstverständnis der Jurisprudenz als Wissenschaft, 2 Rechtstheorie (1971) 37–54 at 38.

³ The word ‘arbitrary’ is used in a specific sense throughout this book, one that differs from the common meaning, which has taken on a negative connotation. It is used in the sense of ‘determined and constituted by an act of will’, not expressing whim, but the ‘free’ and constitutive nature of human decision.

⁴ See Chapter 7 for a specific, but fundamental, restriction of this argument.

consistent value-relativism, for that question may be asked normatively: what approach ought one to take? If this is a normative question,⁵ then value-relativists cease to desire to provide a ‘right’ answer and will content themselves with describing the competing values. The relativity of the Pure Theory as choice will be emphasised throughout this book. The goal is to utilise that particular approach, to consistently apply it to some of the problems facing international law today and to see what benefits and problems this engenders for our study of the law – no more.

The Vienna School of Jurisprudence is a Modernist movement, embedded in the early twentieth-century Viennese milieu that enabled the creation of many other prominent modernisms, such as the Logical Positivism of the Vienna Circle, modernist architecture, literature and music. As Modernist theory, it has a very strong inclination towards certain aims in what it does. It is clearly an epistemological approach, based on the notion that the goal of legal science is to perceive law in the most objective fashion possible⁶ and that norms constitute a ‘truth’ in some sense of the word that is worth perceiving. While they acknowledge that the notions of ‘objectivity’ and ‘truth’ are problematic and that epistemological problems might exist that may make the cognition of its object difficult or impossible, another modernist characteristic is that they would not consider ceasing to strive for a scientific perception of law in favour of a pragmatic or political conception.

But why would one want to write on the uncertainty of international law and describe what is not law when there is so much law left to describe? What benefits can possibly arise from not describing how international law is, but how it is not, or from knowing which areas of law we do not know? International law’s uncertainty is interesting, because international law is uncertain, at least more so than most municipal legal systems.⁷ Also, international legal writings generally do not penetrate very deeply into the realm of theory. This form of scholarship has sometimes even been called a literary genre.⁸

From a theoretical point of view, however, international law is not categorically more uncertain than any other legal system. International law and municipal laws are not categorically different legal orders, as traditional scholarship sometimes argues. Uncertainties occur in municipal settings just as much as they do in international law. The structural problems of international law are the same as those of any law or of any normative system. Municipal systems and the people involved in their operation just happen to be better at hiding these problems. Written constitutions tend to blind us to the theoretical failings and uncertainties by virtue of the domination of doctrine, the domination of ‘the’ constitution, the domination of the inevitable ‘gap-filler’ of a dominant legal culture. Also, if one

⁵ Cf. Matthias Jestaedt, Perspektiven der Rechtswissenschaftstheorie, in: Matthias Jestaedt, Oliver Lepsius (eds), Rechtswissenschaftstheorie (2008) 185–205 at 205.

⁶ Hans Kelsen, Reine Rechtslehre (2nd ed. 1960) vi.

⁷ G.J.H. van Hoof, Rethinking the sources of international law (1983) 173.

⁸ Philip Allott, Language, method and the nature of international law, 45 British Year Book of International Law 1971 (1973) 79–135.

proceeds from certainty, one has to presuppose much more of the theoretical underpinnings, as one inevitably does. Furthermore, it is likely that the theoretical basis remains in the scholar’s subconscious and is not made part of the debate.

Explaining the causes of uncertainty is important, because by uncovering the causes we can at least try to avoid uncertainty in future law-making. The reasons why international law is uncertain will also help us better understand the theory of norms and its failings. International law is a good test-case for theory, because through the absence of a dominant legal culture and doctrine we can cognise the theoretical substructure (and its problems) much more clearly⁹ – without first having to circumvent a municipal legal tradition’s taboos.

Uncertainty is not some monolithic phenomenon or a feature of positive international law. To attempt a definition of a complex set of causes and manifestations before one has had a look at the ‘lie of the land’, in this case at the law and theories about it, is not likely to yield useful results. Describing uncertainty does not involve the creation of a theory from thought alone. This book as a whole is an attempt to define uncertainty by showing what it looks like in areas of positive international law and legal theory. In this respect, the book works like an induction from a mass of empirical data.

Since uncertainty is multi-phenomenal and multi-causal, a definition in the classical sense – a reduction to one simple explanation (e.g. ‘because states are sovereign’) – will not be successful. The only alternative is to list manifestations and to categorise them. Like an archaeologist digging test trenches to uncover a hidden structure, this book will give examples of uncertainties in international law and their causes in the following chapters.

One can distinguish four levels of uncertainty in international law. Level One concerns the uncertainty of substantive legal norms (Chapter 2). The norm may be valid or not, but we cannot know whether it is, what its content is (Chapter 4), or its content may be so indeterminate to make its subsumption to facts impossible. Level Two is an uncertainty of law-making norms, the law on sources (Chapter 3). Level Three is an uncertainty as to the ‘possibility’ of a source, i.e. of the constitution of international law (Chapter 6). Level Four is uncertainty in the theory of norms. The possibility of the existence of norms is uncertain, because, for example, there is too much law (Chapter 5). Even if we start assuming dogmas at the higher levels of the thought-pyramid – as we will have to (Chapter 7) – we cannot thereby fully determine the content of the lower levels. If we were, for example, to assume that customary international law exists as a source, we would not thereby have fully determined what elements are necessary to create customary law. If we were to assume that customary law came from state practice and opinio iuris, we could not thereby have fully determined what norms actually are customary international law.

Lastly, there is a fundamental distinction between two types of uncertainty. On the one hand we have epistemological uncertainty. There are inherent limits as to how

⁹ Christoph Kletzer, Kelsen’s development of the Fehlerkalkül-Theory, 18 Ratio Juris (2005) 46–63 at 62.

well we can perceive law. Practical and theoretical problems may hinder us from knowing whether a proposed norm ‘Op’ is a norm of international law. We may, for example, be unclear as to what is required to create a norm of customary international law and thus not know whether the proposed norm is such a norm. We may also be certain that ‘Op’ is written in a treaty, but interpretation as perception of the content or meaning of the norm is a new factor of uncertainty. On the other hand there is ontological uncertainty. Whereas the question of epistemological uncertainty is whether we can accurately perceive international law, here the question transcends these problems to come to the direct question of what happens when international law itself is, when the norms themselves are, problematic. When two norms conflict, we assume both to be valid, but it is an ontological question what happens when they conflict.

Thus, the only answer that can be given at the beginning of the book is that no definite answer can be given. The phenomenon of ‘uncertainty’ is neither confined to international law, nor is it resolvable in most cases, nor does it have a definite cause. To deny uncertainty where it exists, however, is one of the gravest failings a scholar can commit, because scholarship is a commitment to seek knowledge. Knowing where our knowledge ends is itself knowledge.

2
Self-defence under the United Nations Charter

The law on the use of force is one of the most fiercely contested areas of international law. Owing to its highly political nature, the prohibition of the threat or use of force in international relations has become the focal point for disagreements between scholars, states and even international tribunals. Mainly as a result of these disagreements that body of law is not sufficiently well established; therefore, it can be called ‘uncertain’. The existence of a justification of self-defence is not in doubt, neither in UN Charter law nor in customary international law. However, its scope is contentious.

This chapter is an attempt to demonstrate how uncertainty manifests itself in the law on self-defence. However, it is somewhat deceptive to assume a simple and absolute duality of cause and m...