Law 9780198745365 Chapter 21

Sources in Interpretation Theories: An Interdependent Relationship
Sources in Interpretation Theories: An Interdependent

Relationship
Duncan B. Hollis
The Oxford Handbook of the Sources of International Law
Edited by Samantha Besson and Jean d’Aspremont
Print Publication Date: Oct 2017

Subject: Law, International Law, Jurisprudence and Philosophy of Law
Online Publication Date: Feb 2018 DOI: 10.1093/law/9780198745365.003.0021
Abstract and Keywords
This chapter examines the relationship between international law’s sources and its theo
ries of interpretation. Challenging assumptions that the two concepts are, at best, casual
acquaintances, this chapter reveals and explores a much deeper, interdependent relation
ship. Sources set the nature and scope of international legal interpretation by delineating
its appropriate objects. Interpretation, meanwhile, operates existentially to identify what
constitutes the sources of international law in the first place. The two concepts thus ap
pear mutually constitutive across a range of doctrines, theories, and authorities. Under
standing these ties may offer a more nuanced image of the current international legal or
der. At the same time, they highlight future instrumental opportunities where efforts to
change one concept might become possible via changes to the other. This chapter con
cludes with calls for further research on whether and how such changes might occur and
asks if international lawyers should embrace (or resist) such a mutually constitutive rela
tionship.
Keywords: Choice of law, General principles of international law, Sources of international law, Treaties, interpre
tation
I. Introduction
How do international lawyers perceive the relationship between interpretation and the
sources of international law? For most, the relationship is a casual one. Lawyers recog
nize both concepts as critical to the international legal order, but emphasize their differ
ent functions and contents. Sources theories operate to delineate the bases of obligation
—what validates international law as ‘law’—and locate where to find it, with most an
swers referencing Article 38 of the Statute of the International Court of Justice (ICJ).1
Interpretation, in contrast, is usually understood as a means (p. 423) to give international
law meaning via expository methods and techniques, most often those associated with the
Vienna Convention on the Law of Treaties (VCLT).2 Where international law comes from
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and what it means are thus treated as related questions, but not otherwise terribly inter
twined.
On closer analysis, however, some lawyers recognize that the relationship between inter
pretation and sources is a dependent one. Interpretation cannot function without having
something to interpret, and sources doctrine provides the interpreter with a sanctioned
menu of ‘international law’ options.3 International legal interpretation thus involves as
signing meaning to treaties and judicial opinions (as opposed to things like novels or
paintings) precisely because the sources of international law sanction doing so. Moreover,
by proffering criteria for a source—such as the need for customary international law to
reflect both State practice and opinio juris—sources doctrine scaffolds how interpreters
examine the contours of any specific rule.
But is the relationship between interpretation and sources so one-sided? If interpretation

needs sources, might not the sources of international law need interpretation? In this
chapter, I explore the possibility of an interdependent relationship between these two
concepts.
On one level, my claim is straightforward: international lawyers do not simply interpret

from the sources of international law, they also source international law from acts of in
terpretation. Asking what the sources of international law are and why they bind its sub
jects are inherently interpretative questions.4 Of course, few international lawyers under
stand sources in interpretative terms. But as scholars move to unsettle the sources con
cept—and, as this volume suggests, they are doing so in increasing numbers—it becomes
possible to see interpretation’s role in constructing what we mean by the sources of inter
national law.
On another level, however, the interdependence of interpretation and sources is—like all
relationships—a complex one. Looking across a range of features for both concepts—their
(a) doctrines; (b) theories; and (c) authorities—we see multiple instances of mutual im
pact. Recognizing these linkages is significant in two respects. First, they have descrip
tive value. They offer additional external explanations for (p. 424) each concept’s current
construction beyond the self-absorbed ontological inquiries with which each usually wres
tles.5 Second, associating sources and interpretation creates instrumental opportunities.
Efforts to settle (or unsettle) the construction of one concept can impact the other’s archi
tecture. Calling for sources theory to shift from a consensual orientation to one founded
on justice, for example, may devalue interpretative theories emphasizing text and authors
while privileging those tied to teleology. Interpreters who operate in teleological terms
then establish social ‘facts’ that reinforce the sources shift, as much as those who contin
ue to define interpretation in textual or intentional terms undermine it. Taken together,
such interactions suggest that the relationship between interpretation and sources is mu
tually constitutive.
In this chapter, I introduce the interpretative process—or what I call ‘existential interpre
tation’—involved in delineating international law’s sources. I then explore the interdepen
dent thesis by looking at how the doctrines, theories, and authorities of sources impact
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interpretation and vice versa. Doing so offers a new lens for understanding international
law and its dynamic potential for change, opening new avenues for research on the mutu
ally constitutive potential of interpretation and sources.
II. Existential Interpretations of International

Law’s Sources
International legal interpretation is usually understood in expository terms—a process for
assigning meaning to international law.6 By emphasizing meaning, interpreters tend to fo
cus on unpacking the appropriate way(s) to establish it. Interpretative theories offer no
less than five potential objectives for the interpretative process, assigning meaning based
on (i) the object of interpretation; (ii) the intentions of the object’s author(s); (iii) the
object’s purpose; (iv) the interpreter; or (v) the community in which the interpretation oc
curs.7
Today, all five approaches have adherents in international law. The VCLT famously
(p. 425)
accommodates the first three theories simultaneously in a ‘crucible’ approach.8 Those

who believe meaning is ‘found’ in the interpreted object—the treaty itself—can pursue a
textual approach based on Article 31’s direction that a ‘treaty shall be interpreted in good
faith in accordance with the ordinary meaning to be given to the terms of the treaty in
their context . . . ’ .9 Article 32, in contrast, supports finding a treaty’s meaning within the
authors’ intentions via the negotiating history. Although Article 32 suggests that the
travaux préparatoires may only confirm textual efforts or supply meaning when those ef
forts fail, such caveats have done little to bar treaty interpretations on subjective terms.10
Article 31’s references to interpreting the treaty ‘in light of its object and purpose’ and
‘any relevant rules of international law’ also afford ample grounds for more teleological
efforts.11 Meanwhile, hermeneutics and legal philosophy—most notably Ronald Dworkin’s
work—emphasize interpreters, noting how their biases and preconceptions create mean
ing beyond the interpreted object or its authors’ views.12 Finally, contributions by Stanley
Fish, Jürgen Habermas, and Martti Koskenniemi emphasize (albeit very differently) how
interpretation derives from arguments and understandings among a particular group of
actors, or what Fish terms ‘interpretative communities’.13
For all their differences, however, these expository theories share a common presumption
—the existence of some international law in need of interpretation. (p. 426) This is certain
ly true for those who expect interpretation to ‘find’ meaning in international law through
texts or original intentions.14 But it is equally true for those who view interpretation as an
act of creation, whether by an interpreter or some larger community.15 Painters need can
vases, potters need clay, and legal interpreters need law to do their work. Dworkin’s in
terpretative theory makes this point explicitly, identifying a ‘preinterpretative stage’ in
which an interpretative community identifies a shared set of convictions about ‘what
counts as part of the practice in order to define the raw data’.16 Thus, all international le
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gal interpretation depends on having some accepted set of international legal objects
from which the assignment of meaning proceeds.17
Identifying these legal objects—and explaining their validity as ‘law’—is the primary func
tion of sources doctrine. Whatever constitutes a source of international law constitutes an
appropriate object of interpretation. Thus, Article 38’s sources triad—treaties, custom,
and general principles—provides a foundation for the majority of international legal inter
pretation. Ambiguities or differences over the meaning of these primary sources spawn
further interpretative inquiries of other objects Article 38 labels as ‘subsidiary’: judicial
opinions and scholarship.18 The need to understand the meaning and operation of the
sources of international law is even at work in topics where Article 38 is silent, such as
State responsibility, since an internationally unlawful act’s consequences depend on
knowing what is lawful in the first place.19 In other words, international legal interpreta
tion may generally be framed as either directly or indirectly dependent on the sources of
international law.
But interpretation’s dependence on sources is not a one-way street. How are the
(p. 427)
sources of international law identified? They emerge from an interpretative process that I
call ‘existential interpretation’.20 Amidst the expository function of interpretative process
es, existential interpretations examine a specific type of meaning, namely whether the ob
ject of interpretation ‘exists’ or has validity given the context for which interpretation is
sought. Existential interpretations are distinguished by their binary character, asking
whether (or not) the interpreted object exists within the corpus of international law.
Existential interpretations are visible across international legal discourse, including

which particular authorities, evidence, and rules exist for purposes of international law.21
A recent example involves claims that customary international law includes an ‘unwilling
or unable’ test for using self-defence against non-State actors.22 Existential interpreta
tions may also operate destructively, denying the existence of some rule, as the ICJ did in
rejecting a complete ban on using nuclear weapons.23 In either case, the organizing inter
pretative purpose remains the same—asking if something exists for the purposes of inter
national law.
The same existential reasoning operates in the sources context.24 The validity or exis
tence of international law’s sources depends on an existential interpretation. Jean
d’Aspremont, for example, differentiates (i) the process of giving content to international
law (‘content-determination’), which is usually associated with interpretation; from (ii)
the process of discerning the law itself (what he calls ‘law-ascertainment’). In doing so,
d’Aspremont readily acknowledges that law-ascertainment is an interpretative process, al
beit one for which he invokes different interpretative guidelines.25 Dworkin similarly con
ceded that, despite its ‘pre-interpretative’ moniker, identifying the sources or objects of
legal interpretation is itself an interpretative exercise.26
Existential interpretations of international law’s sources are most visible in attempts to

identify sources beyond Article 38’s list. The Nuclear Tests opinion offers an example, as
the ICJ (arguably) interpreted into existence a new source of international law—unilateral
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declarations.27 In contrast, existential interpretations for (p. 428) international law’s basic
sources—treaties, custom, general principles—are rare given Article 38’s canonical sta
tus.28
Even without an express existential interpretation, however, all international legal inter
pretations have some existential effects. Expository interpretations necessarily involve ex
istential interpretations even if the latter remain hidden—lying in background assump
tions or convictions and revealed only by implication. For example, few (if any) inter
preters include in interpretations of Article 2 (4) of the UN Charter an analysis of the
Charter’s status as a treaty, let alone explain why treaties are sources of international
law.29 Nonetheless, the very process of ascertaining what Article 2 (4) means necessarily
claims for the Charter the status of a valid or ‘existing’ object of interpretation, which, in
turn, affirms the role of treaties as a source of international law. Thus, the very process of
exposition validates the interpreted object’s existence, including the source(s) for that
object’s validity.30
Whether they are express or lurking in the background, existential interpretations of in
ternational law’s sources are still interpretative acts. As such, they implicate the same de
bates over proper interpretative methods (e.g., textual, subjective, teleological) as inter
national legal interpretation more generally. To further complicate matters, nothing re
quires interpreters to adopt a single, unifying approach. An interpreter can adopt the
same method (e.g., focusing on States’ intentions to determine both which sources of in
ternational law exist and what their contents mean). But an interpreter might also adopt
different methods for different contexts (e.g., employing a teleological method, to ascer
tain the existence of treaties as a source of international law, a subjective method to ex
plicate a specific treaty’s existence, and an interpretative community framework for giv
ing meaning to its terms). In either case, the method chosen for an existential interpreta
tion of sources can impact their assigned meanings. As a result, the relationship between
sources and interpretation is clearly bi-directional.
III. The Range of Interdependence between

(p. 429)
Sources and Interpretation

Accepting the interdependence of sources and interpretation raises two key questions.
First, how has this relationship worked in the current international legal order? We can
see evidence of mutual impact across a range of both concepts’ key features, including
their (a) doctrines; (b) theoretical foundations; and (c) authorities. Of course, in all three
contexts, there are ambiguities and significantly divergent views. Such differences sug
gest a second, and perhaps more important, set of questions—what are the consequences
of changing how we construct one concept’s doctrine, theory, or authorities for the other?
1. Doctrinal Interdependence
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a. Constructing International Legal Interpretation from the Sources of In

ternational Law
Sources doctrine begins (and, for some, ends) with Article 38.31 Its construction of prima
ry (treaties, custom, general principles) and secondary (judicial opinions, scholarship)
sources may explain several features of international legal interpretation. For starters,
consider how Article 38’s reification of treaties pairs with international legal
interpretation’s own treaty focus, including the VCLT rules. The inclusion of treaties
‘whether general or particular, establishing rules expressly recognized by the Contracting
States’ in the original draft of Article 38 (then 35) for the Permanent Court of Internation
al Justice (PCIJ) was apparently ‘straightforward’, an unsurprising choice for an adjudica
tory body looking to resolve disputes between specific parties.32 But transforming treaties
into a general source of ‘law’ was neither inevitable nor without conceptual difficulties.
As Sir Gerald Fitzmaurice famously noted, treaties are sources of obligations for specific
parties, not laws of general application.33
Nonetheless, adopting Article 38 for the sources of international law assigned

(p. 430)
treaties a sources’ status that contributed to their rapid expansion as an instrument of in
ternational law. It served as a catalyst for the twentieth-century’s massive proliferation of
treaty-making, a practice that increasingly included treaties framed in legislative terms
(traités-loi) alongside the more traditional contractual iterations (traités-contrat).34 Doing
so also mandated interpretative attention. Designating treaties as a source of internation
al law permitted—if not required—increased attention to divining rules for their interpre
tation, a decades-long project that culminated in Articles 31–32 of the VCLT.35 Today, in
ternational legal interpretative doctrine remains firmly rooted in the law of treaties, even
as scholars push for a wider lens.36
Article 38’s construction of other sources actually reinforces the explicit association of in
terpretation and treaties. Reading Article 38 to assign two elements to custom—State
practice and opinio juris—may not follow from the text itself (nor those who drafted it),
but it is the dominant paradigm.37 It is, moreover, a formula (p. 431) notorious for expos
ing questions of identification—discerning whether (or not) custom exists.38 Of course,
the process of ascertaining custom’s existence is an interpretative process—a prime ex
ample of the existential interpretation phenomenon discussed earlier. But for internation
al lawyers who envision interpretation solely in expository terms, such discourse may be
deemed to lie outside the interpretative field. Indeed, only recently has interpretative
scholarship even begun to ask about the appropriate processes for assigning meaning to
existing customary rules.39
A similar logic preoccupies discourse on general principles of law. Almost all attention
centres on defining the concept—as an auxiliary gap-filler, as a natural law vehicle, or as
a repository for fundamental ‘meta’ legal principles—which is used, at most, in a ‘rather
loose, imprecise and inconsistent manner’.40 Judicial opinions, in contrast, are neither
hard to identify nor overlooked in the VCLT rules or interpretative doctrine more general
ly.41 Interestingly, however, international lawyers rarely inquire about the processes by
which they interpret judicial opinions; the focus is on how well judges interpret treaties,
Page 6 of 24

identify custom, invoke general principles, etc. As such, international law offers little doc
trine on interpreting judicial opinions themselves. Article 38 helps explain this state of af
fairs by labelling these opinions a ‘subsidiary’ source—i.e. a vehicle for interpretation,
rather than its object. Taken together, therefore, issues of identification for custom and
general principles alongside the subsidiary status of judicial opinions (not to mention le
gal scholarship)42 have left treaties in the pole position for setting the terms of interna
tional law’s interpretative doctrines.43
For those who envision sources doctrine to extend beyond Article 38, however, additional
candidates may reconstruct interpretation in non-treaty terms. In (p. 432) recognizing the
legal effects of unilateral declarations, for example, the International Law Commission
(ILC) suggested a more restrictive framework than the VCLT provides: in ‘cases of doubt
as to the scope of obligations resulting from such a declaration, such obligations must be
interpreted in a restrictive manner’.44 Interestingly, the ILC claimed this approach fell
within the VCLT’s ambit—suggesting a strong path dependency for treaty-centred doc
trine—despite the difficulty of reconciling the VCLT’s contents with a restrictive
method.45
Interpretation doctrine may also be recast by international organizations (IOs). For some,
the extant treaty doctrine is sufficient. The VCLT acknowledges that IO constitutive in
struments can trump its rules, including presumably those on interpretation.46 Where IOs
take decisions binding the IO or its Member States,47 treaty interpretation rules may both
accord those decisions validity (on the theory that Member States agreed in the treaty
constituting the IO that they would be so bound) and delineate their contents.48
For other international lawyers, however, IOs are a stand-alone source of international
law.49 That status justifies extending to IO treaties and their decisions different interpre
tative methods, most often those cast as ‘constitutional’, prioritizing teleological analysis
over the textual or subjective objectives that the VCLT also includes in its crucible
method.50 EU regulations, for example, are widely interpreted as having a legislative
character independent of treaty law and practice.51 (p. 433) Whether that example is sui
generis depends on what list of international law’s sources lawyers use.52
More radically, the concept(s) of soft law may recast the scope, functions, and processes
of international legal interpretation.53 Unlike IO treaties or decisions, soft law adds new
objects for interpretation, namely ‘legally non-binding norms’ produced by State and non-
State actors, such as G7 Declarations and industry codes of conduct.54 Moreover, as a
functional matter, soft law emphasizes compliance and effectiveness with respect to
‘norms’, thereby de-privileging the importance of other international law ‘sources’ and,
with them, questions of legal interpretation. For soft law, interpretation adopts a pluralist
character, serving the interpreters’ ends unlike the object-centred VCLT doctrine.55 Of
course, soft law’s impact on interpretation remains highly contested, with (cogent) argu
ments that it is a redundant or unsound concept.56
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b. Constructing Sources Doctrine from International Legal Interpretation

In section II above, I explained how any specific iteration of sources doctrine is a function
of (existential) interpretation. As such, different interpretations may generate different
images of international law’s sources. The canonical status accorded to Article 38, for ex
ample, appears to proceed from an objective—if not an explicitly textual—method of inter
pretation. Article 38 emerged at a time when interpreters still ascribed to the view that
international law existed to be ‘found’. As Ingo Venzke’s chapter details, this view may no
longer be intellectually sustainable.57 Nonetheless, that approach helps explain why, hav
ing ‘codified’ the list of sources, they became a default, common denominator for interna
tional lawyers.58 Moreover, (p. 434) given the association of interpretation with treaties, it
bears noting how the sources were (finally) articulated in a treaty text.59 In other words,
we identify the sources of international law—first and foremost—textually, taking the
words used at face value.
More recently, the VCLT’s fingerprints appear on modern interpretations of international

law’s sources. To confirm the meaning of Article 38, international lawyers have excavated
its preparatory work to alter whether and how we understand it as the authoritative
sources repository. D’Aspremont, for example, cites this work to revise the meaning of
customary international law, specifically undermining claims that custom’s elements of
State practice and opinio juris owe their genealogy to Article 38.60 The VCLT’s directive
to accommodate ‘other sources of international law’, ‘subsequent practice’, and ‘subse
quent agreements’ can generate interpretations of the treaty text (Article 38) focused on
a wider and more dynamic universe of sources than that text or its authors intended.61 A
similar outcome may arise for those inclined to teleology, recasting sources in terms of
the purposes of international law. For example, in light of the ‘fundamental importance of
the human rights component of a just world order’, Bruno Simma and Philipp Alston fa
mously suggested reinterpreting general principles of law to comprise international hu
man rights in lieu of their more standard classification as part of custom.62
A teleological objective may also lead to existential interpretations of sources beyond Ar
ticle 38. Recall the teleological rationale on which the existence of the implied powers
doctrine rests, a rationale that, in turn, may facilitate IO interpretations beyond the
VCLT’s strict confines.63 The same interpretative objective may lead to more radical de
partures from the status quo. Samantha Besson, for example, arrives at her sources theo
ry via a combination of teleological64 and interpretative community frameworks.65
Of course, any existential interpretations of sources will not turn solely on the chosen ob
jective. The logic employed can also vary, most notably between inductive (p. 435) and de
ductive approaches. That choice may significantly impact the very concept of sources—is
meaning constructed in Koskenniemi’s words as an apology from State practice or to per
fect some Utopian international law Disneyland.66 To the extent both options are avail
able, critical views may claim that sources—like the rest of international law—constitute a
realm of substantive indeterminacy.67 More practically, the consequences of these choices
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explain the continued debates over whether to interpret customary international law ac
cording to an inductive ‘traditional’ method versus a deductive ‘modern’ approach.68
Taken together, sources and interpretative doctrines reveal an interdependent dialogue.

Different iterations of sources doctrine—whether in Article 38 or beyond—generate dif
ferent images of interpretation. And different interpretative methods reveal sources doc
trine in different guises. The foregoing survey thus elaborates debates over sources and
interpretations not just on their own terms, but also as the product of mutual association.
Seeing interpretation follow sources and sources follow interpretation suggests, more
over, that future shifts in one doctrine may, in turn, construct new versions of the other.
2. The Impact of Sources Theory on Interpretation and Interpretative

Theory on Sources
For all the attention devoted to Article 38 by international lawyers, its concept of sources
remains incomplete without a theory for why it (or some other listing) determines what
constitutes ‘international law’. And just as sources doctrine impacts interpretation, so too
does the theory behind international law’s basis (or bases) of obligation. Among the many
candidates, two warrant special mention: consent and justice.69
For starters, sources theory is ‘primarily associated with legal positivism of which the
central tenet is that international law derives from the consent of the States that are its
subjects’.70 Adherents to the positivist school thus identify State consent (p. 436) as the
defining characteristic for identifying international law’s sources. Doing so inevitably pri
oritizes interpretation’s search for meaning in terms of State consent as well. But this
does not necessarily mean an exclusive emphasis on subjective interpretation in matters
of exposition. As Arnold McNair argued, one could favour a textual approach to best fur
ther an interpretative theory based on identifying State consent.71 And although a teleo
logical method might, at first glance, imply a ready willingness to put the interpreter’s
views ahead of the authors’, that is not a foregone conclusion, particularly where States
may have consented to such an approach, whether explicitly in the text or by implication
in preparatory work. Besson’s work in particular offers a positivist theory of sources with
an avowedly normative emphasis on achieving legality, normativity, and legitimacy.72 As
noted above, a plurality of consensual theories is also possible, with separate theories for
interpreting the existence of international law and for divining its contents. Nonetheless,
a consensual theory of international law does cabin interpretation theories in one impor
tant respect—it prioritizes those that centre on assigning meaning via the object of inter
pretation and its authors rather than the interpreter or some interpretative community.
In recent years, the consensual theory of sources has been regularly critiqued as incom
plete or incoherent.73 In its place, various theories have supplanted some form of justice,
whether rooted in natural law or a policy-oriented methodology.74 Like consensual theo
ries, justice-oriented theories of sources have natural extensions into the interpretative
context. This does not necessarily mean dispensing with textual or subjective approaches
entirely; one could, for example, adopt a notion of justice centred on promise-keeping,
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thereby leaving ample room for these traditional interpretative theories. Nonetheless, by
shifting interpretation’s chief reference point to moral (or policy-oriented) principles, it
necessarily de-emphasizes textual or subjective methods that generate meaning inconsis
tent (or in competition with) those principles.
A justice-oriented theory of sources may be most attracted to a justice-based theory of in

terpretation, whether purposive (e.g., teleological) or aspiring to achieve justice itself
(e.g., Dworkin’s legal interpretativism).75 And if justice—like art—lies in ‘the eye of the
beholder’, room becomes available for more overtly interpreter-based (p. 437) theories of
justice like hermeneutics, hegemonic arguments, or the eyes of an entire interpretative
community. The methodological emphasis of interpretation may also shift in the face of
justice theories; their orientation around principles offers more room for deductive rea
soning than inductive efforts that build legal meaning from State behaviour. Thus, a jus
tice-based theory of sources does not dispense with any specific interpretative theory, but
it certainly prioritizes them differently than a theory oriented around State consent.
Over time, sources theory has oscillated between these ontological poles of consent/posi
tivism and justice/naturalism. For many international lawyers, sources theory ends up
somewhere in the middle, with different theories justifying different sources—and thus
different interpretative theories—in a pluralist international legal order.76 Others have
moved to dispense with sources theory altogether, emphasizing instead questions of com
pliance or effectiveness.77
As with doctrinal interdependence, the relationship between theories may run both ways.
Interpretative theories that orient around the object of interpretation (textual, subjective,
teleological) are internal to international law. As such, they tend to associate the purpose
of interpretation with the purpose of law, making it difficult to discern the theory’s true
home (i.e. are the sources of international law determined by State consent or is State
consent the vehicle for interpreting its sources?).
Other interpretative theories are external to international law and thus may have a more
visible impact on its sources. D’Aspremont, for example, invokes Fish’s ‘interpretative
community’ theory to articulate a ‘social theory of sources’.78 He argues that identifica
tion of international law’s bases of obligation and their location are inherently dynamic,
the result of an on-going process of interpretation by those accepted as having authority
to apply the law (the law-appliers).79 In other words, his sources theory follows from his
adoption of Fish’s (external) theory of interpretation. At the same time, however,
d’Aspremont is careful not to dispense with the need for sources theory, but rather em
phasizes how it may be constructed differently through his social theory of
interpretation.80 This contrasts with the views of Venzke, whose theory of interpretation
as semantic authority might be read to dispense with sources theory entirely in favour of
law-making as ‘communicative (p. 438) practices of interpretation’.81 Of course, such a
hegemonic move only highlights the ties that bind theories of interpretation to sources
and vice versa.
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3. The Interdependence of Authorities
Domestic legal systems purport to distribute authority across different institutions.82

Legislatures are granted the authority to make the law; executives are granted the au
thority to enforce the law; and judiciaries are granted the authority to interpret the law.
As I explained in section II above, law-making and interpretative authorities are not so
easily disaggregated; law-making is itself a product of (existential) interpretation and in
terpretations regularly function in a creative, law-making way. This muddling of authority
is more pronounced in the international legal order given the notorious absence of any
universal legislature or judiciary. Moreover, as with theory and doctrine, the structure of
authority to ascertain law’s sources impacts who has authority to interpret just as the au
thority to interpret may realign who has authority to ascertain the law’s existence.
For sources, States are the conventional (in both senses of that term) locus of law-making
authority. Article 38 is clearly State-centric in assigning such authority (as was, for that
matter, the original VCLT, which only covered treaty-making by States).83 The centrality
of States to the creation of international law carries over into the interpretative context.
To be sure, States may delegate interpretative authority to international institutions as
they did under the PCIJ (and, later the ICJ) Statute. In the absence of such a delegation,
however, we are left, as Leo Gross described it, where ‘each state has a right to interpret
the law, the right of autointerpretation, as it might be called’.84 Under the conventional
view, therefore, law-making emerges from a process of interpretation among a discrete
group of authorities—States.
If we take a different view of law-making authority, however, we may also alter who holds
interpretative authority. For example, if international institutions have law-making au
thority, they necessarily obtain interpretative authority as well (if not just in establishing
the existence of international law, but also perhaps in opining on its meaning). This is es
pecially the case for international courts and tribunals. Accepting their capacity to make
international law shifts the very nature of their (p. 439) interpretative authority from one
where they act as agents of States to a more autonomous role, or what Karen Alter
termed a ‘trusteeship’.85
Of course, this assumes that the State-centric concept of law-making authority was accu
rate in the first place. It is possible, however, to locate law-making authority not in States,
but individuals themselves. Thus, Louis Sohn famously argued that ‘states never make in
ternational law on the subject of human rights. It is made by the people that care: the
professors, the writers of textbooks and casebooks, and the authors of articles in leading
international law journals’.86 And if individuals can make law—whether or not they speak
for a State—it dramatically opens up the range of those who may claim interpretative au
thority as well.
Conversely, interpretative authority may structure law-making authority. Gross’s theory of

auto-interpretation, for example, not only assigns States an interpretative role, but ac
knowledges that those States may make law by consenting to some common interpreta
tion (whether in a treaty or by accepting third-party adjudication or arbitration).87 Courts
Page 11 of 24

and international tribunals regularly claim authority (or, more precisely, jurisdiction) to
interpret the content of international law.88 As the breadth and depth of these opinions
grows, it is interesting to see suggestions that their precedents may warrant more than
the secondary status Article 38 accords them; the capacity to interpret the law’s contents
may thus translate into a capacity to establish its existence.89
International human rights law offers another case where non-State actors have claimed
interpretative authority that leads to very different visions of who makes international
law and what it says than those offered by States. In a well-known example, the UN Hu
man Rights Committee issued General Comment No. 24, claiming for itself binding au
thority to interpret the admissibility of reservations to the International Covenant on Civil
and Political Rights.90 Accepting such claims leads to not only alternative visions of inter
national human rights law, but to a different set of authorities for constructing it. Indeed,
studies of semantic authority suggest that the practice of making international law comes
from a much broader (p. 440) array of actors (e.g., international courts and tribunals,
treaty bodies, IOs, industry, civil society, scholars) than States alone. In other words, ex
panding the range of those with interpretative authority does not just reconstruct what
international law ‘is’ but also who makes it.91
IV. Conclusions: Caveats and Consequences in

Engaging Interdependence
The relationship between the sources of international law and international legal inter
pretation is clearly deeper than most international lawyers acknowledge. In this chapter, I
have attempted to offer a new perspective on this relationship, revealing how sources set
the objects of international legal interpretation and how (existential) acts of interpreta
tion set international law’s sources. Different manifestations of this interdependent rela
tionship are evident across both concepts’ doctrines, theories, and authorities. But why
make the effort? What value can interpretation or sources find in their mutual associa
tion?
First, the interdependence thesis may have descriptive value. These linkages across vari
ous features offer a new way to assess the current state of thinking for each concept in
areas of both consensus and division. This is not to suggest that I can establish causation
—specific changes in sources doctrine generating specific alterations to interpretation
doctrine, or vice versa. Far from it. That effort involves more historical and theoretical
discourse than a chapter such as this allows. On the contrary, as presently constructed,
my analysis appears circular, with sources’ influence on interpretation explaining
interpretation’s influence on sources, with those sources then looping back to further im
pact interpretation. Rather than decrying such circularity as a vice, however, it may prove
virtuous. The two concepts’ relationship is, if anything, dynamic. In some cases, the two
concepts may prove mutually reinforcing, perpetuating consensus on common elements
(e.g., the role of States). More often, however, novel or divergent developments in one
concept may unsettle and revise the other. As these interactions iterate over time, both
Page 12 of 24

concepts will continue to evolve, and with it the mutually constitutive nature of their
relationship(s).
That said, I do not mean to suggest interdependence as some sort of inevitable,

(p. 441)
progressive expansion of sources or interpretative doctrines. True, we may see an expan

sion in the list of sources leading to an expanded list of interpretative doctrines (or an ex
pansion in interpretative authorities expanding the roles of those with law-making author
ity). But contractions are also possible. For example, Lauri Mälksoo’s chapter explains
how legal scholars lost law-making authority with the standardization of Article 38 as the
authoritative source for international law, a move that also subordinated scholarly claims
to interpretative authority.92
Second, the cross-pollination of interpretation and sources may not only describe the
present, but it also suggests pathways for future development. The two concepts’ interde
pendence opens up new mechanisms for change beyond those derived solely from either
concept’s ontology. Indeed, we can anticipate knock-on effects, where changing an aspect
of one concept alters the other as well, creating instrumental opportunities for States and
scholars in the process. Instead of simply recasting sources directly, for example, the
same result might emerge from alterations to the interpretative concept (or vice versa).
At present, however, we may not know how to do this; we lack knowledge of the micro-in
fluences by which changes in one arena impact or evolve the other.
Thus, a third consequence of interdependence is highlighting the need for further study,
whether to better explain the present or to offer instrumental levers for future develop
ment. Indeed, my effort to examine the dialectic among sources and interpretation is ob
viously incomplete. I have compared the concepts’ features in a relatively linear way, ask
ing how doctrine effects doctrine and theory effects theory. A more developed analysis
would consider whether and how alterations to a feature of one concept (e.g., theory)
might impact a different feature of the other concept (e.g., doctrine or authorities).
Further study could also address whether interdependence explains other common fea
tures of the two concepts. Both sources and interpretation doctrines wrestle, for example,
with the idea of rules. Scholars debate whether sources doctrine involves rules—Hartian
or otherwise—that fix the location of international law’s normativity.93 At the same time,
scholars differ over whether or not the VCLT’s provisions constitute disciplining rules.94
Similarly, issues of hierarchy are evident in both sources and interpretation discourse,
specifically how to prioritize the relative importance of their constituent elements (i.e. is
relative normativity a welcome development for the sources of international law? Are
treaties hierarchically (p. 442) superior to custom? Should a purposive interpretation de
feat a subjective one?).95 The absence of texts, moreover, befuddles both sources and in
terpretation as witnessed in the difficulties both in identifying the existence of non-textu
al law such as custom and interpreting its meaning.
Finally, my interdependence thesis may be important for generating a normative inquiry—

is this relationship good for the international legal order? Is it healthy to have law-ascer
tainment operate as a function of the same interpretative theories by which its contents
Page 13 of 24

are decided? Or, is this less of an interdependent and more of a ‘co-dependent’ relation
ship, with rivalrous and unhealthy linkages that international lawyers should resist, push
ing to return each concept back to independent functional assignments? Such questions
open additional avenues for research and scholarship. For now, it is enough to note that
international lawyers must pay more attention to how we interpret international law from
its sources and source international law from our interpretations.
Research Questions
• How does the choice of interpretative theory, method or technique impact the nature
and purpose of the sources of international law? How does the choice of a specific the
ory or list of sources impact the available theories, methods, and techniques of interna
tional legal interpretation? Under what conditions can specific changes to one concept
generate modifications to the doctrine, theory or available authorities of the other?
• Does a deep and complex mutually constitutive relationship between international le
gal interpretation and the sources of international law benefit (or harm) the interna
tional legal order as a whole?
Selected Bibliography
Aspremont, Jean d’, ‘The Idea of “Rules” in the Sources of International Law’, British
Yearbook of International Law 84 (2013): 103–30.
(p. 443)
Aspremont, Jean d’, ‘The Multidimensional Process of Interpretation: Content-Determina

tion and Law-Ascertainment Distinguished’, in Andrea Bianchi, Daniel Peat, and Matthew
Windsor, eds, Interpretation in International Law (Oxford: Oxford University Press, 2015),
111–32.
Besson, Samantha, ‘Theorizing the Sources of International Law’, in Samantha Besson

and John Tasioulas, eds, The Philosophy of International Law (Oxford: Oxford University
Press, 2010), 163–85.
Fitzmaurice, Gerald G., ‘Some Problems Regarding the Formal Sources of International
Law’, Symbolae Verzijl (1958): 153–76.
Hollis, Duncan B., ‘The Existential Function of Interpretation in International Law’, in An
drea Bianchi, Daniel Peat, and Matthew Windsor, eds, Interpretation in International Law
(Oxford: Oxford University Press, 2015), 78–110.
Koskenniemi, Martti, ‘Introduction’, in Martti Koskenniemi, ed., Sources of International

Law (Burlington: Ashgate, 2000), xi–xxviii.
Merkouris, Panos, ‘Interpreting the Customary Rules on Interpretation’, (2016), <http://

papers.ssrn.com/sol3/Papers.cfm?abstract_id=2749066>, accessed 1 June 2017.
Page 14 of 24

Thirlway, Hugh, The Sources of International Law (Oxford: Oxford University Press,
2014).
Venzke, Ingo, How Interpretation Makes International Law: On Semantic Change and
Normative Twists (Oxford: Oxford University Press, 2012).
(p. 444)
Notes:
(1) Article 38 (1) of the Statute of the International Court of Justice (ICJ) (San Francisco,
26 June 1945, 33 UNTS 993). Although some (like Hugh Thirlway) label these what and
where aspects as ‘formal’ and ‘material’ sources, I do not do so because others define
those terms differently. Compare Hugh Thirlway, The Sources of International Law
(Oxford: Oxford University Press, 2014), p. 4 with Samantha Besson, ‘Theorizing the
Sources of International Law’, in Samantha Besson and John Tasioulas, eds, The Philoso
phy of International Law (Oxford: Oxford University Press, 2010), 163–85, 170, and Martti
Koskenniemi, ‘Introduction’, in Koskenniemi, ed., Sources of International Law
(Burlington: Ashgate, 2000), xi–xxviii, xiii–xv.
(2) Articles 31–2 of the Vienna Convention on the Law of Treaties (VCLT) (Vienna, 23 May
1969, 1155 UNTS 331).
(3) See chapter 19 by Ingo Venzke in this volume; Jean d’Aspremont, ‘The Multidimension
al Process of Interpretation: Content-Determination and Law-Ascertainment Distin
guished’, in Andrea Bianchi, Daniel Peat, and Matthew Windsor, eds, Interpretation in In
ternational Law (Oxford: Oxford University Press, 2015), 111–32, 117.
(4) D’Aspremont, ‘The Multidimensional Process’, p. 124; Duncan B. Hollis, ‘The Existen
tial Function of Interpretation in International Law’, in Bianchi et al., eds, Interpretation,
78–110, 86.
(5) I say ‘additional’ because interdependence does not equate to determinacy. Neither
concept fully defines the other; each also depends on an external discipline—e.g., ju
risprudence for sources and hermeneutics for interpretation.
(6) Daniel Peat and Matthew Windsor, ‘Playing the Game of Interpretation: On Meaning
and Metaphor in International Law’, in Bianchi et al., eds, Interpretation, 3–33, 3; Alexan
der Orakhelashvili, The Interpretation of Acts and Rules in Public International Law
(Oxford: Oxford University Press, 2008), p. 2.
(7) Peat and Windsor, ‘Playing the Game’, p. 9 (identifying four ‘sources of meaning’ for
interpretation: namely the authors, the interpreted object, the interpreter, and the rele
vant society); see chapter 19 by Ingo Venzke in this volume (distinguishing purposive ap
proaches to interpretation, most notably those advocated by Myres S. McDougal and
Ronald Dworkin).
Page 15 of 24

(8) Reports of the International Law Commission on the second part of its seventeenth
session and on its eighteenth session, YILC (1966) vol. II, p. 220, para. 8.
(9) Article 31 (1) (a) of the VCLT; Orakhelashvili, Interpretation, p. 288; Andrea Bianchi,
‘Textual Interpretation and (International) Law Reading; The Myth of (In)determinacy and
the Genealogy of Meaning’, in Pieter H. F. Bekker, Rudolf Dolzer, and Michael Waibel,
eds, Making Transnational Law Work in the Global Economy: Essays in Honour of Detlev
Vagts (Cambridge: Cambridge University Press, 2010), 34–55, 34 (textual determinacy
theory ‘still the prevailing paradigm’).
(10) See Richard K. Gardiner, Treaty Interpretation, 2nd edn (Oxford: Oxford University
Press, 2008), pp. 391–3. Nor is it clear that the International Law Commission (ILC)
meant to limit reliance on subsidiary work. Julian D. Mortenson, ‘The Travaux of Travaux:
Is the Vienna Convention Hostile to Drafting History?’, American Journal of International
Law 107 (2013): 780–822, 781.
(11) Gardiner, Treaty Interpretation, p. 189. Although Myers McDougal famously doubted
the VCLT’s capacity to accommodate a purposive approach, Gardiner has shown that
McDougal’s fears were unfounded. ibid., pp. 303–50; see also Myers S. McDougal, Harold
D. Lasswell, and James C. Miller, The Interpretation of Agreements and World Public Or
der (New Haven: Yale University Press, 1967).
(12) See chapter 19 by Ingo Venzke in this volume (regarding hermeneutics). Dworkin
sought to establish guidelines to ensure the ‘integrity’ of the interpreter’s assignment of
meaning. Ronald Dworkin, Law’s Empire (Cambridge: Harvard University Press, 1986),
pp. 243 ff.; see also Ronald Dworkin, ‘A New Philosophy for International Law’, Philosophy
& Public Affairs 41 (2013): 2–30.
(13) Stanley Fish, Is There a Text in This Class? The Authority of Interpretative Communi
ties (Cambridge: Harvard University Press, 1980); Jürgen Habermas, Between Facts and
Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge: MIT
Press, 1996), pp. 222–37; Martti Koskenniemi, From Apology to Utopia: The Structure of
International Legal Argument (Cambridge: Cambridge University Press, 2005) (reissue
with a new epilogue), pp. 597–9.
(14) See Anthea Roberts, ‘Power and Persuasion in Investment Treaty Interpretation: The
Dual Role of States’, American Journal of International Law 104 (2010): 179–225, 188. Ju
rists especially may invoke objective interpretative theories. Richard A. Posner, ‘The Inco
herence of Antonin Scalia’, New Republic (24 August 2012), <https://newrepublic.com/ar
ticle/106441/scalia-garner-reading-the-law-textual-originalism>, accessed 29 August
2016 (‘Judges like to say that all they do when they interpret . . . is apply, to the facts of
the particular case, law that has been given to them. They do not make law.’).
(15) See Koskenniemi, From Apology to Utopia, pp. 531–2. Positivists, such as H. L. A.
Hart and Joseph Raz in particular emphasize interpreting those objects identified as law
even as they acknowledge an innovative capacity for assigning them meaning. H. L. A.
Page 16 of 24

Hart, The Concept of Law, 2nd edn (Oxford: Clarendon Press, 1994), pp. 204–5; Joseph
Raz, Between Authority and Interpretation (Oxford: Oxford University Press, 2009), p.
224.
(16) Dworkin, Law’s Empire, pp. 65–7.
(17) Conversely, interpreting objects not accepted as international law necessitates invok
ing a different field of law. See Benedict Kingsbury, Nico Kirsch, and Richard B. Stewart,
‘The Emergence of Global Administrative Law’, Law and Contemporary Problems 68
(2005): 1–47, 5 (employing the ‘global’ label because the study emphasized a ‘large array
of informal institutional arrangements . . . and normative sources, that are not encom
passed within standard conceptions of “international law” ’.).
(18) Article 38 (1) (d) of the ICJ Statute.
(19) See Draft Articles on the Responsibility of States for Internationally Wrongful Acts,
Report of the ILC on the Work of its Fifty-Third Session, UN GAOR, 56th Session Supp.
No. 10, UN Doc. A/56/10 (2001).
(20) For more, see Hollis, ‘The Existential Function’.
(21) ibid., pp. 87–97.
(22) See Ashley Deeks, ‘ “Unwilling or Unable”: Toward a Normative Framework for Ex
traterritorial Self-Defense’, Virginia Journal of International Law 52 (2012): 483–550
(arguing test exists, permitting victim States to use self-defence against non-State actors
where the State from which the non-State actor operates is ‘unwilling or unable’ to disci
pline their behaviour). The existence of such a rule remains contested. See Monica Haki
mi, ‘Defensive Force against Non-State Actors: The State of Play’, International Law Stud
ies 91 (2015): 1–31, 25–6; Kevin J. Heller, ‘The Absence of Practice Supporting the “Un
willing or Unable” Test’, Opinio Juris (17 February 2015).
(23) Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep
226, 266, para. 105 (2) (E).
(24) Hollis, ‘The Existential Function’, pp. 97–101.
(25) D’Aspremont, ‘The Multidimensional Process’, p. 117.
(26) Dworkin, Law’s Empire, p. 66.
(27) Nuclear Tests (Australia/New Zealand v France) (Judgment) [1974] ICJ Rep 253, 267–
8, paras 43–50; see also ILC, ‘Guiding Principles Applicable to Unilateral Declarations of
States Capable of Creating Legal Obligations, with Commentaries Thereto’, in Report on
the work of its fifty-eighth session (1 May–9 June and 3 July–11 August 2006), UN Doc. A/
61/10, p. 370, Guiding Principle 1; Antonio Cassese, International Law, 2nd edn (Oxford:
Oxford University Press, 2005), p. 184.
Page 17 of 24

(28) See Jean d’Aspremont, ‘The Idea of “Rules” in the Sources of International Law’,
British Yearbook of International Law 84 (2013): 103–30, 111.
(29) Charter of the United Nations (UN) (San Francisco, 26 June 1945, 1 UNTS 16).
(30) Beyond its existential aspects, exposition can serve other functions as well, including
inventive (creating new variations of the law) or relational ones (situating an international
law rule among, above, or below other relevant rules of international law). Hollis, ‘The Ex
istential Function’, pp. 84–6.
(31) Thirlway, Sources, p. 6; see also chapter 12 by Mark Weston Janis in this volume (Ar
ticle 38 is ‘close to being a universal norm’); but see Robert Y. Jennings, ‘What is Interna
tional Law and How Do We Tell It When We See It’, Schweitzerisches Jahrbuch für inter
nationales Recht (1981): 59–88, 60 (questioning the sufficiency of Article 38’s list and
proposing additional candidates); Richard R. Baxter, ‘International Law in “Her Infinite
Variety” ’, International and Comparative Law Quarterly 29 (1980): 549–66.
(32) See chapter 8 by Malgosia Fitzmaurice in this volume.
(33) Gerald G. Fitzmaurice, ‘Some Problems Regarding the Formal Sources of Interna
tional Law’, Symbolae Verzijl (1958): 153-76, 157–8. Fitzmaurice recognized that treaties
could codify law, but denied such cases made the treaty itself law. Accord Ian Brownlie,
Principles of Public International Law, 7th edn (Oxford: Oxford University Press, 2008), p.
513; Thirlway, Sources, pp. 32–3 (noting Mendelson’s different view).
(34) Shabtai Rosenne, Developments in the Law of Treaties 1945–1986 (Cambridge: Cam
bridge University Press, 1989), pp. 182–3; Besson, ‘Theorizing’, p. 169 (noting fading dis
tinction between general and non-general treaty-law); Gerald G. Fitzmaurice, ‘Second Re
port on the Law of Treaties’, YILC (1957) Vol. II, p. 31. I say ‘a’ catalyst to avoid over-
claiming. I am not saying Article 38 launched multilateral, legislative treaty-making;
traités-loi pre-dated the 1920 negotiations that led to Article 38. See e.g., Hague Conven
tion II with Respect to the Laws and Customs of War by Land and its Annex: Regulations
Respecting the Laws and Customs of War on Land (The Hague, 29 July 1899, 32 Stat.
1803). Still, it is hard to ignore treaty-making’s rise so soon after it achieved primary
source status in international law.
(35) Hugo Grotius and Emer de Vattel long ago linked interpretation to treaties, so we
cannot say their listing in Article 38 caused the association with interpretation. See e.g.,
Duncan B. Hollis, ‘Interpretation’, in Jean d’Aspremont and Sahib Singh, eds, Fundamen
tal Concepts for International Law (Cheltenham: Edward Elgar, forthcoming 2017). Still,
like treaty proliferation, the treaty/sources association coincided with a period of rising
attention to treaty interpretation. See e.g., ‘Harvard Draft Convention on the Law of
Treaties’, American Journal of International Law (Suppl.) 29 (1935): 653–1204.
(36) Most interpretation scholarship in international law emphasizes treaties with little-
to-no attention to other objects. See e.g., Gardiner, Treaty Interpretation; Anthony Aust,
Modern Treaty Law and Practice, 3rd edn (Cambridge: Cambridge University Press,
Page 18 of 24

2013), ch. 13; Ingo Venzke, How Interpretation Makes International Law: On Semantic
Change and Normative Twists (Oxford: Oxford University Press, 2012); Malgosia Fitzmau
rice, Olufemi Elias, and Panos Merkouris, eds, Treaty Interpretation and the Vienna Con
vention on the Law of Treaties: 30 Years On (Leiden: Martinus Nijhoff, 2010); Isabelle Van
Damme, Treaty Interpretation by the WTO Appellate Body (Oxford: Oxford University
Press, 2009); Ian Sinclair, The Vienna Convention on the Law of Treaties, 2nd edn (Man
chester: Manchester University Press, 1984), ch. 5; Paul Reuter, Introduction to the Law
of Treaties, trans. José Mico and Peter Haggenmacher (London: Pinter, 1989), paras 138–
48. For notable exceptions, see Bianchi et al., eds, Interpretation; Orakhelashvili, Inter
pretation.
(37) See chapter 8 by Malgosia Fitzmaurice in this volume; Jean d’Aspremont, ‘The Decay
of Modern Customary International Law in Spite of Scholarly Heroism’, Global Communi
ty Yearbook of International Law & Jurisprudence 2015 (2016), <http://papers.ssrn.com/
sol3/papers.cfm?abstract_id=2756904>, accessed 29 August 2016; ILC, Second Report
on Identification of Customary International Law by Michael Wood, Special Rapporteur,
22 May 2014, UN Doc. A/CN.4/672, para. 28; David J. Bederman, Custom as a Source of
Law (Cambridge: Cambridge University Press, 2010), pp. 141–3.
(38) The ILC, for example, continues to focus on identifying customary international law.
ILC, Fourth Report on Identification of Customary International Law by Michael Wood,
Special Rapporteur, 8 March 2016, UN Doc. A/CN/.4/695.
(39) Panos Merkouris, ‘Interpreting the Customary Rules on Interpretation’ (2016),

<http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2749066>, accessed 29 August
2016.
(40) See chapter 8 by Malgosia Fitzmaurice in this volume; Rüdiger Wolfrum, ‘Sources of
International Law’, in Rüdiger Wolfrum, ed., The Max Planck Encyclopedia of Public Inter
national Law (Oxford: Oxford University Press, 2011), <http://opil.ouplaw.com/home/
EPIL>, accessed 1 June 2017.
(41) Indeed, they are a regular part of legal practice. See Harlan Grant Cohen, ‘Theoriz
ing Precedent in International Law’, in Bianchi et al., eds, Interpretation, 268–89, 271.
(42) Today, scholarship is treated as a tool for assigning meaning to other objects rather
than as an object of interpretation itself. For a discussion of nineteenth-century views on
scholarship as a primary source of international law, see chapter 5 by Miloš Vec and chap
ter 13 by Robert Kolb in this volume.
(43) None of which should suggest that the existence of treaties is a given. See Duncan B.
Hollis, ‘Defining Treaties’, in Hollis, ed., The Oxford Guide to Treaties (Oxford: Oxford
University Press, 2012), 11–45; Maritime Delimitation and Territorial Questions between
Qatar and Bahrain (Qatar v Bahrain) (Jurisdiction and Admissibility) [1994] ICJ Rep 112,
121–2, para. 27; Aegean Sea Continental Shelf (Greece v Turkey) (Judgment) [1978] ICJ
Page 19 of 24

Rep 3, 43. Unlike custom and general principles, however, treaties’ existential issues usu
ally lie in the background, calling attention to the expository issues that remain.
(44) ILC, ‘Guiding Principles Applicable to Unilateral Declarations of States’, p. 377,

Guiding Principle 7.
(45) The ILC’s Commentary suggests that this principle is analogous to Article 31 of the
VCLT. But that article is not overtly restrictive and operates in concert with other rules
(e.g., Art. 32). ILC, ‘Guiding Principles Applicable to Unilateral Declarations of States’, p.
377, Guiding Principle 7, Commentary; Luigi Crema, ‘Disappearance and New Sightings
of Restrictive Interpretation(s)’, European Journal of International Law 21 (2010): 681–
700.
(46) Article 5 of the VCLT.
(47) Most IO functions are non-legal—serving as fora for discussion, expertise, informa
tion gathering, monitoring, negotiations, etc.—but some decisions can legally bind Mem
ber States. See e.g., Arts 37, 54 (1), 90 of the Convention on International Civil Aviation
(Chicago Convention) (Chicago, 4 April 1947, 15 UNTS 295); Arts 21–2 of the Constitu
tion of the World Health Organization (WHO Constitution) (New York, 22 July 1946, 14
UNTS 185).
(48) See e.g., Malgosia Fitzmaurice, ‘Modifications to the Principles of Consent in Rela
tion to Certain Treaty Obligations’, Austrian Review of International and European Law
(1997): 275–317, 316–17; Gennady M. Danilenko, Law-Making in the International Com
munity (Dordrecht: Martinus Nijhoff, 1993), p. 192.
(49) See Catherine Brölmann, ‘Specialized Rules of Treaty Interpretation: International

Organizations’, in Hollis, ed., Treaties, 507–24, 518–19 (discussing both views); Vladimir
D. Degan, Sources of International Law (Dordrecht: Martinus Nijhoff, 1997), p. 6; Christ
ian Tomuschat, Obligations Arising for States Without or Against their Will, vol. 241, Col
lected Courses of the Hague Academy of International Law (Leiden: Brill/Nijhoff, 1993),
1–370, 195, 328.
(50) See e.g., Jan Klabbers, Anne Peters, and Geir Ulfstein, eds, The Constitutionalization
of International Law (Oxford: Oxford University Press, 2009), p. 89.
(51) See e.g., Brölmann, ‘Specialized Rules of Treaty Interpretation’, p. 519; Peter J. Kui
jper, ‘The European Courts and the Law of Treaties: The Continuing Story’, in Enzo Caniz
zaro, ed., The Law of Treaties beyond the Vienna Convention (Oxford: Oxford University
Press, 2011), 256–78, 268–270.
(52) Consider, e.g., varying interpretations of the Doha Declaration, including (a) existen
tial denials of its legal validity; (b) applications of the VCLT to its terms; and (c) claims
that it is a source of law directly. James T. Gathii, ‘The Legal Status of the Doha Declara
tion on TRIPS and Public Health under the Vienna Convention on the Law of Treaties’,
Harvard Journal of Law & Technology 15 (2002): 291–317, 299–316; Stephen Charnovitz,
Page 20 of 24

‘The Legal Status of the Doha Declaration’, Journal of International Economic Law 5
(2002): 207-11, 211.
(53) I understand soft law to recast the binary distinction between ‘law’ and ‘non-law’ as
a continuum reflecting degrees of bindingness, ranging from soft to hard. Dinah Shelton,
‘Law, Non-Law and the Problem of “Soft Law” ’, in Shelton, ed., Commitment and Compli
ance: The Role of Non-Binding Norms in the International Legal System (Oxford: Oxford
University Press, 2000), 1–20. For more on soft law’s interpretative impact, see Hollis,
‘The Existential Function’, pp. 99–100.
(54) Jean d’Aspremont, ‘Softness in International Law: A Self-Serving Quest for New Le
gal Materials’, European Journal of International Law 19 (2009): 897–910.
(55) Christine Chinkin, ‘Normative Development in the International Legal System’, in

Shelton, ed., Commitment and Compliance, 21–43, 30–1 (describing soft law’s potential
legal functions).
(56) See Jan Klabbers, ‘The Redundancy of Soft Law’, Nordic Journal of International Law
65 (1996): 167–82, 181; Kal Raustiala, ‘Form and Substance in International Agreements’,
American Journal of International Law 99 (2005): 581–614, 592.
(57) See chapter 19 by Ingo Venzke in this volume.
(58) See Koskenniemi, ‘Introduction’, pp. xii–iii.
(59) On nineteenth-century conceptions of sources, compare in this volume chapter 5 by

Miloš Vec (arguing against any universal views); chapter 12 by Mark Weston Janis (char
acterizing Art. 38 as a ‘paradigm shift’); and chapter 13 by Robert Kolb (suggesting a
‘larger conception of the sources of law’ prevailed).
(60) D’Aspremont, ‘The Decay’, pp. 8–13.
(61) Article 31 of the VCLT; see chapter 48 by Donald H. Regan in this volume (reviewing
VCLT Article 31 (3) (c)’s reference to ‘other sources of international law’). For a discus
sion of subsequent practice and agreements, see Orakhelashvili, Interpretation, p. 291;
Georg Nolte, ed., Treaties and Subsequent Practice (Oxford: Oxford University Press,
2013).
(62) Bruno Simma and Philip Alston, ‘The Sources of Human Rights Law: Custom, Jus Co
gens and General Principles’, Australian Yearbook of International Law 12 (1992): 82–108,
87.
(63) See Reparations for Injuries Suffered in the Service of the United Nations (Advisory
Opinion) [1949] ICJ Rep 174, 182.
(64) Besson, ‘Theorizing’, p. 185 (citing the rule of law for sources’ legality, global justice
for their normativity, and multi-level and pluralist democratic processes for their legitima
cy).
Page 21 of 24

(65) See ibid. (‘sources of international law are the process of self-constitution and con
stant reshaping of that [pluralist international] community’).
(66) See generally Koskenniemi, From Apology to Utopia.
(67) ibid. Mario Prost emphasized alternative unifying frames remain. Mario Prost, ‘All
Shouting the Same Slogans: International Law’s Unities and the Politics of Fragmenta
tion’, Finnish Yearbook of International Law 17 (2006): 131–60.
(68) Roberts, ‘Power and Persuasion’, p. 757; Jörg Kammerhofer, ‘Uncertainty in the For
mal Sources of International Law: Customary International Law and Some of its Prob
lems’, European Journal of International Law 15 (2004): 523–53, 525; see also Hollis, ‘The
Existential Function’, p. 96 (comparing inductive and deductive logics for general princi
ples).
(69) Oscar Schachter, ‘Towards a Theory of International Obligation’, in Stephen M. Sch

webel, ed., The Effectiveness of International Decisions (Dobbs Ferry: Oceana, 1971), 9–
31, 9–10 (reviewing multiple claimed bases of international legal obligation).
(70) Thirlway, Sources, p. 10.
(71) Arnold McNair, The Law of Treaties, 2nd edn (Oxford: Oxford University Press,
1961), p. 365.
(72) Besson, ‘Theorizing’, p. 185.
(73) For example, consent cannot justify treaties as a source of international law without
circular logic, thus requiring an alternative theory for pacta sunt servanda. Thomas M.
Franck, The Power of Legitimacy among Nations (Oxford: Oxford University Press, 1990),
p. 187.
(74) See e.g., Allen Buchanan, Justice, Legitimacy & Self-Determination: A Moral Founda
tion for International Law (Oxford: Oxford University Press, 2004); Fitzmaurice, ‘Some
Problems’, p. 169 (theorizing natural law as a source of international law); W. Michael
Reisman, ‘International Law-Making: A Process of Communication’, ASIL Proceedings 75
(1981): 101–20 (describing policy-oriented ‘New Haven School’).
(75) Dworkin, Law’s Empire.
(76) See Wolfrum, ‘Sources’; Besson, ‘Theorizing’, p. 175; Duncan B. Hollis, ‘Why State
Consent Still Matters—Non-State Actors, Treaties, and the Changing Sources of Interna
tional Law’, Berkeley Journal of International Law 23 (2005): 137–74, 140–4.
(77) See e.g., Andrew T. Guzman, ‘A Compliance-Based Theory of International Law’, Cali
fornia Law Review 90 (2002): 1823–87; Shelton, ed., Commitment and Compliance.
(78) D’Aspremont, ‘Rules’, pp. 121–2. D’Aspremont carefully distinguishes his social theo
ry from a ‘voluntarist’ approach. ibid., p. 115. His seminal work elaborates how social
Page 22 of 24

practice may construct linguistic indicators that represent a process for ascertaining
law’s existence. Jean d’Aspremont, Formalism and the Sources of International Law. A
Theory of the Ascertainment of Legal Rules (Oxford: Oxford University Press, 2008).
(79) D’Aspremont, ‘Rules’, p. 116.
(80) ibid., p. 115.
(81) Venzke, How Interpretation Makes International Law, p. 18.
(82) By authority, I mean grants of permission or power, whether express or implied. For
a discussion of ‘legitimate’ authority in international law, see Samantha Besson, ‘The Au
thority of International Law—Lifting the State Veil’, Sydney Law Review 31 (2009): 343–
80, 351 ff.
(83) Lauri Mälksoo also makes this point in chapter 6 in this volume.
(84) Leo Gross, ‘States as Organs of International Law and the Problem of Autointerpreta
tion’ (1953), reprinted in Gross, ed., Essays on International Law and Organization
(Dobbs Ferry: Transnational Publishers, 1984), 367–98, 386.
(85) Karen J. Alter, ‘Agents or Trustees? International Courts in their Political Context’,
European Journal of International Relations 14 (2008): 33–63.
(86) Louis B. Sohn, ‘Sources of International Law’, Georgia Journal of International and
Comparative Law 25 (1995): 399–406, 399.
(87) Gross, ‘States as Organs’, pp. 386–8.
(88) And, just as ascertaining international law’s sources involves an existential interpre
tation, so too do decisions on the existence of interpretative authority. Hollis, ‘The Exis
tential Function’, pp. 87–90.
(89) Cohen, ‘Theorizing Precedent’, pp. 270–1.
(90) International Covenant on Civil and Political Rights (ICCPR) (New York, 16 Decem
ber 1966, 999 UNTS 171). Human Rights Committee, General Comment No. 24, Issues
relating to Reservations made upon Ratification or Accession to the Covenant or the Op
tional Protocols thereto, or in relation to Declarations under Article 41 of the Covenant,
11 November 1994, CCPR/C/21/Rev.1/Add.6. For (hostile) reactions, see e.g., ‘Observa
tion by the United States of America on General Comment No. 24 (52)’ (28 March 1995)
CCPR A/50/40/Annex VI, 126–29; ‘Observations by the United Kingdom on GC No. 24’ (21
July 1995) CCPR A/50/40/Annex VI, 130–4.
(91) This is not to suggest that States have lost their interpretative or law-making author
ities, but rather that the pie may be expanded to accommodate other actors in both con
texts.
(92) See chapter 6 by Lauri Mälksoo in this volume.

Page 23 of 24

(93) D’Aspremont, ‘Rules’; Harlan G. Cohen, ‘Finding International Law, Part II: Our Frag
menting Legal Community’, New York University Journal of International Law and Politics
44 (2012): 1049–1107, 1057; Hart, The Concept of Law, pp. 94–9.
(94) See Orakhelashvili, Interpretation, pp. 285–6; Gardiner, Treaty Interpretation, pp.
36–8; van Damme, Treaty Interpretation by the WTO, p. 35.
(95) See e.g., Thirlway, Sources, pp. 129 ff; Prosper Weil, ‘Towards Relative Normativity in
International Law?’, American Journal of International Law 77 (1983): 413–42, 421.
Duncan B. Hollis
Duncan B. Hollis, James E. Beasley Professor of International Law at Temple Univer

sity, United States.
Page 24 of 24

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Sources in Interpretation Theories: An Interdependent Relationship

Sources in Interpretation Theories: An Interdependent

Print Publication Date: Oct 2017

Abstract and Keywords

Subscriber: Fundacao Getulio Vargas (FGV); date: 22 February 2020

But is the relationship between interpretation and sources so one-sided? If interpretation

On one level, my claim is straightforward: international lawyers do not simply interpret

Subscriber: Fundacao Getulio Vargas (FGV); date: 22 February 2020

II. Existential Interpretations of International

accommodates the first three theories simultaneously in a ‘crucible’ approach.8 Those

Subscriber: Fundacao Getulio Vargas (FGV); date: 22 February 2020

Existential interpretations are visible across international legal discourse, including

Existential interpretations of international law’s sources are most visible in attempts to

Subscriber: Fundacao Getulio Vargas (FGV); date: 22 February 2020

III. The Range of Interdependence between

Sources and Interpretation

Subscriber: Fundacao Getulio Vargas (FGV); date: 22 February 2020

a. Constructing International Legal Interpretation from the Sources of In­

Nonetheless, adopting Article 38 for the sources of international law assigned

Subscriber: Fundacao Getulio Vargas (FGV); date: 22 February 2020

Subscriber: Fundacao Getulio Vargas (FGV); date: 22 February 2020

b. Constructing Sources Doctrine from International Legal Interpretation

More recently, the VCLT’s fingerprints appear on modern interpretations of international

Subscriber: Fundacao Getulio Vargas (FGV); date: 22 February 2020

Taken together, sources and interpretative doctrines reveal an interdependent dialogue.

2. The Impact of Sources Theory on Interpretation and Interpretative

Subscriber: Fundacao Getulio Vargas (FGV); date: 22 February 2020

A justice-oriented theory of sources may be most attracted to a justice-based theory of in­

Subscriber: Fundacao Getulio Vargas (FGV); date: 22 February 2020

3. The Interdependence of Authorities

Domestic legal systems purport to distribute authority across different institutions.82

Conversely, interpretative authority may structure law-making authority. Gross’s theory of

Subscriber: Fundacao Getulio Vargas (FGV); date: 22 February 2020

IV. Conclusions: Caveats and Consequences in

Subscriber: Fundacao Getulio Vargas (FGV); date: 22 February 2020

That said, I do not mean to suggest interdependence as some sort of inevitable,

progressive expansion of sources or interpretative doctrines. True, we may see an expan­

Finally, my interdependence thesis may be important for generating a normative inquiry—

Subscriber: Fundacao Getulio Vargas (FGV); date: 22 February 2020

Aspremont, Jean d’, ‘The Multidimensional Process of Interpretation: Content-Determina­

Besson, Samantha, ‘Theorizing the Sources of International Law’, in Samantha Besson

Koskenniemi, Martti, ‘Introduction’, in Martti Koskenniemi, ed., Sources of International

Merkouris, Panos, ‘Interpreting the Customary Rules on Interpretation’, (2016), <http://

Subscriber: Fundacao Getulio Vargas (FGV); date: 22 February 2020

Subscriber: Fundacao Getulio Vargas (FGV); date: 22 February 2020

Subscriber: Fundacao Getulio Vargas (FGV); date: 22 February 2020

(16) Dworkin, Law’s Empire, pp. 65–7.

(18) Article 38 (1) (d) of the ICJ Statute.

(20) For more, see Hollis, ‘The Existential Function’.

(21) ibid., pp. 87–97.

(24) Hollis, ‘The Existential Function’, pp. 97–101.

(25) D’Aspremont, ‘The Multidimensional Process’, p. 117.

(26) Dworkin, Law’s Empire, p. 66.

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(32) See chapter 8 by Malgosia Fitzmaurice in this volume.

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(39) Panos Merkouris, ‘Interpreting the Customary Rules on Interpretation’ (2016),

Subscriber: Fundacao Getulio Vargas (FGV); date: 22 February 2020

(44) ILC, ‘Guiding Principles Applicable to Unilateral Declarations of States’, p. 377,

(46) Article 5 of the VCLT.

(49) See Catherine Brölmann, ‘Specialized Rules of Treaty Interpretation: International

Subscriber: Fundacao Getulio Vargas (FGV); date: 22 February 2020

(55) Christine Chinkin, ‘Normative Development in the International Legal System’, in

a. Constructing International Legal Interpretation from the Sources of In

A justice-oriented theory of sources may be most attracted to a justice-based theory of in

progressive expansion of sources or interpretative doctrines. True, we may see an expan

Aspremont, Jean d’, ‘The Multidimensional Process of Interpretation: Content-Determina

(69) Oscar Schachter, ‘Towards a Theory of International Obligation’, in Stephen M. Sch

Duncan B. Hollis, James E. Beasley Professor of International Law at Temple Univer