Uncertainty in International Law

Kelsen, Legal Normativity, and Formal Justice in International Relations

“…122 Kammerhofer, in his more detailed, doctrinally focused style, puts considerable effort into highlighting the choice inherent in interpretation, casting the Pure Theory as a 'tool for the deconstruction of traditional international legal doctrine', because it highlights the uncertainty inherent in interpretation, 'that can only be filled by adding external elements to positive international law'. 123 Kammerhofer's chapter on interpretation, like his whole book, provocatively deconstructs numerous mainstream understandings, revealing them to often be based on little more than unreflective assumption. 124 Yet Kammerhofer, like Kelsen and von Bernstorff, sees the potential meanings of norms as limited, so that some positions will not qualify as justifiable interpretations.…”

“…71 There is much truth in Kammerhofer's related claim that legal theories cannot be falsified by facts, since legal theory determines its own object, meaning any inconvenient examples can be explained away as non-law. 72 Indeed, the Pure Theory's distancing of law from social fact can be useful in prompting us to think critically about the justification, in terms of formal legal validity, for views that may be routinely accepted. There is, however, a major downside to the Pure Theory's lack of emphasis on sociological factors.…”

“…For example, Kammerhofer argues that the ICJ's interpretation of Article 27(3) of the UN Charter in the Namibia Advisory Opinion -that abstention by a permanent member in a Security Council vote does not signify a veto 125 -does not fall within the frame of possible meaning and is a modification rather than application of the norm. 126 Another, more critical, perspective would insist that because of the possibility of appealing to the underlying purposes of rules, or choosing between various rules and exceptions, in practice any course of action will be able to be defended by 'impeccable legal arguments'. 127 From this perspective, credible legal argument will always be able to produce inconsistent or divergent results and remain reversible.…”

International legal positivism and legal realism

“…If postmodernism is reduced to a radical form of scepticism, one can accept the claim that Hans Kelsen's positivist theory is the epitome of postmodernism. 102 But there are aspects of postmodernism that are far more threatening to the NILP (and NILR) project.…”

Assessing the Feasibility of a Business and Human Rights Treaty

“…49 The content of all legal norms is always positively determined. 50 The basic norm simply makes the cognition of legal norms possible: it is a prism through which norms are discernible. The basis of Pure Theory is a value-free presumption of legal validity necessary for the cognition of a positively-defined legal order as a system of norms, and not a theological ideal with substantive moral content.…”