Interpretation Principles of Jus Cogens Principles as Public Order in International Practice

• Author: Claudia Claudia Andritoi , PhD in progress
• Position: Senior Lecturer "Eftimie Murgu" University Resita
• Pages: 96-108

Page 96

1. Introduction

The task of interpretation is represented by the dissolving of the misunderstanding regarding the meaning of judicial norm. "The genesis of error interpretation is double: either through a conscious misunderstanding, either directly. In the first case we speak about the author's fault, most likely about his deviation from the current use of language or the use without an analogy, probably it is always about a fault of interpretation. We can express the entire task [of hermeneutics] and in a negative manner: in any point, the misunderstanding must be suppressed. Because no one can accept a simple misunderstanding [conscious]. If this task is completely realized, a complete understanding must be produce". (Schleiermacher, 2001, p. 41)Page 97

The problem with this type of interpretation results from the fact that the two types of interpretation (the grammatical one, aiming the reconstruction of text meanings starting from the context in which this is written) and respectively psychological (which supposes the intuition of the author's intentions regarding the judicial norm in favour of which this infinite reconstruction is not helped but by the same capacity to consult the historical context, with data gathered in the language) are in a circular manner dependent on each other, thus their dialectics remains a methodological desire based on the conception on the language as a historical environment of life.

It is true that the doctrine has considerably put problems regarding the jus cogens norms as they are defined and how they can be determined. We consider that jus cogens represents the ordre publique on the international arena, but only if the rules of international moral rules are included as being cogens, and in consequence jus cogens could be thus applied to political interests in international relations. (Yearbook of International Law Commission, 1953, p. 155)

2. Particularities of Interpretation Theories from the Anglo-American Area

The purposes of valid interpretation are not entirely oriented towards the recognition of the author's intentions, and the validity criteria, considered acceptability criteria are prescriptions regarding our manner of understanding the judicial norms rapports.

A language semantic autonomy that is inherited by actual radical relativism is not possible only as a reaction to the same common conception over the language used. The challenge in this case is not to establish the initial position, but to completely give up this conception over language in favour of a more detached and permissive one, that is, as pragmatists propose, a conception over language as a tool and the using of these tools in a more or less comfortable manner with contextual and community relevant interests.

Internationalist theories in interpretation can be looked at from the point of view of a general theory of interpretation that sustains at least the fact that the legislator's intentions are necessarily relevant for the interpretation of norms that he creates. Certainly, such a theory of interpretation supposes that these intentions represent inPage 98a great measure the criterion of validity of an interpretation that needs to be based on data offered during the process of its verification.

By distinguishing between understanding and interpretation, the differentiating between the two types of internationalism can be solved because meaning is not built but at a superior level, in the interpretation (in meta-language). The author's intention is real and discovered, but for this it is necessary to build an explanation that can build meaning. But this leads us to a double dependence of the intention meaning, under the shape of stratified constructions of the interpretation levels. Thus, there are more levels of the meaning that correspond to more levels of interpretation:

a) at the first level we find verbal and linguistic sequences, through the grammatical method;

b) at the second level we find the legislator's intentions;

c) at the third level we find effective intentions of the judicial norms;

d) the fourth level sustains a semantic constraint through which the interpreter of the judicial norms is capable of recognizing the legislator's intentions and to follow a certain effect that would transmit in an implicit manner the idea aimed at by the norm author. (Eco, 1992, pp. 27-35)

The concept of customary international law is defined by the Statute of the International Court of Justice (ICJ)¹, in article 38, as being the large and uniform practice of states under the imperative opinio iuris sive necesitatis. The literal meaning of the Statute is "a practice generally accepted by the law", but more authors have developed article 38 from a dialectic perspective. (Custom, 1999) (D'Amato, 1971) (Kontou, 1994) (Rosenne, 1984) (Wallace & Holiday, 2006) (Wolfke, 1993) According to this, a practice generally accepted as law is the proof of a custom, but the vice-versa situation is irrelevant². Judge Manley O. Hudson asPage 99developed for the International Law Commission the demands of art. 38 into five preconditions (Hudson, 1950):

1. Concordant practices of states referring to a type of situation in international relations;

2. Repetition and the continuing of this practice for a period of time;

3. The conformity of that practice with superior norms of international law;

4. A general recognition of this practice by the other states (facultative);

5. The legality of the elements mentioned offered by a legal authority.

On one side, this definition qualifies the normative character of the custom, and in the same time differentiates customary international law from other forms of international law. On the other side, the definition explains how the states can repudiate by their behaviours the rules of customary international law in spite of the fact that the deviations from the norm does not necessarily mean the repudiation of that rule.

For the same case, OCJ has declared in the North See Continental Shelf case that the customary international law is a long and undisputed practice of the states. The frequency and the habitual character are not sufficient for the defining of customary international law, because "comity" also supposes frequent and repeated acts of courtesy (the same situation being valuable for international moral). In the same manner, ICJ has declared in the Lotus case that the abstinence of exercising penal jurisdiction on acts committed on board of boats in international sea represents an international custom "if such abstinence is based on the existence of their consciousness that they have the duty to abstain".

The Rational Choice theory has underlined the fact that nobody showed what types of national actions matter in international state practice. We consider that it is generally accepted the fact that the evolution of international law regarding the delimitation between the domains reserved to states and that of international law will establish which sectors can be considered international states practices in the development process of customary international law.

In any case, I do not agree with the arguments of the two theoreticians that the jurists' writings represent tendentious sources of the customary international law and treaties represent informal sources of customs. Treaties may constitute a source of customary international law for the states that are not parties to the treaties. ThePage 100jurists' writings cannot create customary international law understood as a repeated practice of states, but they may explain or influence it.

Non-compulsory declarations and resolutions emitted by the international multilateral organisms are seen as proves of customary international law, because they explain international behaviours³. It is true...