The Systemic Qualities of the International Legal Order

Public International Law Discussion Group (Part II)

Dr Gleider Hernandez, Reader in Public International Law, University of Durham, October 2016 Dr Gleider I Hernández is Reader in Public International Law at Durham Law School and Deputy Director of the Durham Global Policy Institute. Originally from Canada, Gleider took a D.Phil from Wadham College, Oxford, an LL.M degree from Leiden, and BCL & LL.B degrees from McGill. His DPhil, The International Court of Justice and the Judicial Function, was published by the OUP in 2014, and was shortlisted for the Peter Birks Prize. His second book, International Law, will be published in 2017, also by the OUP. Gleider is currently an AHRC Research Leadership Fellow on a project entitled 'Constructing Authority in International Law'. Besides his academic position at Durham, Gleider serves as Junior Faculty with the Harvard Institute for Global Law and Policy and is a Visiting Senior Fellow at the TMC Asser Institute in The Hague. He has previously has been Visiting Fellow at McGill and Amsterdam universities. In terms of practice and consultancy work, Gleider currently serves as Expert on the group of experts drafting the NATO/CCDCOE Tallinn Manual on Cyber Operations in International Law, and has just completed a mandate as Special Assistant to an ICSID investment tribunal. He also served from 2008-2010 as Associate Legal Officer to Judges Peter Tomka and Bruno Simma at the International Court of Justice. He is also a Member of the Legal Action Committee of GLANLaw.org, a non-governmental organisation dedicated to challenging injustice through innovative legal strategy. Finally, nearly a decade ago, he served as the Convenor of the Public International Law Discussion Group of the Oxford Law Faculty, to which he returns with fond memories. Abstract: This paper attempts to understand the authority asserted by certain norm-applying institutions (‘law-applying authorities’ or officials) as part of their practice of responding to situations of indeterminacy in the law. Indeterminacy is explored as but a temporary gap, one which can be resolved through mechanisms of determinability within the legal system. The authority of norm-applying institutions is purportedly defended as necessary for the existence of law and the legal system, but is in fact rooted in social practices that legitimate the exercise of authority through recognition. Such a claim to authority is specifically with respect to content-independent authority, to the extent that it relies on the identity of the law-applying actor, rather than on the substance of the reasoning invoked. There is a circularity in identifying law-applying authorities through reference to the rules of the legal system, yet presuming their existence as a necessary condition for the existence of the legal system. Instead, the answer is partly also to be found in the existence of common discourse rules between various international actors, who together constitute an epistemic community and whose canons, forms of discourse and methods serve to define the practice of international law. It is through this combination of social recognition and adherence to socially-constructed canons and discourse rules that authority in law-application, law-creation and development privilege, over all other priorities, the coherence and authority of the system as a whole.