Judicial Decisions in International Law Argumentation: Between Entrapment and Creativity

Description

This book explores the question of how the multiplication of judicial decisions on international law has influenced the way in which legal findings in international law adjudication are justified. International law practitioners frequently cite judicial decisions to persuade. Courts interpreting international law are no exception to this practice. However, judicial decisions do much more than persuading: they enable and constrain interpretive discretion. Instead of taking the road of the sources of international law, this book turns to the somewhat uncharted terrain of legal argumentation. Using international criminal law as a case study, it shows how the growing number of judicial decisions has normalised courts’ resort to them in legal justification and enabled some argumentative practices to become constitutive of international law. In so doing, it critically revisits the implications of an iterative use of judicial decisions, and reassesses the influence of the ‘judicialisation turn’ on the ways in which the meaning of international law is formed, shaped and reshaped by reference to judicial decisions. Volume 89 in the series Studies in International Law Contents Abbreviations 1. Introduction I. The 'Judicialisation Turn' in International Law II. Arguments III. Legal Interpretation as a Form of Argumentation IV. Scope and Limits of the Book V. Book Outline 2. Courts and the Argumentation of International Law I. A Legal Realist Perspective on Courts II. Discretion in Legal Interpretation III. Courts' Argumentation: Between Logic and Persuasion IV. Governing Judicial Decisions 3. Rethinking Judicial Decisions beyond Formal Architectures I. Genesis and Historical Development of International Criminal Law: A Plurality of Courts II. General Effects of Regime Development III. The Seeds of Universalism IV. National Courts and International Crimes V. Approaching Judicial Decisions in National Adjudication VI. Courts Citing Judicial Decisions: An Interim Evaluation 4. The Entrapment of Judicial Decisions I. Citing Judicial Decisions as a Structuring Device: Incrementalism versus Revisionism II. The Road Towards the Stabilisation of Interpretive Outcomes III. Deferring to the International Acquis: The Role of National Courts in Interpreting 'Protected Group' IV. From Stabilisation to Perfect Alignment of Interpretive Outcomes: The Case of 'Armed Conflict' V. Interim Conclusions 5. Rewriting the Meaning of International Law I. Social Acceptance as a Validator of Correctness: Any Room for Change? II. Departing from the 'Established Jurisprudence': The Case of Genocide III. Revisiting the Concept of 'Unlawful Combatants' IV. Managing the Flow of Arguments through Epistemic Superiority V. Judicial Decisions as 'Persuasive Authority' VI. Authoritative Statements as Knowledge on International Criminal Law 6. Rethinking the Judicialisation Era I. Structural Changes in International Legal Argumentation II. Judicial Decisions as Epistemic Tools in the Argumentation of International Law III. Reassessing the Role of Judicial Decisions in International Law: A Retrospective IV. The Way Forward: A Prospective Bibliography Index