The fourth chapter offers an intermediate conclusion. Despite all of the criticism dualism and monism have faced, their persistence is remarkable. Both are still referred to in many textbooks, they are present in case law and in scholarly work. Also in practice, many (national) legal orders are still often referred to as being “dualistic” or “monistic.” Thus, there is a need to make the critical points as clear as possible in order to explain why they – as originally conceived – are of no help in answering the question posed by this book. Moreover, the preceding chapter holds that global legal pluralism cannot offer a satisfying normative account for norm conflict resolution between international, EU and national law either. Hence, prescriptive proposals to solve legal conflicts arising from different legal orders on the global plane are better not termed “pluralistic.” Rather this chapter suggests that it is more precise to refer to a necessarily common framework that addresses the question of how those conflicts should be resolved together or at least in a way acceptable to all parties.

This chapter looks at interpretation as a game aimed at persuading an audience and securing its adherence to a given interpretation. Like the other chapters, it analyses certain elements that cannot be traced back to or explained by the rules of interpretation of the Vienna Convention on the Law of Treaties. Its focus is on the broader concepts of persuasion, audience, and interpretive acceptability. It argues that the acceptability (or unacceptability) of a certain interpretation is not inherent in the interpretation itself, but rather hinges on the social environment where the interpretation is articulated or received. This is why the success of a certain interpretation can be measured, to a large extent, by its ability to persuade the relevant audience. The latter, in turn, is dependent on the interpretive authority wielded by the actors involved in the process and on the latent power structures underlying the interpretative game. Interpretation constitutes a fight to speak authoritatively in and for the discipline, a process in which not all voices carry the same weight, and where different interpretive strategies can be framed as tools to control the discursive politics of interpretation in international law.

Building on Derrida’s celebrated analysis of the term ‘supplement’, this chapter investigates the fundamental ambivalence of supplementary means of treaty interpretation. While the general philosophy of the Vienna Convention interpretive regime rests on the assumption of a hierarchy between the primary means set forth in Article 31 of the Vienna Convention and the supplementary means of Article 32, qualifying certain means as supplementary presumes that the primary interpretive means are somewhat lacking and in need of a complement. The chapter also focuses on the ‘danger’ of such supplement that has been highlighted in practice, namely, that supplementary means themselves need to be interpreted before they can be used in an interpretive inquiry, reinforcing the larger point made in the book that it is impossible to get an unmediated access to any signified. The chapter argues that since supplementary means are not comprehensively listed in the treaty interpretation regime, a virtually endless number of materials can be made relevant in treaty interpretation discourse through the channel of supplementary means.

Intentionalism is the least investigated approach to treaty interpretation. It is often discredited by international legal scholars on the basis of various pragmatic arguments. It is also normatively discouraged as a threat to the stability and predictability of treaty rules. At the same time, even a cursory glance at the case law of international courts and tribunals would be sufficient to realize that treaty interpretation discourse in practice is replete with references to the parties’ intention. This chapter situates the reluctance of international legal scholars about intentionalism in the broader intellectual history of international law and shows that most objections to intentionalism rest on a mentalist understanding of intention that has been severely criticized in philosophy. It also argues that given intentionalism’s close connection with consensualism, it is unrealistic to believe that it can be dismissed in practice.

This chapter gets to the heart of why the disciplinary imagination of international law is only able to see deterritorialisation without reterritorialisation, by excavating the content of the orthodox concept(s) of territory and scrutinising the spatial assumptions. For it is how territory is understood that forces the production of aterritorial functionalist account of law. The chapter reviews the standard definition(s) of territory before deconstructing the characteristics and qualities of the concept of territory. These include: that territory is only states’; that territory is imagined in a two-dimensional, flat, jigsaw-like form; that the physical referents are analytically prioritised over the social; that territory tends to be imagined as homogeneous, uniform, and contiguous ; that territory is bound by a particular technology and representation of borders; and that territories are relatively static. The final sections delve into the signification of territory and outline five different uses for territory in the discourse, before exploring how territory has mediated legal theoretical understandings of sovereignty.

Implying rights and obligations that are not explicitly set forth in a treaty is not a technique of treaty interpretation explicitly recognized in the Vienna Convention. But the practice of treaty interpretation supplies numerous examples of interpretively implied consequences of express treaty commitments. This chapter focuses on some of the best-known examples of treaty interpretation based on necessary implications ranging from the theory of implied powers of international organizations to the doctrine of positive obligations in international human rights law. Building on philosopher Robert Brandom’s theory of inferentialism, it argues that what is presented as necessary implications in treaty interpretation are discursively articulated inferential consequences of formal commitments undertaken under the treaty.

In this book I have argued that consent-based monism provides a theoretical foundation for finding a decisive source in a norm conflict situation. It is, however, important to emphasize that I do not intend to offer an absolute and invariable solution which fits any norm conflict arising between overlapping international, EU and national legal orders. In short, consent-based monism aims to give consideration to the complex and divergent structures of international, EU and national law. Consequently, it is important not to limit the scope of the theoretical background of the relationship between international and EU or domestic law by pressing international, EU and national law into the straitjacket of a certain, predetermined legal consequence. The relationship between international, EU and national law does not follow a uniform (political) order – for example, one legal order – yet, nowadays, international, EU and national law are not completely alien to each other.1 This is in sharp contrast to old theories such as dualism and Kelsenian monism, which are considered to be incapable of coping with the major developments in international, EU and national legal orders since the inception of these grand but old theories. This important difference sets consent-based monism apart from still prevailing theories such as Kelsenian monism and dualism. While the predominant stream of global legal pluralism is also restricted when answering the question behind this book as it does not offer a satisfactory normative account, global constitutionalism suffers from major shortcomings too. Global constitutionalism presumes too many substantial values for the envisaged common normative denominator to be a helpful concept for the relationship between international, EU and national law. While global constitutionalism cannot carry the “burden of universality,” with constitutional pluralism we are likely to end up in a “constitutional stalemate.” In contrast to global legal pluralism, which was said to provide for a descriptively but not prescriptively satisfying account, consent-based monism offers a theoretical explanation of the structural relationship between international, EU and national law.

This chapter re-inserts the (rethought) concept of territory into the legal-theoretical framework, offering a look at how this concept can be realised and might differently operationalise concepts such as sovereignty and jurisdiction. Taking the concept of sovereignty first, the chapter operationalises this concept as a bundle of legal rights, duties, etc. informed by legal realist methods and social constructivism. The chapter then turns to the concept of jurisdiction, problematising the ‘boundaries’ of and reterritorialising extraterritorial jurisdiction. The chapter offers an alternative to the ‘ownership’ and ‘exclusive’ model of legal rights, which otherwise has at its core a reified and flat territory. The final part explores actorhood, demonstrating how the spaces of international organisations can be understood as their territories. Taking as its starting point the possibility of territorial pluralism, multiplicity, and continuous (re)production, the chapter ends with an account of territories proliferating rather than diminishing. Taking the idea of reterritorialising seriously, it proposes a legal account of the relationship between actors and their spaces.

There are a number of ways in which time affects treaty interpretation. This chapter examines how a text can be understood, in Roland Barthes’s famous expression, as a ‘weapon against time’ (i.e. a device of stability). In international law, such understanding of a text as a safeguard against change is rooted in the principle of contemporaneity, according to which the terms of a treaty shall be interpreted according to the meaning prevailing at the time of its conclusion. Nevertheless, an exception to this principle has emerged in the form of the doctrine of evolutionary interpretation. This chapter thus looks at the ways in which lawyers navigate the tensions between stability and the perceived need for law to respond and adapt to changing social circumstances and present-day conditions. The chapter then turns to the question of subsequent practice and, more precisely, what should be meant by ‘practice’. It also seeks to illuminate the stakes of the debate about the ultimately rejected draft Article 38 of the Vienna Convention, which provided for the possibility of the modification of a treaty by subsequent practice. Finally, the chapter also broaches the question of the boundary between interpretation, law-making, and the emergence of a new rule of customary international law.

The introductory chapter outlines the need for a rethink of territory. Beneath the surface of international and transnational discourses about globalisation and global governance is a conceptual and theoretical indeterminacy deriving from the, often unperceived, conflicting nature of the spaces of globalisation and the spaces of sovereignty. Where global law and governance are discussed, the old statocentric conceptions of spatiality provide the governing model, dominating such that if there is no state-territory, it is asumed there is no territory at all. There is tension between theories of a system with an overly determined spatial logic to ones without much account of space. There is little discussion about where functions go nor of the logics of the spaces in which they are exercised. The spaces of reterritorialisation are missing. As a result, functions exercised ‘beyond’ state territories appear to ‘float free’ of the highly specific territorialised legal order. Many theories cannot account for reterritorialisation because the territories of non-state actors are invisible to international legal thought because its orthodox spatial imaginary only makes visible state spaces.