Integrity and Contestation: Towards an Interpretive Theory of International Norms

In recent years, research on international norms has increasingly shifted its focus from consensually shared norms to issues of contestation. The main question is: how to account for the role that contestation plays for the validity, meaning and application of norms? The paper proposes to combine Ronald Dworkin’s interpretivist legal philosophy with Antje Wiener’s theory of contestation in order to construct an interpretive theory of international norms. The paper discusses the affinities between three different strands of IR theories and their respective ‘counterparts’ in legal philosophy: realist IR theory in combination with legal realism or pragmatism views international norms as inherently ambiguous, so that they cannot create obligation and any decision is to be understood as a policy-choice based on power and state preferences. References to normative or legal standards only serve as rhetorical justification. Rationalist institutionalism combined with legal positivism states that international norms can develop binding force if they are codified with high levels of formal obligation, rule precision and delegation of decision-making to independent bodies that are accepted to issue authoritative judgements. Hence, only consensual rules with fixed and clear meaning create obligations, but in cases featuring ambiguous or contested rules decisions have to be reached from outside of the normative framework through the use of political discretion. Instead, the paper proposes to combine social constructivist IR theory with Dworkin’s interpretive legal theory, which views norms as based on principles that can be reconciled even in contested ‘hard cases’ by way of constructive interpretation. Constructive interpretation entails the construction of a coherent background theory that both sufficiently fits and justifies the ‘point’ of the practice, and the paper argues that such a coherent theory is possible on the international level despite culturally bounded value pluralism, and that it accounts not only for the consensually settled rules of international law but also for contested international norms such as minority protection or self-determination. The argument starts from the assumption that norm contestation is a shared practice within an interpretive community, which means that participants share concepts with regard to their relevance to the practice, but not their meaning, which is essentially contested. Membership in the interpretive community and participation in norm contestation creates associative obligations as long as members are treated with equal concern. As an example, the paper discusses the contested issue of self-determination for national minorities and indigenous peoples as a ‘hard case’ of international norms. To do so, three distinct communities have to be combined in a coherent way: states are conceptualized as political communities establishing equal citizenship and individual rights to gain legitimacy and international recognition. In order to show equal concern in the presence of cultural diversity, states also have to recognize cultural communities. The international community, in turn, has to provide a principled normative framework that is capable of reconciling state rights, individual human rights, and the collective rights of cultural communities to self-determination (not necessarily statehood).