The non-monopolistic role of international courts and tribunals in designing the rules of recognition of the international legal system

This paper argues that international courts and tribunals, although they have not always been successful in that endeavor, are very instrumental in developing meaningful law-ascertainment criteria necessary to distinguish law from non-law. Indeed, if one espouses a Hartian conception of international law, international courts and tribunals, in their capacity as law-applying bodies, generate the social practice necessary to give a meaning to the rule of recognition of the international legal system. Yet, this paper simultaneously shows that this role of the international courts and tribunals is not exclusive in that international courts and tribunal cannot be deemed to have a monopoly on the elaboration of law-ascertainment vocabulary. Nowadays, a new string of actors also participate in the emergence of the necessary semantics to distinguish law from non-law. International court and
tribunals’ contribution to the clarification of the rules of recognition of the international legal system is supplemented by the social practice of other international actors. It is submitted, however, that this role of international courts and tribunals, although being not exclusive, should be preserved and remain central. This nonetheless requires a greater awareness by international courts and tribunals of the necessity of a consistent use of those formal indicators allowing the distinction between law and non-law.