Why Should We Distinguish Between the Exercise of Discretion and Interpretation?
12 Pages Posted: 28 Jan 2019
Date Written: January 16, 2019
The exercise of discretion is a central feature of international legal decision-making. ‘Discretion’, in a loose sense, refers to a power vested in an agent as part of an assignment to make legal decisions. It enables the agent to perform its (or his/her) assignment, while giving it at the same time the possibility to choose between diverse courses of action. This not to say that this agent has the power to act at will. Discretion is a concept applied to a very particular kind of situation, in which an agent is charged with making decisions subject to ”constraining criteria”. In studies of international legal decision-making, occasionally, scholars make no clear distinction between the exercise of legal discretion and legal interpretation. This practice presupposes: (i) that rules of interpretation constrain the exercise of discretion; (ii) that, apart from the rules of interpretation, there is no place for any constraining criteria in international law; (iii) that if it should ever prove meaningful to speak about constraining criteria in international law, then at least rules of interpretation and constraining criteria as functionally indistinguishable. As this article argues, all three assumptions are unfounded. Contrary to what some scholars would seem to believe, in international law, it certainly makes very good sense to make a distinction between the exercise of discretion and interpretation.
Keywords: International Law, Discretion, Interpretation
JEL Classification: K,33
Suggested Citation: Suggested Citation