国际法的不确定性

Indeterminacy of International Law

摘要: 自诞生之日起，国际法就以“无法确定地规范国际事务中的任何事项”作为最大特点，这既是国际法的特质所在，也是多年来其被质疑是否真正是一门法律的根源。国际法的不确定性主要源自其语言不确定性、内容不确定性和实质不确定性。如何理解和克服国际法的不确定性，成为未来国际法学关注的方向。理想的状况是，国际法既能保持其在实践中的灵活性，在解决国际事务中发挥积极的作用，又尽力避免因模糊和不确定导致被滥用的风险，最终实现两者的平衡。目前，学界的普遍认知为，可以使用“解释的共同体”这一概念来解决国际法的不确定性问题。

Abstract: Since its birth, international law has been best characterised by its “inability to regulate with certainty any matter in international affairs”, which is both a characteristic of international law and the source of the questioning over the years as to whether it is truly a law. The issue of legal indeterminacy has been a constant preoccupation of critical jurisprudence and poses a fundamental challenge to traditional international rule of law theory. The indeterminacy of international law stems mainly from its linguistic indeterminacy, content indeterminacy and substantive indeterminacy. How to understand and overcome the indeterminacy of international law has become a direction of concern for international jurisprudence in the future. The ideal situation is for international law to maintain its flexibility in practice and play a positive role in the settlement of international affairs, while endeavouring to avoid the risk of abuse due to vagueness and indeterminacy. How to achieve a balance between the two is perhaps the direction that the academic community should consider when constructing a new theory of the international rule of law. It is now widely recognised that the concept of a “community of interpretation” can be used to address the problem of uncertainty in international law.