Legal Fictions in International Law

: application in and lessons from the law of the sea

Abstract

The core issue that motivated this study is the ability of international law to apply falsities, to maintain discrepancies between the known facts (and physical reality) and the law, that it may consciously treat something as being different to what it actually is. As such, this thesis examines the existence of legal fictions in international law. Hitherto, this phenomenon has not yet been explored as a discrete subject for consideration in international law, in contrast to the wealth of literature dealing with legal fictions in municipal law.

Consequently, this thesis examines three core questions. What is a legal fiction? How and when are they used in international law? And, what makes international legal fictions effective? The thesis identifies two broad categories of fictions in international law: those that are constitutive of the international legal order, and those that facilitate the operation of the rules within the legal order. It suggests we ought to move away from previous, confused attempts to categorise fictions. For it will be argued that the real distinction that ought to be made is between those fictions that are legitimate and effective, and those that are not.

In order to do this, the thesis explores two case-studies of the use of fictions in the law of the sea and critically examines a number of other examples from general international law. From this, the key themes that determine the effectiveness of international legal fictions emerge. It is suggested that, fundamentally, this is determined by the relationship between the fiction and the legal rules affected by its application. If the fiction departs from the purposes of the rules, it is ineffective and, potentially, problematic. But effective legal fictions may assist international justice. It may give effect to the international legal principles, and in a more meaningful way.

Date of Award	1 Oct 2019
Original language	English
Awarding Institution	University of Bristol
Supervisor	Malcolm D Evans (Supervisor) & Eirik Bjorge (Supervisor)