I. Conceptualizing Reputation

Social relations are at the heart of the practice of interpretation in international law. In a decentralized interpretive practice, stabilization and change are fundamentally social processes, with actors converging around and shifting between various substantive legal positions. Based on these observations, this Article suggests that despite its connotations of sterile rationality, the practice of interpretation is not fundamentally different from any other social practice. In fact, it features many of the same, very mundane, motivations for stabilization and change.

There are good reasons to push the point that interpretation in a decentralized practice like international law is deeply social. Interpretations invariably relate to others; what one state interprets international law to mean says something about how it will evaluate the behavior of other states, to whom the law applies in equal manner.Footnote ⁷⁴ Formal equality before the law fundamentally ties states to each other’s interpretive claims. It forces the interpreter to take note of the perspectives of others who have a stake in the game, and brings the social relationships between states into focus. As sociologist Erving Goffman eloquently pointed out, it is often because of these relationships between actor and audience that actors stabilize their behavior:

His insights on how people manage their expressions in social settings have profoundly influenced the field of sociology. In international law, however, these potentially transformative ideas have remained dormant.

Before transposing these ideas to the practice of interpretation and to collective actors rather than individuals, they require a bit more explanation. Why is it that we, as humans, stabilize our behavior before an audience? The short answer is that this is so because we care deeply about what others think of us. We are attached to an image of ourselves that we consciously and unconsciously cultivate, and we want to see this image reflected in the eyes of others. This self, that we as humans attribute so much meaning to, is the product and object of our reflexive consciousness.Footnote ⁷⁶

Over the last decades, the idea of the self as a deeply meaningful project has found its way into many social science disciplines under different headings such as “self-identity”Footnote ⁷⁷ or “narrative identity.”Footnote ⁷⁸ Such concepts have also been picked up in international relations theory.Footnote ⁷⁹ But while identity has become a central concept in constructivist thought at the international level—with many classic international relations texts recognizing identity as absolutely central—reputation has been markedly absent from it. The reason should probably be sought in the fact that reputation in international theory carries a strong rational choice connotation.Footnote ⁸⁰ Neglecting reputation, however, comes at a steep price for those taking up identity as an explanatory factor for state behavior. They miss the fundamental point that identity and reputation are mutually constitutive.

In the context of international law, Janne Nijman has pointed out that the individual is not the sole author of the self.Footnote ⁸¹ Instead, the self is shaped in the interactions with others, through whose eyes we learn to see and know ourselves as the persons we believe we are. For a positive conception of self, then, we rely fundamentally on the recognition of others.Footnote ⁸² Social psychologist Nicolas Emler insightfully observes that “defining yourself in terms of a social identity is largely a matter of persuading others to so define you.”Footnote ⁸³ Indeed, people seek to find recognition for their identity narratives in others’ opinions of them. Recognition, then, captures the psychological desire that connects identity to reputation. It motivates us to express—idealized versions of—ourselves to others, who evaluate these expressions, form opinions, and collectively construct our reputations. If we want to be human rights defenders, we have to communicate that identity to relevant audiences. Often such an identity truly feels apt only when others recognize us as such.

This is where stabilization kicks in: If we want to impress on audiences a positive image of ourselves, we must consistently project the identity that corresponds to this image.Footnote ⁸⁴ Also states cannot just claim to be human rights defenders and expect to then acquire a matching reputation. It usually requires prolonged, stabilized efforts, for instance through consistently expressing progressive interpretations of human rights instruments. Should these efforts succeed, the state will have acquired a desired reputation. When a desired reputation is acquired, audiences will expect the actor to perform the role that matches this reputation. Their expectations converge around it, and they orient their behavior towards the reputation they ascribe to the actor. This reinforces the pressure for behavioral stabilization: Should the actor violate the expectations of audiences by deviating from its role, the audiences will usually be unpleasantly surprised. Reputation therefore usually presents actors with a twofold motivation to stabilize their behavior: First, acquiring a desired reputation requires the actor to consistently enact the corresponding identity; second, stabilized behavior is necessary to live up to the expectations generated by the acquired reputation. In the process of acquiring reputations through stabilized effort, actors will usually also redefine themselves in line with the reputations acquired,Footnote ⁸⁵ and deeply internalize the accompanying behavioral patterns.Footnote ⁸⁶ This is how reputation and identity mutually constitute each other.

It is good to keep in mind that the stabilization of a single collective interpreter’s interpretations is just one aspect of the stabilization of the interpretive practice. For legal meanings to clearly emerge, there also needs to be some convergence in norm-use between different—communities of—interpreters, so that they do not talk past each other. Section D carves out the important role of reputation in the processes of convergence and divergence in detail.

Reputations are social products. While based on the performances of the actor, they are intersubjectively produced in the interactions within the relational setting in which the actor operates. These interactions may be wholly distant from the actual performances in both time and space, and may very well take place behind the actor’s back. Whereas an actor can largely control a performance and the resulting direct impression, its reputation, therefore, it often cannot. This is not to suggest that actors have no tools available to wield considerable influence over the reputations they acquire; it merely points to the complexities of reputation management, and the non-linear relationship it can have with the accumulation of a reputation.

While actors engage in reputation management, observers are involved in an equally difficult game of reputation construction. The observers and audiences that the actor encounters try to faithfully reconstruct the identity of the actor from the signals they receive. The better this reconstruction—the actor’s reputation—the better the actor’s behavior can be anticipated. But such reconstructions are not always straightforward, for a number of reasons. First, an actor’s identity is often already extremely complex, fragmented, and unstable.Footnote ⁸⁷ This is all the more true for collective actors like states, where various individuals acting on behalf of a state often give off competing signals about the state’s identity.Footnote ⁸⁸ Second, public expressions are rarely authentic expressions of that already complex identity. As Giddens observes with a nod to Goffman: “All human beings, in all cultures, preserve a division between their self-identities and the ‘performances’ they put on in specific social contexts.”Footnote ⁸⁹ Actors indeed consciously and subconsciously manage the way they present themselves to others. It is precisely this phenomenon of reputation management that makes it difficult for observers to reach through the public performances to the authentic identity of the actor. Private beliefs may be hidden in public—a phenomenon known as preference falsificationFootnote ⁹⁰ —and for observers it is difficult to distinguish sincere from insincere expressions.Footnote ⁹¹ We are not very good mind readers, and when we consider states and other collective actors, whose mind are we reading in the first place?

Reputations therefore never perfectly reflect identities. Neither are they objective records of past behavior; they are filtered through the perceptions of observers, and mediated in their discussions. There are gaps in the information about the actor that are filled with (inter)subjective speculation. This is part of the reason why reputation is a meaningful concept; with perfect information on the actor, there would be no use for reputation as an epistemological device.Footnote ⁹² Reputation is precisely also a tool to predict behavior on the basis of imperfect information. Actual behavior may not even be decisive in a reputation’s formation: Reputations may be acquired by mere stereotype or association.Footnote ⁹³ They are therefore not statements of fact, but opinions held by a group of observers simultaneously. Reputation, then, can be defined as an intersubjectively evaluated reconstruction of identity by others.

The mutual constitution of identity and reputation goes almost completely unrecognized in international relations and international law scholarship, with grave consequences for both constructivist as well as rationalist explanations of behavior. For constructivists, their inability or unwillingness to engage with reputation leads them to draw problematic inferences about identity and its relation to the actor’s interpretive behavior. Because interpretations relate to others, the perspectives of these others are usually taken into account. Rarely are interpretations authentic and unfiltered expressions of the self, and some degree of preference falsification is common.Footnote ⁹⁴ There is usually a gap—to some extent filled by reputation management—between stipulating an identity and the actual interpretations that the interpreter adopts. “Predicting” interpretations based on identity is therefore difficult. This also means that “reverse engineering” an identity from a given set of interpretations is equally problematic. One cannot simply infer an identity “human rights defender” from a state’s interpretations of a human rights treaty because the fact that the state will usually think about how it presents itself to an audience will have distorted the interpretation. The point here is not to suggest that reputation is “better” or “worse” for explaining interpretive decisions than identity. Rather, it is to show that the two concepts often cannot be understood in isolation from one another. By going beyond a one-sided rationalist perspective on reputation, this article therefore looks to fill some of the gaps left in constructivist and rationalist thought alike.

The recognition-based conception of reputation illustrated above seeks to bridge the gap, and highlights a fundamentally different side of reputation from the one traditionally employed in international legal theory. This traditional view of reputation has focused heavily on reputation’s “informational” dimension. In such conceptualizations, reputation is a bundle of information based on past behavior used to predict behavior in the future. A good reputation here means that an actor can make credible commitments, and therefore is likely to benefit from cooperation with others. Reputation is then primarily foregrounded as a reason for states to comply with international law; violating international law would undermine a state’s ability to make credible commitments.Footnote ⁹⁵ But, as suggested above, a reputation is more than just a tool to signal we are trustworthy partners for cooperation. It is also something we take pride in, an end in itself.Footnote ⁹⁶ Actors thus strive for specific reputations to fulfil their desire for recognition. This diversifies reputations, as it is not just about a binary “good” or “bad” reputation, but also about being, for instance, “independent” or “political,” a “human rights defender” or a “tough guy.”Footnote ⁹⁷ This Article suggests that a conception of reputation that takes on board both dimensions, reputation as information and reputation as recognition, is the most convincing.Footnote ⁹⁸ While it sacrifices the easy to apply rational choice conception of reputation, this conception is better attuned to the complexities of real-world social interactions within international legal practice—which the rational choice conception never really seems to be able to capture.

II. Reputation and the Collective Actor

Much of what I have written above deals with individuals. While reputation is an important motivation for human behavior, can we simply attribute it also to the collective actors like states that this Article focusses on? International relations theory and international legal theory seem to suggest we can: Reputation has, in these fields, firmly been established as an important explanatory component of state behavior in relation to international law. Yet, the underlying understanding of reputation in this picture is almost exclusively based on its informational dimension.Footnote ⁹⁹ It is easy to see how reputation can have this informational role, also for collective actors. In fact, much—if not most—scholarship on reputation deals with collective actors like corporations, not individuals.Footnote ¹⁰⁰ The underlying rationale is simple: Collective actors, whether corporations or states, acquire reputations, which other actors rely on when they interact with them. The fact that these collective actors in turn have good reasons to “manage” their reputations so as to acquire the informational benefits from having a good reputation is fairly undisputed. The people acting on behalf of collective actors therefore take the informational benefits of reputation into account.

But what about reputation as a desire for recognition? How does this psychological motivation travel from the human beings that experience it to the collective actors like states that this Article focusses on? A first path via which reputation as a desire for recognition enters a collective actor’s decision-making process is through the personal reputations of decision-makers themselves. These personal reputations are to a large extent connected to and shaped by the decisions they make on behalf of the collective actor they represent.Footnote ¹⁰¹ When the former U.S. ambassador to the UN, Mr. Wadsworth, was informed by the Secretary of State that he would have to defend an interpretation of self-determination in the 1960 General Assembly that he strongly disagreed with, he was “shocked and disheartened.”Footnote ¹⁰² “Our failure to support this resolution,” he argued, could “seriously weaken [the] record of US positive stand on colonialism.”Footnote ¹⁰³ Both his personal reputation and that of the United States were bound to suffer. As Ambassador Chelli of Tunisia noted, after the U.S. position was outlined in the Assembly, the “US claims to be [a] champion of liberty but [the] truth is in [the] vote. ‘Who will believe Mr. Wadsworth after this.’”Footnote ¹⁰⁴ Decision-makers therefore usually think twice before voicing an interpretation that they believe may well undermine personal and collective reputations. Conversely, of course, decision-makers are usually proud to be associated with acts that increase the reputation of a state: One of Obama’s first acts when he took office was to rescind the Torture Memos,Footnote ¹⁰⁵ which undoubtedly was warmly welcomed by many audiences across the world. This mechanism via which reputation as recognition features as a motivation in a state’s decision-making I take to be fairly obvious.

The second avenue is less straightforward, but at least as powerful. Certainly, states are abstract entities that do not experience human emotions. Nevertheless, precisely as abstract entities, they rely heavily on credible and convincing stories to bind people to their cause. These stories need to be communicated by decision-makers on their behalf. An effective decision-maker therefore factors in the fact that people attach meaning and self-worth to the collective enterprises they engage in; whether that is their state of nationality, the university they were educated, the cooperation they work for, or the football team they support. Through these collective actors, people vicariously seek to fulfil their own desires for recognition and self-esteem.Footnote ¹⁰⁶ If the collective actor’s reputation is undermined by inconsistencies or repeated failures, their own sense of pride often suffers.Footnote ¹⁰⁷ It might lead these individuals to renounce their association with the collective actor—or the ones responsible for its decisions—undermining the collective endeavor. The meaning people attribute to a collective actor is therefore difficult to ignore for the people making decisions on its behalf.Footnote ¹⁰⁸

Interpretations of international law are, for various reasons discussed in Section C.III. below, eminently powerful and effective ways to communicate meaningful stories about the state to important audiences. It allows decision-makers to take firm control over the narratives surrounding the state. By making use of legal instruments, they can make a long-term impact on an otherwise fragmented and often fluctuating political organization like a state. This gives off a particularly strong signal to important audiences. People making interpretive decisions on behalf of collective actors therefore often ask themselves questions such as: What does this picture us to be, and is that who we want to be? When answering such questions, both the informational and the psychological dimension of reputation usually play a role.

Harold Koh certainly considered this when he called for “revising [the United States’] legal position to recognize some application of the ICCPR to U.S. conduct abroad,” arguing it would “significantly advance our international standing and reputation for respect for the international rule of law, which are primary commitments of this Administration.”Footnote ¹⁰⁹ He uses very similar wording to also argue that the United States should change its interpretation of the geographic scope of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), identifying reputation as the primary underlying rationale: “Most importantly, it would allow the United States to reassert our global standing and leadership in our commitment to humane treatment.”Footnote ¹¹⁰ Reputation’s recognition aspect, which is referred to with a closing of the gap between “commitments of this Administration”—identity—and its “international standing and reputation” —being recognized for that identity by acquiring the matching reputation—is perceived to be important.Footnote ¹¹¹ But also reputation’s informational dimension is present in Koh’s reasoning. Regarding the ICCPR, he argues that “allies may themselves be unable to engage in cooperative activities with the United States if they perceive that our legal obligations and policies diverge significantly from their own fundamental human rights obligations in extraterritorial contexts”;Footnote ¹¹² in the CAT memorandum, he argues that “[o]ur isolation has hobbled our cooperation with those allies in important respects.”Footnote ¹¹³ International legal practice is replete with such arguments. It shows that collective actors—much like individuals—“care” about their reputations through the people making decisions on their behalf. Interpretations are particularly effective ways for these actors to express (idealized) identities in the hope of finding recognition in the eyes of others, as the next section shows. Acquiring such reputations usually offers both psychological—for the people associated with the collective actor—and informational rewards.

III. Reputation and Interpretation

Given the sheer amount of research into both interpretation and reputation in international law, it is rather surprising that their overlap has not yet received more systematic attention in scholarship.Footnote ¹¹⁴ This is all the more so given that international law’s primary attraction in international relations lies in its purported function as a universal, supposedly objective reference point for the evaluation of behavior.Footnote ¹¹⁵ International legal discourse indeed mostly revolves around actors justifying and criticizing each other’s behavior with reference to international law,Footnote ¹¹⁶ precisely because by abstracting from concrete reality, law appears to take out the subjectivity of judgment and thereby to offer a neutral yardstick. Because law is indeterminate in the abstract, however, choice and judgment are always there, and no such objective reference points exists.Footnote ¹¹⁷ It is often through self-serving interpretations of the law, then, that actors express themselves and evaluate each other. By invoking the supposedly universal standard of law, they can effectively substantiate their opinions of one another. Through such repeated encounters and the talk surrounding them, these opinions turn into reputations. To briefly sum up these connections between international law, interpretation, and reputation: as a universal reference point for evaluation, international law is the central yardstick based on which actors intersubjectively construct reputations of each other on the international plane; interpretation connects specific types of behavior to verbal evaluations,Footnote ¹¹⁸ and is thus one of the primary means by which the game of reputation management and construction is played.

While for the interpreter both the psychological—recognition-based—and informational dimension of reputation are important, observers use reputations primarily for informational purposes. For them, reputation is a heuristic device to predict the behavior of an actor, judge its trustworthiness, and so forth.Footnote ¹¹⁹ Observers try, as accurately as possible, to reconstruct the identity of the actor through the signals they receive. The more accurate and meaningful these pieces of information are, the more effective the observers can anticipate the interpreter’s behavior. Legal interpretations are particularly important signals because they indicate strong commitments to the views expressed. As indicated above, international law durably distributes all sorts of ideational and material stakes for states and other actors.Footnote ¹²⁰ In situations of self-interpretation, where the state interprets a norm of international law that applies to itself, interpretations are therefore full of relevant information about the state’s interests, preferences, values, and beliefs. They speak to the ways in which the state would like to see the world organized, and often carry more expressive potential than mere actions or specific policies. Whereas actions are single events and a policy may be changed at will, interpretations reflect a durable commitment to put the expressed views into practice. Kratochwil captures it poignantly when he writes that “[w]hile we speak of a violation of legal rules, policies are not violated but ‘changed,’ exactly because the discretion allowed makes implementation usually solely a matter of the unilateral utilitarian calculus of the actor.”Footnote ¹²¹ Interpretation, then, is a radically expressive act. It conveys important and durable information about the interpreter.

The claim that interpretation is radically expressive is not trivial. It seems to stand at odds with an idea that lingers for instance in the works of many critical legal theorists, which suggests that interpretation is almost its exact opposite. These scholars argue that interpretation obfuscates moments of choice, blending out the expressiveness of politics: Interpretations are presented as universally “correct” positions on the meaning of law, and the particular bias underneath is thereby denied.Footnote ¹²² In this sense, interpretation is a hegemonic act that seeks to universalize a particular political position by veiling the moment of choice.Footnote ¹²³ At the same time, the interpreter absolves itself from criticism: The interpretive conclusion is pictured not as a choice, but as the necessary result of a decision made elsewhere.Footnote ¹²⁴

As true as this is descriptively—reading through many interpretations, this is exactly what they seem to do—this perspective may also be deceptive if it is to deny any expressive force to interpretations, or to imply that there are no consequences attached them. Because whether or not the interpreter’s audiences fall for these legal techniques, they nevertheless do take interpretations as particularly strong expressions of commitment to certain values, beliefs, interests, and so forth. Certainly, legal interpretation may be an effective technique for an interpreter to redirect the blame from itself to the legal rules that actors within the international community collectively entered into. But if the interpreter implies it has no choice in the matter, it may actually make its substantive commitment expressed in that interpretation that much stronger: Apparently the interpreter believes it is not up to itself to change it. From an observer’s point of view, this is valuable information for the construction of a reputation: There are then very good reasons to expect that the interpreter upholds these commitments and carries them into practice.

Because audiences pay close attention to legal interpretations that are loaded with information about the interpreter, the interpreter itself wields considerable influence over its reputation by carefully managing its interpretive expressions. It may anticipate the opinions of important audiences, and adjust its interpretations accordingly. In his memorandum on the geographic scope of the ICCPR, Harold Koh puts a particularly strong emphasis on the expressive potential of legal signals for the construction of a reputation. To claim that the United States adheres to human rights standards outside of its territory as a matter of policy is simply not as convincing to important audiences as doing so out of a sense of legal obligation:

Koh concludes that while “[a]dopting the sounder legal interpretation need not require a dramatic change in our actual practices abroad,” the United States “should receive significant credit in the international community for finally acknowledging that certain of our activities outside [the] United States are subject to international legal obligations, and not just policy constraints.”Footnote ¹²⁶

In the memorandum on the scope of CAT, Koh is yet more explicit about the reason why legal signals are more convincing than mere policy preferences: “[C]ontinuing to deny that the United States recognizes these commitments as legal obligations under the Convention leaves us vulnerable to the charge that we are not bound by them, and that we could change these policies adversely at any moment.”Footnote ¹²⁷ If the United States wants to be recognized as the “human rights defender” it claims to be,Footnote ¹²⁸ Koh argues, it must convincingly reassert this identity to its audiences, otherwise the “perception that the United States is continuing to preserve its ‘freedom’ to commit or condone mistreatment would severely undermine our reputation.”Footnote ¹²⁹ This, Koh argues, can only effectively be done through legal interpretation. It is precisely because legal interpretations express durable and relatively stable commitments that they are such effective tools for self-presentation and reputation management. He argues that even though “[p]ublicly acknowledging that the basic principles of humane conduct that we are already committed to pursuing reflects our legal, and not merely policy, commitments would require no change in current U.S. conduct,” it would therefore still “attract international approval for adopting responsible legal positions, facilitate the ability of our closest allies to cooperate with us …, and allow the United States to demonstrate global leadership on one of the most basic human rights: freedom from torture and cruel, inhuman or degrading treatment or punishment.”Footnote ¹³⁰

Two points deserve to be reiterated briefly here. First, it is worth observing that a concern with identity by itself fails to convince. The proclaimed identity of the United States as a human rights defender only really seems fitting if it is recognized by others. Being—or wanting to be—a human rights defender is usually not enough as a motivation for action; being seen as a human rights defender is often at least as important. Therefore, it is the connection between identity and reputation that is crucial. It speaks to the reasons why the rationalist conception of reputation and the constructivist notion of identity are insufficient. Second, both reputational dimensions seem to go hand in hand for Koh. It is not only the approval and recognition that is important, but also the informational dimension to “facilitate the ability of our closest allies to cooperate with us.”Footnote ¹³¹

It should be clear by now that reputation and interpretation are closely connected. The interpretation of international law in practice involves much more than a cold doctrinal analysis. In situations of self-interpretation, interpreters are not impartial third parties who give their “expert” opinion about what they think the most “rational” interpretation is—as judges supposedly do—but the actual participants in the struggle over international law, which holds important stakes for them. Here, specific interpretive positions are often of major importance to the interpreters, and therefore hold much information about the positional interests, identities, and worldviews of the interpreters that espouse these legal claims. Audiences heavily rely on the interpreter’s interpretations to construct reputations. Interpreters know this, and use interpretations to effectively present themselves to others. For abstract entities like states, interpretations are particularly powerful tools to craft and communicate their stories. They may draw on a whole range of interpretive techniques to acquire their desired reputations. Interpretation under the spell of reputation can be captured in the fundamental dynamic of expression and evaluation, where interpreters—consciously and subconsciously—present themselves to others in the interpretations they adopt, and are in turn evaluated on the basis of these interpretations by their audiences. It is in this dynamic, the next section argues, that interpreters come closer together, and interpretations often change, converge, and stabilize as a result.

I. The Fluidity of Practice: Reputation and Diversity

International law has been many things to many people. For compliance theorists, it is the impact of law on state behavior that has been the central focus. Here, reputation was proposed as a particularly important pull towards compliance: If an actor violates international law, its reputational capital diminishes, and thereby its ability to make credible commitments in the future.Footnote ¹³² But by focusing on the compliance decision and disregarding substantive engagements with law’s content, compliance theory tends to obscure a fundamental reality of legal practice: Law requires interpretation. Law is not determinately black or white, and the demarcation between compliance and violation is therefore often not immediately clear.Footnote ¹³³ Before the 1960s, for instance, the legal meaning of self-determination in the UN Charter was terribly unclear.Footnote ¹³⁴ It was therefore difficult to tell what it actually required of states: Was it lawful for the European colonial powers to withhold independence from colonial peoples? Surely, that would have depended on who had been asked.

This seems to pose a fundamental problem for compliance theory: If there is no clear boundary demarcating the legal from the illegal, an act of compliance cannot be distinguished from a violation of international law, and straightforwardly distributing reputational consequences for “trustworthiness” becomes an impossible task. But by narrowing the role of reputation to compliance with legal rules, these theories have sold its role significantly short.Footnote ¹³⁵ For even though international law may be indeterminate or vague, actors nevertheless have strong opinions as to the meaning of its rules, and the ways they connect to concrete behavior.Footnote ¹³⁶ To make sense of these opinions, we need to go beyond the legal/illegal binary and the corresponding reputational binary of trustworthy/untrustworthy that compliance theory has traditionally centered on. Instead, both law and reputation should be conceptualized as fluid and dynamic. A specific interpretation of self-determination in the 1950s would not necessarily have been judged as being “correct” or “incorrect,” because self-determination’s legal meaning was still vague and unsettled,Footnote ¹³⁷ but as “colonialist” or “anticolonialist,” or as progressive, traditional, or conservative. The underlying idea here is that even though the meaning of a rule is clearly open to various interpretations, choosing one of those interpretations still gives audiences meaningful information about the interpreter.Footnote ¹³⁸

Reputation, then, becomes a much more fluid concept in the practice of interpretation.Footnote ¹³⁹ What reputations states seek to acquire is contextual and rarely limited to “good” and “trustworthy.” In fact, different states often prefer different reputations. One state may want to be perceived as a defender of human rights, while another prefers being seen as fiercely defending the interests of its own citizens at the cost of the human rights of others. The open language of international law offers these interpreters a chance to express multifaceted ways of being in search of recognition.Footnote ¹⁴⁰ It is only by taking the recognition-based dimension of reputation on board that one can truly understand the pull of this perspective. Actors want to have their identity narratives recognized by others in the form of desired reputations,Footnote ¹⁴¹ and law offers them a particularly effective tool to convincingly convey their character to important audiences through interpretations.

Their discretion is significant. Widely shared interpretations are rarely very concrete, because when all discretion is closed down, some preferences are left out, and critique is more likely.Footnote ¹⁴² Interpreters therefore have considerable space to tinker with the finer points within a broader consensus, and room to express their own narrative identities in search of recognition. But as identities rely on recognition, authentic self-expression through interpretation is usually limited to those areas where such expressions at least fit within a set of recognized (sub)cultural narratives so that they are shared by at least some relevant others.Footnote ¹⁴³

By evaluating interpretations, forming opinions, and constructing reputations based on them, audiences hold interpreters to account. They evaluate the interpretations of others against their own interpretations of the law. From this perspective, the struggle for recognition in the practice of interpretation emerges as a constant dynamic between expression and evaluation; with interpreters consistently trying to convince others—through their interpretive expressions—to see them as they desire to be seen, observers evaluating these expressions and constructing reputations based on them, interpreters reacting to these evaluations by (re-)expressing adjusted interpretations in search of a “better” reputation, and so on.

The virtues of international life are contested in this dynamic. The interpreter that succeeds in establishing its interpretation as the dominant one imposes its particular “way of being” on others via law’s universalizing effects.Footnote ¹⁴⁴ That is, because international law is the primary reference point for the evaluation of behavior on the international plane, dominant interpretations authoritatively outline what virtuous behavior is.Footnote ¹⁴⁵ Interpretation under the spell of reputation involves an intricate balance between conformity and deviance, between accommodating the perspectives of others and reshaping the constraints that these perspectives impose. It forces actors to reckon with the structural constraints of living up to the opinions of others, but does not strip them of their agency.Footnote ¹⁴⁶ The historical struggle of Third World States wanting to liberate themselves from, while at the same time having to conform to, the Western image of a “Civilized State” may be seen as an enduring expression of this interplay.Footnote ¹⁴⁷ There may be moments of relative stability, where dominant “ways of being” are relatively stable, and others where such hierarchies are disrupted, and where what was once “deviant” becomes “normal.”Footnote ¹⁴⁸

To better understand this complex and fluid practice of interpretation under the spell of reputation, it helps to have a more concrete look at how interpretations are evaluated. The audiences that evaluate an interpretation, just like the interpreter that expresses it, never enter the legal debates behind a veil of ignorance. Even beyond their background understandings that makes actors read texts in specific ways,Footnote ¹⁴⁹ they often have preferences and interests attached to certain legal rules that shapes their preferred interpretations. That means that even when a rule is indeterminate in the abstract, actors already have either some interpretations that come naturally to them, or preferred interpretations that align with their interests and/or preferences.

An interpretation that comes naturally to a particular interpreter carries certain expectations about the behavior of each norm addressee.Footnote ¹⁵⁰ When a state naturally interprets the geographic scope of the ICCPR expansively, it also expects other state parties to apply the ICCPR beyond their territory. When another state violates this expectation, a bad opinion forms.Footnote ¹⁵¹ In a situation of significant ambiguity, for example when a new treaty enters into force and the meanings of its provisions have not yet stabilized, interpretations hardly resemble expectations. A state party may well know that others interpret the rules differently. Rather, interpretations—in such situations of flux often formed more reflectively rather than naturallyFootnote ¹⁵² —then often express preferred behavioral patterns: Interpretations that seek to get the law on the side of the interpreter.Footnote ¹⁵³ For example, the anticolonial states expressed a progressive interpretation of self-determination as a right to independence that they felt should be adopted, knowing full well that other interpretations were possible and pervasive among other states.Footnote ¹⁵⁴ Either way, the result of a violation of such interpretations is similar to a violation of those interpretations that come naturally and resemble expectations: A bad opinion is formed. Seen in this light—and whether they be expectations or opinions—interpretations represent normative reference points to which reputational sanctions and rewards are attached. As such, interpreters usually do well to take interpretations of others into account, lest their reputation may suffer.

Many norms of international law are subjected to a variety of different interpretations by a variety of states. By consequence, interpreters often have to navigate complex webs of socially consequential interpretive reference points. Koh explicitly does so in his memorandum on the ICCPR. He acknowledges that multiple interpretations of Article 2(1) are defensible. Indeed, various actors have interpreted this provision in a variety of ways. Koh suggests that it is therefore prudent to look beyond the rule, towards the interpretations that important audiences have adopted. He finds that “a ‘strict territorial’ interpretation” would not be “an accurate predictor of how authoritative interpreters, our allies, and other important interlocutors will likely evaluate the United States’ legal obligations.”Footnote ¹⁵⁵ The traditional territorial interpretation of the United States has indeed been problematic from this perspective, Koh notes: “The prior administration was severely criticized in U.N. fora, by important U.S. allies, by members of Congress, by domestic and international human rights groups, and in the domestic and international media.”Footnote ¹⁵⁶ While Koh certainly does not suggest the United States should blindly follow the interpretations espoused by these important audiences, they do guide his proposed interpretation.

Reputational considerations thus force interpreters to meaningfully engage with and incrementally (re-)orient their own interpretive behavior towards the interpretations of important others, in search of recognition. This is, I suggest, one of the key mechanisms that explains the convergence and stabilization of interpretations between different—communities of—interpreters in international law. A hypothesis may be formulated that the more reputational sanctions and rewards are attached to an interpretation, the more interpreters will gravitate towards it, and the more likely it is to eventually be accepted as an authoritative statement of the law.

As interpreters gravitate towards the positions of others in search of desired reputations, another problem emerges: Collective actors like states have many different audiences, and it is near impossible to do well in the eyes of all of them at the same time. A single interpretation of self-determination in the 1950s would have evoked very different reactions among the Western colonial powers, the Soviet states, the former colonies, and the people within colonial territories themselves. How do interpreters manage the diversity of opinions? To some extent, they can foreground different parts of their identity in different settings and tailor their performance to the specific audience. But legal interpretations often only serve the interpreter’s purposes when they are expressed publicly in order to convince others. And in the world of international law, publicly expressed interpretations usually spread through various channels from one audience to another, making it extremely difficult for states to compartmentalize their reputations.Footnote ¹⁵⁷ They therefore need to express at least a relatively consistent and coherent image of themselves through the interpretations they adopt across different settings. Should they not, they run the risk of acquiring a reputation for being untrustworthy, incoherent, and insincere.Footnote ¹⁵⁸ It means that interpreters like states have to make choices in the images that they portray through their interpretations: They cannot just be anything anywhere.Footnote ¹⁵⁹ To reduce complexity, it is often easier for actors to stay close to their identity narratives in the interpretations they express. This avoids an uncomfortable gap between these narratives and the reputations they acquire,Footnote ¹⁶⁰ and offers a path towards projecting a relatively consistent image.

Nevertheless, reputation management amidst a variety of audiences is a challenging task. If an interpretation resonates with some audiences but not with others, choices between these audiences sometimes must be made. To make sense of these discrepancies, interpreters often look beyond the rule to be interpreted towards the audiences with which specific interpretations resonate—as Harold Koh did when he advised the U.S. government on the ICCPR. This allows them to reflect on the reputational sanctions and rewards—in terms of both recognition and information—of the interpretations they adopt. Reputation as an informational device emphasizes the material value of relationships with other actors. Having a good reputation among important audiences makes future cooperation with those audiences more likely.Footnote ¹⁶¹ Conversely, an interpreter that adopts interpretations that do not conform to those of certain audiences may lead those audiences to suspect that the interpreter does not share similar values or interests and is therefore unwilling or unable to effectively cooperate with them.Footnote ¹⁶² Reputation as recognition foregrounds the psychological aspect of the relationships with audiences. The recognition that interpreters get from having a desired reputation among important audiences feeds into their self-esteem, and they will often experience a feeling of pride when they recognize themselves as “virtuous” actors in the eyes of important others.Footnote ¹⁶³

While both dimensions of reputation usually point in the same direction,Footnote ¹⁶⁴ they need not necessarily. For example, many states in the Global South have caved to the reputational pressure of having to appear attractive to Western investors, sometimes at the cost of an appearance as a defector among close allies.Footnote ¹⁶⁵ Whereas they may therefore have benefitted from an influx of capital, the fact that this shift was viewed as a defection by close allies may have undermined the sense of self-identity as a result of a deteriorating reputation in this group.

II. Who Wins? Drivers of Interpretive Stabilization and Success

The indeterminacy of international law in no way warrants the conclusion that each proposed interpretation has equal chances of succeeding in legal practice. No matter how much possibilities for different readings international legal texts offer, some interpretations carry more serious social consequences than others. Power and authority relations between interpreters have a significant role here. Because it is usually more attractive and rewarding to be well-regarded by the powerful than by the weak, the interpretations of the powerful carry greater consequences. Should an interpreter diverge from these interpretations, it runs the risk of acquiring an unfavorable reputation in the eyes of the powerful actors that have embraced these interpretations. In this sense, reputation can be understood as a particular operationalization of variables like power and authority that introduce a hierarchy between the formally equal interpreters: It is partly through reputation as a motivation for action that power and authority find their way into the interpretive process.Footnote ¹⁶⁶ Because the impact of reputational sanctions and rewards attached to interpretations corresponds to some extent to the combined power and authority of those who embrace these interpretations, the unequal relations between interpreters spill over into legal interpretive debates via reputation.Footnote ¹⁶⁷

Authority and power clearly have an impact on the informational dimension of reputation. A good reputation among powerful audiences is an informational advantage in securing the beneficial cooperation with these actors. When a powerful actor espouses an interpretation, it is therefore usually attractive to orient interpretive behavior towards it for reputational reasons.Footnote ¹⁶⁸ The same is true for the interpretations of authoritative actors. Here, it is not so much that a good reputation among authoritative actors itself offers highly beneficial cooperation; that an international court has a good opinion of a state does not necessarily offer that state any direct opportunities for attractive trade deals and so forth. Rather, it is the fact that other actors—like states—look towards these authoritative actors for guidance. Hence, when an authoritative actor adopts a certain interpretation, it is the belief that what the authority says will be accepted by others that induces actors to adhere to its commands.Footnote ¹⁶⁹ It multiplies the reputational effects of the pronouncements of authoritative actors: Deviating from such an interpretation may lead an actor to incur reputational damage not just from the authoritative actor, but from all others that follow its commands. This partly explains why authoritative interpretations are so powerful in legal practice.Footnote ¹⁷⁰

Power and authority also have an impact on reputation’s psychological dimension, as there is usually additional prestige involved in being well-regarded by powerful and/or authoritative actors. This observation is corroborated in social psychological research, which suggests that these and other factors can profoundly influence the impact of reputation (and mechanisms akin to it) as a psychological motivation for action.Footnote ¹⁷¹ Based on this research, Goodman and Jinks argue that also collective actors are more likely to conform to group norms when the (1) importance of the group for the actor increases—and here power and authority have a role, (2) the actor’s exposure to the group increases, and (3) the size of the group increases.Footnote ¹⁷² Goodman and Jinks suggest that these dimensions are factored into a collective actor’s decision-making via pressures that are akin to the psychological side of reputation.Footnote ¹⁷³ Together, then, reputation’s informational and evaluative dimension usually provide a motivation for interpreters to conform to the interpretations of important others.

With this in mind, the contours of processes of stabilization and change under the influence of reputation emerge. From this perspective, interpretive practice is a constant dynamic of expression and evaluation. The evaluative dimension of interpretation provides a structuring force: Actors hold each other to account through the evaluation of the interpretations of others against their own, and by constructing reputations based on these evaluations. Particularly the evaluations of the powerful, the authoritative, and/or the many count heavily. Wanting to be well-regarded by these groups, interpreters therefore often—incrementally—orient their own interpretations towards the interpretations held by these groups. But the individual interpreter is never rendered meaningless within this structuring context. Harold Koh did not simply recommend the United States to word for word adopt the interpretation of Article 2(1) ICCPR that important others had expressed. Instead, an interpreter has situated freedom to express itself in the interpretations it adopts, creatively placing its interpretation in relation to those of important audiences.Footnote ¹⁷⁴ Through the individual’s expressions, the structure of practice in turn is (re)shaped: These expressions contribute to a context for evaluation within which other interpreters operate.Footnote ¹⁷⁵ When interpretations stabilize and the space for interpretive agency is eventually—temporarily—closed down, reputation has done its stabilizing work; one interpretation, or a limited number of interpretations, have become operational routines. Interpreter and key audiences have internalized similar understandings of the law, and expression and evaluation overlap. The dynamic is then brought to a halt, and the legal concept has assumed a stable meaning—for the time being.

Many of the examples that were used throughout the text can illustrate this process. With regard to the geographic scope of the CAT, the United States in 2014 decided to follow Harold Koh’s suggestion in his 2013 CAT Memorandum to change its interpretation. In an address to the Committee Against Torture—whose authority certainly played a role hereFootnote ¹⁷⁶ —then acting Legal Adviser to the State Department Mary McLeod presented an interpretation that increased the obligations of the United States outside its territory, and hinted at a reputational basis for this decision, writing: “The United States is proud of its record as a leader in respecting, promoting, and defending human rights and the rule of law, both at home and around the world,” and this new interpretation would increase the reputation of the United States in this regard, allowing it to “lead by example.”Footnote ¹⁷⁷

With regard to the ICCPR, the United States has not yet shifted towards an extraterritorial interpretation of Article 2(1). Many other states, however, have increasingly espoused extraterritorial readings of the Covenant’s geographic scope, often for reputational reasons.Footnote ¹⁷⁸ These reinterpretations reshape the context for evaluation within which the United States operates. In light of the many negative evaluations that its strictly territorial interpretation has already received,Footnote ¹⁷⁹ it is not difficult to imagine that the United States might in the future also shift towards a more progressive interpretation of the geographic scope of the ICCPR—as it did regarding the CAT.

Reputations are important to collective actors everywhere—not just to the United States—and often drive interpretive stabilization and change. To draw on another example used earlier, reputation also played an important role in the process of change and stabilization during the discussions on the meaning of self-determination in the 1950s and early 1960s. When the UN Charter came into force in 1945, self-determination was left undefined, and different groups had adopted very different interpretations of the concept. Colonial peoples had something they could cling to, while the European empires could brush their claims aside by pointing to the principle’s indeterminacy. And yet, in 1960, the widely celebrated General Assembly Resolution 1514 on decolonization declared self-determination to imply the “right to complete independence”Footnote ¹⁸⁰ for colonial peoples. In the years that followed, opposition to an ever more forceful right to self-determination for colonial peoples dwindled quickly. What had seemed like a hopelessly utopian idea a mere 15 years earlier had now become a legal and political reality.

Archival materials indicate that reputational concerns were the primary driver behind this shift. Western states were highly susceptible to reputational concerns, particularly as they sought to present themselves under the umbrella of the “free world” at the grand stage of the UN General Assembly. The growing number of former colonies in the Assembly effectively mobilized these reputational concerns and thereby gained traction in their struggle for a right to self-determination. They exposed the discrepancy between Western self-perceptions as “enlightened administrators” on the one hand and their conservative interpretations of self-determination and practices of colonialism on the other, and thereby opened up an uncomfortable gap between the reputation and identity of these Western states. This induced these states to adopt more progressive interpretations of self-determination during the late 1950s and early 1960s.

For instance, the Dutch UN delegate noted in 1958 that he “felt uncomfortable when defending the Dutch position against the ever more pressing demands for an inalienable right to self-determination, particularly from African and Asian states.”Footnote ¹⁸¹ Reputational concerns turned out to be overwhelmingly important for the Netherlands: Considering that “in the UN, resistance to the recognition of a right to self-determination is labelled as colonialism,”Footnote ¹⁸² the Dutch Foreign Minister concluded that “it is both in the Dutch interest as well as important from the perspective of political considerations in the United Nations, to not adopt a strict ‘administering power’ position, and to incrementally change the Dutch policy”Footnote ¹⁸³ towards a more progressive interpretations.

Other Western states soon followed suit. As more and more states abandoned their prior, conservative interpretations, pressure on others grew. Each individual interpretive decision (re)shaped the evaluative context, and other interpreters in turn relied on these new contexts to (re)orient their own reputation management strategies. The United States also started to believe that its old interpretations were “extremely costly to US prestige.”Footnote ¹⁸⁴ A 1959 UK memorandum warned that if the United Kingdom did not change its positions regarding Africa, “our past record of benevolent government will be forgotten and it will be the French and perhaps the Belgians who will be regarded by world opinion as the leaders, while we may be classed with the Portuguese as the obstacles to further advance.”Footnote ¹⁸⁵ During the 1960s, the United Kingdom therefore also changed its interpretation in the General Assembly. Despite the fact that many Western states still had important economic and strategic interests in prolonging control over the colonies,Footnote ¹⁸⁶ their archives reveal that reputational considerations made it “impossible [to] take position against [the] concept of independence as an inalienable right for all dependent peoples”Footnote ¹⁸⁷ during the 1960s. With opposition waning, interpretations converged, and a relatively determinate right to self-determination emerged.

The bigger a group of interpreters converging on one specific interpretation becomes, the more likely it is that other interpreters will also gravitate towards it; more and more reputational consequences are attached to it, and deviance becomes less likely.Footnote ¹⁸⁸ Eventually, this may lead to a convergence to one, or at least a limited number of dominant interpretations.Footnote ¹⁸⁹ The grip of such dominant interpretations increases through teaching and training. New lawyers will be socialized to see the dominant interpretation as the (only) “correct” one, and a new structural bias will have emerged. Many universities across the world now teach aspiring international lawyers that a state has duties to individuals “within its territory” and to those “subject to its jurisdiction.”Footnote ¹⁹⁰ At some point, perhaps, the conflict over the meaning of the word “and” may therefore be resolved, when its meaning has stabilized and a new generation of lawyers has been taught one—supposedly “correct”—way of reading the text that they can hardly “unthink.” With self-determination, this has already happened: It is now uncontested that it implies a right to independence for colonial peoples.Footnote ¹⁹¹

Two caveats are in order. First, the fact that interpretive struggles over the meaning of legal concepts may stabilize does not mean that all discretion is then closed down. Interpretive debates are rarely “won” with any definite finality. Next to the ever-present possibility of reopening old debates,Footnote ¹⁹² closing one door often opens another. Now that it seems that an extraterritorial reading of the ICCPR has become dominant in practice, the interpretive debate has shifted to when a state has jurisdiction outside of its territory.Footnote ¹⁹³ If this is interpreted narrowly, the extraterritorial “victory” will merely be a pyrrhic one. The 1960 Decolonization Declaration declared a right to independence for colonial peoples, but the precise contours and mechanics of it remained subject to further contestation.Footnote ¹⁹⁴ In this sense, wins are always relative, and winning the battle over one term usually means that the battlefield will simply shift to adjacent semantic territories.

Second, the above considerations must not be taken to suggest that all interpretation should be understood as an exercise of reputation management, or that the developed perspective should be understood as a comprehensive theory of interpretation in international law. Certainly, there are many instances where reputation has no, or not a very important role in interpretive dynamics. The examples provided above, in that sense, are anecdotal, serving merely to illustrate how reputation “works” in the practice of interpretation. But as the next section argues, it is important to be aware of reputation’s role; for with every act of reputation management, the interpreter obscures something from the public eye.Footnote ¹⁹⁵ This can have severe consequences for international legal practice.