Abstract

A discourse on discriminatory rules or judicial discriminatory interpretation in international law is a delicate matter, because the idea of discriminatory rules or interpretations runs counter to two well established principles or mantra of international law,respectively the principle of equality between sovereign States and the common wisdom of the international judicial function as a value per se. The essay aims to demonstrate that in case of a discriminatory rule the international judge tends to re-equilibrate the relation between the parties recurring to various hermeneutical tools, while in the case of a rule excluding discrimination, the international judge may be tempted to carve out a space of discretion in fixing the terms of comparison. As for a discriminatory interpretation of neutral rules, the article shows that while the phenomenon of an outright discriminatory interpretation as such is difficult to envisage, a large use of the technique of distinguishing permits the judge to exercise a large margin of discretion, which might finally lead to discriminatory results.