| 1. |
- Linderfalk, Ulf
(författare)
-
All the Things That You Can Do With Jus Cogens: : A Pragmatic Approach to Legal Language
- 2013
-
Ingår i: German Yearbook of International Law. - 0344-3094. ; 56, s. 351-386
-
Tidskriftsartikel (refereegranskat)abstract
- Investigating the meaning of conceptual terms is an important task for international legal scholars. In the analysis of the usage of conceptual terms in international legal discourse, traditionally, most international lawyers have confined studies to the descriptive meaning of those terms. They have assumed that conceptual terms describe a relationship between, on the one hand, the particular properties identifying a particular phenomenon or state of affairs as one that belongs to the extension of a particular concept, and on the other hand, the legally relevant inferences ensuing from the categorisation. While this theory works reasonably well as long as studies are confined to the meaning of conceptual terms in law, it is ill-suited for any similar study of international legal discourse. In the search for possible alternatives, this article adopts instead a pragmatic approach to legal language. More specifically, it equates the meaning of a conceptual term with its functionality, that is, with what the uttering of a conceptual term potentially does to the beliefs, attitudes, and behaviour of participants in international legal discourse. The investigation proceeds in two steps. As Section II argues, a functionality-based theory of meaning suggests a method (referred to throughout the article as functionality analysis) that can be used for the analysis of international legal discourse. Sections III, IV and V illustrate the ramifications of functionality analysis by applying it relative to the usage of one particular conceptual term, namely jus cogens.
|
|
| 2. |
- Linderfalk, Ulf
(författare)
-
Is Treaty Interpretation an Art or a Science? International Law and Rational Decision Making
- 2015
-
Ingår i: European Journal of International Law. - : Oxford University Press (OUP). - 1464-3596 .- 0938-5428. ; 26:1, s. 169-189
-
Tidskriftsartikel (refereegranskat)abstract
- Although treaty interpretation is undoubtedly an activity governed by international law, and by Articles 31-33 of the 1969 Vienna Convention on the Law of Treaties (VCLT) in particular, some commentators continue repeating the pre-Vienna adage that treaty interpretation is a matter of art and not science, the implication of which is that no understanding of a treaty provision can ever be explained rationally. As the present article argues, this idea of interpretation must be rejected. While, sometimes, an assumed meaning of a treaty cannot be justified based on international law simpliciter, many times it can still be explained based on the structural framework of Articles 31-33 of the VCLT. Consequently, any characterization of treaty interpretation in the abstract as either art or science is misplaced. Whether treaty interpretation is an art or a science remains a question of fact inextricably tied to the approach taken by each and every law-applying agent in particular cases.
|
|
| 3. |
- Linderfalk, Ulf
(författare)
-
Proportionality and international legal pragmatics
- 2020
-
Ingår i: Nordic Journal of International Law. - : Brill. - 0902-7351 .- 1571-8107. ; 89:3-4, s. 422-437
-
Tidskriftsartikel (refereegranskat)abstract
- To respond to the question of whose interest proportionality serves, this article enquires into the function of this important principle. As the article argues, proportionality functions in much the same way as any generally applicable pragmatic principle: it facilitates comprehension of communicative behaviour on the part of utterers, in this case international lawmakers. Thus, the principle of proportionality serves two important interests. First, it serves the interest of legal communication, helping international lawmakers to make themselves understood. Second, it serves the interests of legal efficacy - it facilitates the effective realisation of the objects and purposes conferred by international lawmakers on international norms.
|
|
| 4. |
- Linderfalk, Ulf
(författare)
-
The exercise of discretion in international law – why constraining criteria have a proper place in the analysis of legal decision-making
- 2021
-
Ingår i: German Yearbook of International Law. - : Duncker & Humblot GmbH. - 0344-3094. ; 62:1, s. 407-430
-
Tidskriftsartikel (refereegranskat)abstract
- In international law, the exercise of legal discretion is constrained by criteria, such as the abuse of rights doctrine and the principle of legal certainty. The hitherto research of these criteria gives reason to take up a discussion on the appropriate way of conceptualising discretion and constraining criteria. This article, in contrast to the belief of other scholars, makes a case for the understanding of the exercise of discretion as an activity separate from legal interpretation. As it insists, the application of a constraining criterion is wholly distinct from the form of arguments that can be derived from rules of interpretation.
|
|
| 5. |
|
|
| 6. |
|
|
| 7. |
- Hilling, Maria, et al.
(författare)
-
The Use of OECD Commentaries as Interpretative Aids : The Static/Ambulatory-Approaches Debate Considered from the Perspective of International Law
- 2015
-
Ingår i: Nordic Tax Journal. - : Walter de Gruyter GmbH. - 2246-1809. ; 2015:1, s. 34-59
-
Tidskriftsartikel (refereegranskat)abstract
- Since many years, international tax law experts debate the relevance of changes to OECD Commentaries for the purpose of the interpretation of previously concluded tax treaties. Although, generally, most experts seem averse to the idea of an ambulatory approach to the usage of OECD Commentaries, they are reluctant to exclude this idea altogether. Such a position raises an important issue of justification: When exactly should the ambulatory approach be taken? As argued in this essay, the proper answer to this question depends on the particular rule of interpretation justifying the usage of OECD Commentaries in particular cases. If Commentaries are used according to Article 32 of the VCLT as part of the circumstances of the conclusion of a tax treaty, then because of the very nature of this means of interpretation, a static approach would have to be taken. If, instead, Commentaries are used to determine the ordinary meaning of the terms of a tax treaty, or its object and purpose; or if Commentaries are used based on Article 31, paragraph 3(b) of the VCLT; then the VCLT confers on interpreters a discretion. This discretion is limited by the principle of good faith, which means that interpreters will have to continue searching for the intention of treaty parties. Although this search can be rationalized as the application of general factors, as argued in this article, no choices between a static or an ambulatory approach can be made other than relative to particular cases, based on an overall assessment taking all applicable factors into account. Readers should contrast this conclusion with the position of many international tax law experts, who argue that such choices can be dealt with conclusively by the adoption of some or other general principle.
|
|
| 8. |
- Linderfalk, Ulf
(författare)
-
Concepts as Tools of Legal Reasoning – How Pragmatics May Promote the Rationality of International Legal Discourse and the Work of Legal Scholars
- 2021
-
Ingår i: Nordic Journal of International Law. - 0902-7351. ; 90:3, s. 373-404
-
Tidskriftsartikel (refereegranskat)abstract
- Concepts are an important element of the way international lawyers think and talk about international law. They materialise as conceptual terms, such as ‘jurisdiction’, ‘self-defence’ and ‘abuse of rights’. To enable a critical evaluation of international law and legal discourse, it is important that single instances of use of such terms be fully understood. This task presupposes a full recognition of the social meaning of legal utterances. Conceptual terms are uttered not only to describe the law, but also to affect the beliefs, attitudes and behaviour of readers and listeners. International lawyers are acquainted with this social side of legal meaning but lack a theory firmly grounded in pragmatic research that can help them systematically describe and investigate it. This article provides precisely such a theory. Crucially, it also explains how the suggested theory of meaning may promote the rationality of international legal discourse and the work of legal scholars.
|
|
| 9. |
- Linderfalk, Ulf
(författare)
-
Cross-fertilisation in International Law
- 2015
-
Ingår i: Nordic Journal of International Law. - 0902-7351. ; 84, s. 428-428
-
Tidskriftsartikel (refereegranskat)abstract
- This article picks up on a term (‘cross-fertilisation’) often exploited in debates on the interaction of international laws and legal practices, especially in the context of international criminal law. Two questions are addressed: (1) What is the meaning of ‘cross-fertilisation’? (2) What are its conditions? As the article argues, ‘cross-fertilisation’ pertains to the understanding of legal utterances relative to other such utterances. The concept assumes that if an agent wishes to understand the meaning or significance of a legal utterance, his understanding may profit by bringing the analysis of this utterance to bear on its assumed relationship with other legal utterances. Any assumption of a relationship between two legal utterances requires justification, however, or else it will not meet acceptance in international legal discourse. Consequently, when an agent brings the analysis of a legal utterance to bear on its relationship with some other legal utterance, as this article argues, cross-fertilisation will occur on two conditions. First, there has to be recognition of the relationship between the two utterances by a rule, principle, or informal convention pertinent to international legal discourse. Second, the agent must have grasped the precise nature of this same relationship. Based on this proposition, the article ends with six examples illustrating the kind of problems that might obstruct cross-fertilisation proper.
|
|
| 10. |
- Linderfalk, Ulf
(författare)
-
Doing the Right Thing for the Right Reason: : Why Dynamic or Static Approaches Should be Taken in the Interpretation of Treaties
- 2008
-
Ingår i: International Community Law Review. - 1871-9732. ; 10, s. 109-141
-
Tidskriftsartikel (övrigt vetenskapligt/konstnärligt)abstract
- In the interpretation of treaties, according to Article 31 of the 1969 Vienna Convention, interpreters shall pay primary regard to conventional language and to "relevant rules of international law applicable in the relations between the parties". Applying this provision, it is obvious that interpreters will sometimes face questions of an inter-temporal nature. What law or what language should be brought to bear on the interpretation process, exactly? The one that existed when the interpreted treaty was concluded? Or the one that exists at the time of interpretation? Over the last 30 years, international law doctrine has increasingly come to favour a rather lax approach to this issue. As the prevailing theory contends, different choices should be made depending on the particular treaty interpreted. The present article inquires into the reasons justifying this theory. As argued extensively, although there are certainly good reasons to agree with what the current legal doctrine contends, those good reasons are not the ones commonly invoked: the doctrine of inter-temporal law, as expressed in the Island of Palmas Arbitration, and the two decisions of the International Court of Justice in Namibia and the Aegean Sea Continental Shelf Delimitation, respectively. The supportive reasons lie elsewhere. As argued in the present article, it is imperative that international lawyers come to understand this; particularly if we consider it important that all inter-temporal problems – including those obviously foreseen in the international law literature – are resolved consistently.
|
|
