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- Linderfalk, Ulf
(författare)
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The Creation of Jus Cogens: : Making Sense of Article 53 of the Vienna Convention
- 2011
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Ingår i: Zeitschrift für ausländisches öffentliches Recht und Völkerrecht : Heidelberg journal of international law. - 0044-2348. ; 71, s. 359-378
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Tidskriftsartikel (refereegranskat)abstract
- This essay provides an analysis of the creation of jus cogens. The analysismakes intelligible the definition of jus cogens provided in Art. 53 of the 1969Vienna Convention on the Law of Treaties. It has been said repeatedlyabout this definition that it is circular. If a jus cogens status is conferred on arule of law because the international community of states accepts and recognizes this rule as non-derogable and modifiable only by the creation of anew norm of jus cogens, then the definition assumes what remains to be established: the creation of jus cogens. As shown in this essay, this criticismbuilds on wrongful assumptions. It assumes that Art. 53 explains the creation of jus cogens, which it does not; it explains only its existence. A full explanation of the creation of jus cogens requires further elaboration. According to the proposition argued in this essay, jus cogens obligations derivefrom the usual processes creating ordinary customary international law.
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- Linderfalk, Ulf
(författare)
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The Principle of Rational Decision-Making: As Applied to the Identification of Normative Conflicts in International Law
- 2013
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Ingår i: Zeitschrift für ausländisches öffentliches Recht und Völkerrecht : Heidelberg journal of international law. - 0044-2348. ; 73:4, s. 591-614
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Tidskriftsartikel (refereegranskat)abstract
- The resolution of normative conflicts is a recurring issue for the application of international law, more so now than ever before. To help lawapplying agents to justify decisions resolving a conflict between two norms,international law provides a host of different conflict rules. As several studies reveal, to apply such a conflict rule, law-applying agents often have todraw on political considerations. If international law gives priority to lexspecialis over lex generalis, for example, it does not provide any criteria thatcan be used for classifying particular rules as either general or special. Forthis reason, rather than putting conflict rules to practical use, internationalcourts and tribunals often choose the easy way out, simply denying that aconflict exists. As the author of this article argues, this is not a very effectivestrategy, since a decision determining the existence of a conflict is no lessdependent on political considerations. The author believes that although adecision determining the existence of a conflict often cannot be founded oninternational law simpliciter, it should always withstand the test of rationalreason. He ends the article by suggesting a mode of reasoning that wouldseem to meet this concern.
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- Linderfalk, Ulf
(författare)
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What Are the Functions of the General Principles? Good Faith and International Legal Pragmatics
- 2018
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Ingår i: Zeitschrift für ausländisches öffentliches Recht und Völkerrecht : Heidelberg journal of international law. - 0044-2348. ; 78, s. 1-32
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Tidskriftsartikel (refereegranskat)abstract
- To assist current efforts of the academic community to develop a fuller understanding of the function of general principles of international law, this article inquires into the operation of the principle of good faith. As argued, first, good faith serves as a principle of international legal pragmatics. It helps to explain the understanding of conduct in much the same way as, say, the requirement that in a verbal utterance, the first singular pronoun “I” be used to refer to the utterer, and a temporal expression such as “now” to the point in time of the utterance. Second, the principle of good faith does not itself presuppose the good of any particular state of affairs. It helps to ensure the comprehension of communicative behaviour on the part of international law-makers, irrespective of the moral or political agenda that they themselves happen to be pursuing. Third, in international law, there are other norms that share the traits of the principle of good faith. They, too, can be characterised as principle of international legal pragmatics.
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- Padskocimaite, Ausra
(författare)
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Constitutional Courts and (Non)execution of Judgments of the European Court of Human Rights : A Comparison of Cases from Russia and Lithuania
- 2017
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Ingår i: Zeitschrift für ausländisches öffentliches Recht und Völkerrecht. - 0044-2348. ; 77, s. 651-684
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Tidskriftsartikel (övrigt vetenskapligt/konstnärligt)abstract
- In today’s Europe the protection of human rights is ensured by different legal instruments on the national, regional and international levels. Sometimes these human rights regimes clash with each other, not infrequently because of diverging understandings of rights by the judicial bodies responsible for their interpretation. On the one hand, states have a legal obligation to comply with their international commitments and, pursuant to Art. 46 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR or the Convention), also with judgments of the European Court of Human Rights (ECtHR or the Court) delivered against them. On the other hand, in the majority of countries international treaties (including international courts’ judgments) have a lower formal rank than national law and in particular the Constitution, which is regarded as the supreme source of law. This paper compares the case-law and approaches of the Constitutional Courts of Russia and Lithuania towards judgments of the Strasbourg Court, which potentially challenge national constitutional provisions. Neither the Constitutional Court of Russia nor the Constitutional Court of Lithuania was willing/able to reconcile the Convention and the Constitution, but whereas the former encouraged the State to respect its international obligations, the latter used its authority to justify non-compliance.
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