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- Linderfalk, Ulf
(författare)
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International Legal Hierarchy Revisited: The Status of Obligations Erga Omnes
- 2011
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Ingår i: Nordic Journal of International Law. - 0902-7351. ; Vol. 80, s. 1-23
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Tidskriftsartikel (refereegranskat)abstract
- Increasingly, international legal arguments exploit the peculiar nature of obligations erga omnes. This practice raises questions about the precise legal status of norms expressing such obligations relative to other norms of international law. According to an oft-made suggestion, whether a norm is part of the international jus cogens or not, when it expresses obligations erga omnes it is hierarchically superior to all other norms of non-peremptory international law. This essay inquires into the justification of this theory – throughout the essay referred to as “the Theory on the Superior Status of Erga Omnes Obligations”. As shown in section 2, irrespective of whether inferential legal evidence exists or not, the Theory on the Superior Status of Obligations Erga Omnes can be explained by reference to the non-reciprocal character of such obligations. However, logic requires that the theory be restated to include also interdependent obligations and obligations erga omnes partes. As shown in section 3, although inferential legal evidence provides some support for the Theory on the Superior Status of Obligations Erga Omnes, the evidence is not entirely consistent. As shown in section 4, if the theory on the superior status of obligations erga omnes is adopted and applied on a wide scale, this will have detrimental effects on the overall understanding of international law. Rather than a more properly functioning international legal system, confusion and disorganization will ensue.
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| 2. |
- Linderfalk, Ulf
(författare)
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The Application of International Legal Norms Over Time: : The Second Branch of Intertemporal Law
- 2011
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Ingår i: Netherlands International Law Review. - 1741-6191. ; 58, s. 147-172
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Tidskriftsartikel (refereegranskat)abstract
- Intertemporal law governs the applicability of international legal norms ratione temporis. According to often used terminology, intertemporal law has two different branches. This article provides clarification of the so-called ‘second branch of intertemporal law’. It does so by refuting two commonly held assumptions. First, as established in section 2 of the article, the second branch of intertemporal law is not an exception to the first branch of that law. It cannot be, since both branches of intertemporal law centre on the same legal principle: an action or a factual state of affairs must be assessed in the light of the law which is contemporary with it. Secondly, as implicated by the line of reasoning in section 2, and further confirmed by the inferential evidence cited in section 3, the practical relevance of the second branch of intertemporal law is not confined to the application of the law on the acquisition to territory. It pertains to a more widely defined group of norms in international law.
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| 3. |
- 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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| 4. |
- Linderfalk, Ulf
(författare)
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The Many Functions of International Legal Concepts, Part One
- 2011
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Annan publikation (övrigt vetenskapligt/konstnärligt)abstract
- According to the ontological stance adopted in this essay, a concept is a mental representation. It is the generalized idea of an empirical or normative phenomenon or state of affairs or a class of such phenomena or state of affairs. This essay is concerned with a specific category of concepts typically referred to as “concepts of international or international law” or “international legal concepts.” International legal concepts figure prominently in the way international lawyers think and talk about international law. This raises questions about their possible function or functions. Arguably, international legal concepts would not be used on such a large scale if they did not also fill important needs. What exactly are those needs? What does international legal discourse need legal concepts for? The Danish professor Alf Ross wrote on this topic in the beginning of the 1950’s. As he observed, the function of legal concepts is intimately connected with their role as meddling links or connectives in legal inferences. This observation led Ross to the conclusion that legal concepts serve to economize the expression of law in verbal form. As I will argue, by reason of their role as meddling links in legal inferences exactly, legal concepts serve a number of other functions as well. To substantiate my argument, in this essay I will illustrate the “camouflaging,” “normative,” “disclosing,” “systemizing,” and “formative” functions of legal concepts in international legal discourse.
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