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- Linderfalk, Ulf
(författare)
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All the Things That You Can Do With Jus Cogens: : A Pragmatic Approach to Legal Language
- 2013
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Ingår i: German Yearbook of International Law. - 0344-3094. ; 56, s. 351-386
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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.
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| 2. |
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| 3. |
- Linderfalk, Ulf
(författare)
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International Centre for Settlement of Investment Disputes Tribunal, Spyridon Roussalis v Romania, Decision of 7 December 2011
- 2013
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Ingår i: International and Comparative Law Quarterly. - 0020-5893. ; 62:1, s. 241-250
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Tidskriftsartikel (refereegranskat)abstract
- Abstract in UndeterminedInternational lawyers interested in international investment law and treaty interpretation issues should consider the international award recently delivered by an ICSID Tribunal in the case of Spyridon Roussalis v Romania.1 The case arose out of the privatization of a Romanian warehouse company (SC Malimp SA). On 23 October 1998, another Romanian company (Continent SRL) entered into a share purchase agreement with the Romanian authority for state assets recovery (AVAS) to purchase 372,523 shares in SC Malimp SA, or the equivalent of a 70 per cent interest in the company. Following the acquisition of SC Malimp SA, the name of that company was changed to SC Continent Marine Enterprise SA (or ‘Continent SA’ for short).
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| 4. |
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| 5. |
- Linderfalk, Ulf
(författare)
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The Functionality of Conceptual Terms in International Law and International Legal Discourse
- 2013
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Ingår i: European Journal of Legal Studies. - 1973-2937. ; 6:2, s. 27-50
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Tidskriftsartikel (refereegranskat)abstract
- Investigating the meaning of conceptual terms is an important task for international legal scholars. Traditionally, the meaning of conceptual terms has been analyzed by reference to what those terms describe, namely a relationship between, on the one hand, the particular properties identifying a particular phenomenon or state of affairs as belonging to the extension of a concept, and on the other hand, the legally relevant inferences ensuing from the categorization. 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 workable alternatives, this essay adopts a different approach. It equates the meaning of a conceptual term with its functionality, i.e. with what the uttering of a conceptual term potentially does to the beliefs, attitudes, and behaviour of participants in international legal discourse. The essay justifies this approach partly by resort to examples illustrating some of the many functionalities of conceptual terms in international legal discourse. Partly, justification is given by resort to arguments indicating the usefulness of functionality analysis, especially for the critical assessment of international legal discourse and for the explanation of its significance.
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| 6. |
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| 7. |
- 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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| 8. |
- Linderfalk, Ulf
(författare)
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The Source of Jus Cogens Obligations: How Legal Positivism Copes with Peremptory International Law
- 2013
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Ingår i: Nordic Journal of International Law. - 0902-7351. ; 82:3, s. 369-389
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Tidskriftsartikel (refereegranskat)abstract
- If legal positivists wish to sustain their account of the international legal system, arguably, they have yet to explain how jus cogens obligations can derive from the usual norm-creating processes recognized by international law. This article provides such an explanation exactly. The explanation builds on the distinction between first order rules of jus cogens (commanding or prohibiting some certain action) and second order rules of the jus cogens regime (specifying the legal consequences ensuing from the postulated superiority of jus cogens over ordinary international law). As argued in this essay, the jus cogens status of a rule of law (R) derives from the existence of the second order rules of the jus cogens regime and from the application of those rules to R. Consequently, the explanation of the source of jus cogens obligations lies in the source of the second order rules, rather than in the source of the first order rules themselves. The second order rules are general customary international law, why this must also be the source of jus cogens obligations. This essay ends by inquiring into the implications of this analysis for the concept of jus cogens and for international legal theory in general.
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