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- Agius, Maria, 1981-
(author)
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The Invocation of Necessity in International Law
- 2009
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In: Netherlands International Law Review. - 0165-070X .- 1741-6191. ; 56:2, s. 95-135
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Journal article (peer-reviewed)abstract
- This article studies the effects of invoking international necessity, to see whether it can be reconciled with an aspiring international rule of law. Any field of application in theory possible, the doctrine is here applied to uses of force, illustrated by humanitarian interventions, actions against international terrorism and the 2004 Construction of a Wall case. Relationships between circumstances precluding wrongfulness and the grounds for treaty termination is examined in light of international practice, studying necessity's impact on the stability of treaty regimes. The author concludes that international tribunals when applying necessity generally heed the rule of law, the stability of treaties and the elevation of overriding norms. Necessity, if successfully invoked, is not perceived to alter substantive obligations. It cannot create a right to assume would-be illegal behaviour. As a result, necessity need not threaten international legal regime building, but may serve as a safety valve, allowing states to remain faithful to general norms, from which they are allowed to deviate only temporarily. In this manner, necessity can even contribute to the rule of law, thanks to its limited scope, constitutionalising emergency powers and subordinating them to pacta sunt servanda.
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| 2. |
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| 3. |
- Linderfalk, Ulf
(author)
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Is the Hierarchical Structure of Articles 31 and 32 of the Vienna Convention Real or Not? Interpreting the Rules of Interpretation
- 2007
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In: Netherlands International Law Review. - 1741-6191. ; 54:1, s. 133-154
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Journal article (peer-reviewed)abstract
- In the practice of modern international law, if a certain understanding is advanced as the correct interpretation of a treaty provision, the proposition is assessed using the rules of interpretation laid down in the 1969 Vienna Convention on the Law of Treaties, Articles 31–33. This article is concerned with the relationship held in such an interpretation process between the preparatory work of a treaty – described as a supplementary means of interpretation in Article 32 – and the three primary means of interpretation that can be used by an interpreter citing Article 31. Judged by the wordings of Articles 31 and 32, the relationship between the primary and the supplementary means of interpretation is hierarchical. As a consequence, preparatory work may be used to determine the correct meaning of a treaty provision, only on the condition that in the earlier stages of the interpretation process, the application of Article 31 has been found to leave the meaning of the interpreted treaty ‘ambiguous or obscure’, or to lead to a result ‘which is manifestly absurd or unreasonable’. Several scholars in the area have recently argued for granting the preparatory work of a treaty a more prominent role in the interpretation process. As this article will show, such a claim builds on arguments that do not stand up to careful legal analysis. It should, therefore, be discarded as unsound.
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| 4. |
- Linderfalk, Ulf
(author)
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The Application of International Legal Norms Over Time: : The Second Branch of Intertemporal Law
- 2011
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In: Netherlands International Law Review. - 1741-6191. ; 58, s. 147-172
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Journal article (peer-reviewed)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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| 5. |
- Linderfalk, Ulf
(author)
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Who are "the parties"? Article 31 §3(c) and the "Principle of Systemic Integration" Revisited
- 2008
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In: Netherlands International Law Review. - 1741-6191. ; 55, s. 343-364
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Journal article (peer-reviewed)abstract
- Over the last couple of years, international lawyers have hotly debated the correct way to apply Article 31, paragraph 3(c) of the 1969 Vienna Convention on the Law of Treaties. Discussions have focused on the meaning of ‘the parties’. Traditionally this expression has always been interpreted in the stricter sense of all parties to the interpreted treaty. Voices are now raised suggesting a broader interpretation. According to this view, the correct meaning of ‘the parties’ is the two or more parties to a specific dispute. Given that the two interpretations of Article 31, paragraph 3(c) will often be mutually exclusive, international legal literature provokes a review of the possible reasons that give us ground to adopt them. This article provides such a review. It arrives at the conclusion that only the stricter interpretation can be seriously defended as being correct. First, only the stricter interpretation agrees with the clear ordinary meaning of Article 31, paragraph 3(c). Secondly, even assuming that the ordinary meaning of the provision is ambiguous, a strong case can be made in favour of the stricter interpretation using other data of interpretation, such as the context, the object and purpose of the treaty, and the preparatory work.
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