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International Legal Hierarchy Revisited: The Status of Obligations Erga Omnes

Linderfalk, Ulf LU (2011) In Nordic Journal of International Law Vol. 80. p.1-23
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... (More)
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. (Less)
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organization
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Contribution to journal
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published
subject
keywords
Treaty on Open Skies, erga omnes obligations, hierarchy in international law, Aaland Islands
in
Nordic Journal of International Law
volume
Vol. 80
pages
1 - 23
publisher
Brill
external identifiers
  • scopus:79951519305
ISSN
0902-7351
language
English
LU publication?
yes
id
0d85fc64-016f-41bc-b627-1bd5dd70823e (old id 1713040)
alternative location
https://brill.com/view/journals/nord/80/1/article-p1_1.xml
date added to LUP
2016-04-04 13:47:53
date last changed
2021-08-04 04:45:40
@article{0d85fc64-016f-41bc-b627-1bd5dd70823e,
  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.},
  author       = {Linderfalk, Ulf},
  issn         = {0902-7351},
  language     = {eng},
  pages        = {1--23},
  publisher    = {Brill},
  series       = {Nordic Journal of International Law},
  title        = {International Legal Hierarchy Revisited: The Status of Obligations Erga Omnes},
  url          = {https://brill.com/view/journals/nord/80/1/article-p1_1.xml},
  volume       = {Vol. 80},
  year         = {2011},
}