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The Principle of Rational Decision-Making: As Applied to the Identification of Normative Conflicts in International Law

Linderfalk, Ulf LU (2013) In Zeitschrift für ausländisches öffentliches Recht und Völkerrecht : Heidelberg journal of international law 73(4). p.591-614
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 to
draw on political considerations. If international law gives priority to lex
specialis over lex generalis, for example, it does not provide any criteria that
can be used for classifying particular rules as either general or special. For
this reason, rather than putting conflict rules to practical use, international
courts and tribunals often choose... (More)
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 to
draw on political considerations. If international law gives priority to lex
specialis over lex generalis, for example, it does not provide any criteria that
can be used for classifying particular rules as either general or special. For
this reason, rather than putting conflict rules to practical use, international
courts and tribunals often choose the easy way out, simply denying that a
conflict exists. As the author of this article argues, this is not a very effective
strategy, since a decision determining the existence of a conflict is no less
dependent on political considerations. The author believes that although a
decision determining the existence of a conflict often cannot be founded on
international law simpliciter, it should always withstand the test of rational
reason. He ends the article by suggesting a mode of reasoning that would
seem to meet this concern. (Less)
Please use this url to cite or link to this publication:
author
organization
publishing date
type
Contribution to journal
publication status
published
subject
keywords
Public international law, Folkrätt
in
Zeitschrift für ausländisches öffentliches Recht und Völkerrecht : Heidelberg journal of international law
volume
73
issue
4
pages
591 - 614
publisher
C.H. Beck
ISSN
0044-2348
language
English
LU publication?
yes
id
6b8e5bf6-4581-4a92-a470-d670d98a5b8f (old id 3631882)
alternative location
http://www.zaoerv.de/73_2013/73_2013_4_a_591_614.pdf
date added to LUP
2016-04-04 09:29:04
date last changed
2018-12-13 11:48:55
@article{6b8e5bf6-4581-4a92-a470-d670d98a5b8f,
  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,<br/>international law provides a host of different conflict rules. As several studies reveal, to apply such a conflict rule, law-applying agents often have to<br/>draw on political considerations. If international law gives priority to lex<br/>specialis over lex generalis, for example, it does not provide any criteria that<br/>can be used for classifying particular rules as either general or special. For<br/>this reason, rather than putting conflict rules to practical use, international<br/>courts and tribunals often choose the easy way out, simply denying that a<br/>conflict exists. As the author of this article argues, this is not a very effective<br/>strategy, since a decision determining the existence of a conflict is no less<br/>dependent on political considerations. The author believes that although a<br/>decision determining the existence of a conflict often cannot be founded on<br/>international law simpliciter, it should always withstand the test of rational<br/>reason. He ends the article by suggesting a mode of reasoning that would<br/>seem to meet this concern.},
  author       = {Linderfalk, Ulf},
  issn         = {0044-2348},
  language     = {eng},
  number       = {4},
  pages        = {591--614},
  publisher    = {C.H. Beck},
  series       = {Zeitschrift für ausländisches öffentliches Recht und Völkerrecht : Heidelberg journal of international law },
  title        = {The Principle of Rational Decision-Making: As Applied to the Identification of Normative Conflicts in International Law},
  url          = {http://www.zaoerv.de/73_2013/73_2013_4_a_591_614.pdf},
  volume       = {73},
  year         = {2013},
}