The Principle of Rational Decision-Making: As Applied to the Identification of Normative Conflicts in International Law
Author
Summary, in English
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.
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.
Department/s
Publishing year
2013
Language
English
Pages
591-614
Publication/Series
Zeitschrift für ausländisches öffentliches Recht und Völkerrecht : Heidelberg journal of international law
Volume
73
Issue
4
Links
Document type
Journal article
Publisher
C.H. Beck
Topic
- Law
Keywords
- Public international law
- Folkrätt
Status
Published
Research group
- Public International Law
ISBN/ISSN/Other
- ISSN: 0044-2348