The Exercise of Discretion in International Law – Why Constraining Criteria Have a Proper Place in the Analysis of Legal Decision-Making
Year: 2019
Author: Linderfalk, Ulf
German Yearbook of International Law, Vol. 62 (2019), Iss. 1 : pp. 407–430
Abstract
In international law, the exercise of legal discretion is constrained by criteria, such as the abuse of rights doctrine and the principle of legal certainty. The hitherto research of these criteria gives reason to take up a discussion on the appropriate way of conceptualising discretion and constraining criteria. This article, in contrast to the belief of other scholars, makes a case for the understanding of the exercise of discretion as an activity separate from legal interpretation. As it insists, the application of a constraining criterion is wholly distinct from the form of arguments that can be derived from rules of interpretation.
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Journal Article Details
Publisher Name: Global Science Press
Language: English
DOI: https://doi.org/10.3790/gyil.62.1.407
German Yearbook of International Law, Vol. 62 (2019), Iss. 1 : pp. 407–430
Published online: 2019-01
AMS Subject Headings: Duncker & Humblot
Copyright: COPYRIGHT: © Global Science Press
Pages: 24
Keywords: Discretion Exercise of Discretion Constraining Criteria Interpretation Rules of Interpretation
Author Details
Linderfalk, Ulf Email
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Analysis of international investment treaties in the absence of international law based on data mining classification model
Zhao, Yibo
Applied Mathematics and Nonlinear Sciences, Vol. 0 (2023), Iss. 0
https://doi.org/10.2478/amns.2023.1.00452 [Citations: 0]
| Section Title | Page | Action | Price |
|---|---|---|---|
| Ulf Linderfalk\nThe Exercise of Discretion in International Law – Why Constraining Criteria Have a Proper Place in the Analysis of Legal Decision-Making | 407 | ||
| I. Introduction | 407 | ||
| II. The Concept of Legal Interpretation | 412 | ||
| Do Rules of Interpretation Constrain the Exercise of Discretion? | 412 | ||
| III. The Rules of Interpretation | 407 | ||
| Beyond the Bounds of the Existing Rules of Interpretation, Is There Any Place in International Law for Constraining Criteria? | 407 | ||
| IV. The Constraining Criteria | 407 | ||
| To the Extent that it Should Ever Prove Meaningful to Speak About Constraining Criteria in International Law, Is it True that Rules of Interpretation and Constraining Criteria are Functionally Indistinguishable? | 407 | ||
| V. Conclusions: The Several Positive Things About the Separation Thesis | 408 |