Rebutting four arguments in favour of using proportionality tests to resolve conflicts between ius cogens norms

Research output: Contribution to journalArticle

Abstract

The text casts doubt on the utility of proportionality tests to resolve conflicts between peremptory norms of public international law with reference to an argument advanced by João Ernesto Christófolo. Responding to Christófolo, the text maintains that subjecting conflicts between peremptory norms to a proportionality analysis entails judicial law-making, does not safeguard the interests protected by peremptory norms and that the use of proportionality tests cannot be justified with reference to the desired completeness of international law. Instead, the text argues that conflicts between peremptory norms should be dealt with head-on by openly acknowledging the existence of an irresolvable norm conflict and that, if at all, proportionality tests must be applied with utmost care to avoid that the interests of those undertaking a proportionality analysis prevail over the interests of those whose interests the balanced norms in questions are intended to protect.

Details

Authors
Organisations
Research areas and keywords

Subject classification (UKÄ) – MANDATORY

  • Law

Keywords

  • International law
Original languageEnglish
Pages (from-to)453-470
JournalNordic Journal of International Law
Volume89
Issue number3-4
Publication statusPublished - 2020
Publication categoryResearch
Peer-reviewedYes