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

TY - JOUR

T1 - Rebutting four arguments in favour of using proportionality tests to resolve conflicts between ius cogens norms

AU - Jeutner, Valentin

PY - 2020

Y1 - 2020

N2 - 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.

AB - 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.

KW - International law

KW - Internationell rätt

U2 - 10.1163/15718107-89030011

DO - 10.1163/15718107-89030011

M3 - Article

VL - 89

SP - 453

EP - 470

JO - Nordic Journal of International Law

JF - Nordic Journal of International Law

SN - 0902-7351

IS - 3-4

ER -