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Linderfalk, U (2019). The Exercise of Discretion in International Law – Why Constraining Criteria Have a Proper Place in the Analysis of Legal Decision-Making. German Yearbook of International Law, 62(1), 407-430. https://doi.org/10.3790/gyil.62.1.407
Linderfalk, Ulf (2019). "The Exercise of Discretion in International Law – Why Constraining Criteria Have a Proper Place in the Analysis of Legal Decision-Making" German Yearbook of International Law, vol. 62no. 1, 2019 pp. 407-430. https://doi.org/10.3790/gyil.62.1.407
Linderfalk, U (2019). The Exercise of Discretion in International Law – Why Constraining Criteria Have a Proper Place in the Analysis of Legal Decision-Making. German Yearbook of International Law, Vol. 62 (Issue 1), pp 407-430. https://doi.org/10.3790/gyil.62.1.407

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The Exercise of Discretion in International Law – Why Constraining Criteria Have a Proper Place in the Analysis of Legal Decision-Making

Linderfalk, Ulf

German Yearbook of International Law, Vol. 62 (2019), Iss. 1 : pp. 407–430

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Ulf, Linderfalk, Professor of International Law, Faculty of Law, Lund University.

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.

Table of Contents

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