Permissive Rules in Public International Law
1.7.2016 - 30.6.2020, FWF-Projekt P 28732

Projektleiter: Univ.-Prof. Dr. Andreas Müller, LL.M. (Yale), andreas.mueller@uibk.ac.at

Projektmitarbeiterin:
Mag. iur. Leonard Johannes Reider, leonard.reider@uibk.ac.at (seit 2019)

Ehemalige Mitarbeiterinnen: 
Mag. Iman El Hawary (2016-2018), MMag. Verena Kirchmair (2016-2018),  Mag. Hanna Siebenrock (2018-2019)

The idea of permissive rules, i.e. legal rules “permitting” a certain course of action, is anything but self-evident. Typically, one expects the legal order to control behaviour by ordering or prohibiting certain actions. However, on closer observation, numerous examples of permissive rules can be found, including in international law. Notably, in the Lotus case, the Permanent Court of International Justice expressly referred to the concept of “permissive rules”. This gives rise to the question of the legal relevance of such permissive rules as well as of the specific function they fulfil in international law. Yet, the phenomenon of permissive rules has hitherto not obtained the attention in the international law discourse which it would deserve.

The central hypothesis of the research project is that a distinction has to be drawn between a thin and a thick concept of permissive rules. While the former version of permissive rules means that an act is not prohibited, the latter version means that there is a right to perform the act in question. This distinction is not only relevant at the theoretical level. Thin and thick permissions also produce different legal consequences for the actors involved. In particular, if an actor is permitted (i.e. not prohibited) to follow a course of action, this does not imply that other actors on the international plane are obliged to recognise this permission. In contrast, a thick permission creates duties for third parties.

The research project examines various areas of international law with regard to the existence of thick and thin permissive rules and their legal consequences. First results have already been published (Müller, Andreas Th., Steuerung durch Erlaubnisnormen am Beispiel von Sezession und Selbstbestimmungsrecht, 76 ZaöRV (2016), 475-495, http://www.zaoerv.de/76_2016/76_2016_2_a_475_496.pdf). The current focus of the research project is the ambivalent handling of the phenomenon of espionage by international law.

 

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