Pub Date : 2020-06-18DOI: 10.1093/oso/9780198789321.003.0004
F. Schauer
An important aspect of international law is that it typically lacks the formal, structured, and institutional enforcement and sanctioning mechanisms of domestic law. As a result, decision-makers constrained by international law are often faced with applying the rules of international law to their own action. We know from H.L.A. Hart and others that such internalization is possible, but we know from a great deal of experimental research in cognitive and social psychology that imposing second-order constraints on one’s first-order preferences is difficult and rare without a sanctioning mechanism. As a result, there exists a serious risk that treating the rules of international law as defeasible and subject to exceptions will render the constraints of international law ineffectual when actors are making the decisions about whether and when the exceptions to constraining rules apply to their own actions.
{"title":"Rules, Defeasibility, and the Psychology of Exceptions","authors":"F. Schauer","doi":"10.1093/oso/9780198789321.003.0004","DOIUrl":"https://doi.org/10.1093/oso/9780198789321.003.0004","url":null,"abstract":"An important aspect of international law is that it typically lacks the formal, structured, and institutional enforcement and sanctioning mechanisms of domestic law. As a result, decision-makers constrained by international law are often faced with applying the rules of international law to their own action. We know from H.L.A. Hart and others that such internalization is possible, but we know from a great deal of experimental research in cognitive and social psychology that imposing second-order constraints on one’s first-order preferences is difficult and rare without a sanctioning mechanism. As a result, there exists a serious risk that treating the rules of international law as defeasible and subject to exceptions will render the constraints of international law ineffectual when actors are making the decisions about whether and when the exceptions to constraining rules apply to their own actions.","PeriodicalId":102121,"journal":{"name":"Exceptions in International Law","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127048517","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-06-18DOI: 10.1093/oso/9780198789321.003.0017
K. Trapp
There is a broad spectrum of permissible qualifications to human rights in the interests of achieving a legitimate aim, and this chapter outlines a typology of qualifications and the interactions between them. This chapter argues that there is nothing inherent in the form relevant qualifications take—they may take the form of exemptions from the scope of the right, exceptions to the rights protection, or a temporally limited suspension of the obligation to respect the right or the secondary obligations which flow from responsibility for a breach. Indeed, the different qualifications overlap and the structure of analysis in respect of each can be relied on to inform the others’ application on the basis of principles of systemic interpretation. While the same legitimate aim can be addressed in the human rights calculus bearing on these qualifications, the key difference lies in the nature of judicial engagement with rights protection.
{"title":"Exemptions, Qualifications, Derogations, and Excuses in International Human Rights Law","authors":"K. Trapp","doi":"10.1093/oso/9780198789321.003.0017","DOIUrl":"https://doi.org/10.1093/oso/9780198789321.003.0017","url":null,"abstract":"There is a broad spectrum of permissible qualifications to human rights in the interests of achieving a legitimate aim, and this chapter outlines a typology of qualifications and the interactions between them. This chapter argues that there is nothing inherent in the form relevant qualifications take—they may take the form of exemptions from the scope of the right, exceptions to the rights protection, or a temporally limited suspension of the obligation to respect the right or the secondary obligations which flow from responsibility for a breach. Indeed, the different qualifications overlap and the structure of analysis in respect of each can be relied on to inform the others’ application on the basis of principles of systemic interpretation. While the same legitimate aim can be addressed in the human rights calculus bearing on these qualifications, the key difference lies in the nature of judicial engagement with rights protection.","PeriodicalId":102121,"journal":{"name":"Exceptions in International Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129452164","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-06-18DOI: 10.1093/oso/9780198789321.003.0021
O. Suttle
This chapter examines the logic of exceptions in World Trade Organization (WTO) law, and their relation to the reasons that apply to members, and to the authority of WTO law and adjudicators. Many exceptions can be understood as qualifying rules, in order that those rules should better track the reasons that apply to those subject to them. However, others are better explained as reflecting the limits of law’s authority: at least sometimes, exceptions identify areas wherein the law falls silent, not because its subjects necessarily have reasons to act otherwise than in accordance with the unqualified rule, but rather because they have good claims to decide for themselves whether they should so act. Joseph Raz’s service conception of authority is applied to develop an account of the grounds, scope, and limits of WTO law’s authority, which account is in turn applied to explain three specific sets of exceptions or quasi-exceptions: the GATT Article XX General Exceptions, the trade remedies rules, and the ‘non-exception-exceptions’ for domestic regulation deviating from international standards.
{"title":"Reasons, Institutions, Authorities","authors":"O. Suttle","doi":"10.1093/oso/9780198789321.003.0021","DOIUrl":"https://doi.org/10.1093/oso/9780198789321.003.0021","url":null,"abstract":"This chapter examines the logic of exceptions in World Trade Organization (WTO) law, and their relation to the reasons that apply to members, and to the authority of WTO law and adjudicators. Many exceptions can be understood as qualifying rules, in order that those rules should better track the reasons that apply to those subject to them. However, others are better explained as reflecting the limits of law’s authority: at least sometimes, exceptions identify areas wherein the law falls silent, not because its subjects necessarily have reasons to act otherwise than in accordance with the unqualified rule, but rather because they have good claims to decide for themselves whether they should so act. Joseph Raz’s service conception of authority is applied to develop an account of the grounds, scope, and limits of WTO law’s authority, which account is in turn applied to explain three specific sets of exceptions or quasi-exceptions: the GATT Article XX General Exceptions, the trade remedies rules, and the ‘non-exception-exceptions’ for domestic regulation deviating from international standards.","PeriodicalId":102121,"journal":{"name":"Exceptions in International Law","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126659857","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-06-18DOI: 10.1093/oso/9780198789321.003.0013
Valentin Jeutner
The chapter considers whether there can be legal states of affairs that are both the rule and the exception or, in other words, whether there can be situations where the rule and the exception are superimposed upon each other so that neither the rule nor the exception singularly controls the legal classification of a given situation, although both the rule and the exception continue to apply. The chapter attempts to show that such situations can exist and that such situations can have a very distinct and useful legal function. The argument is illustrated with reference to the International Court of Justice’s 1996 Advisory Opinion concerning the Legality of the Threat or Use of Nuclear Weapons and, in particular, with reference to the notion of the ‘survival of the State’ as a ground of self-defence, as discussed in the Advisory Opinion.
{"title":"Both the Rule and the Exception","authors":"Valentin Jeutner","doi":"10.1093/oso/9780198789321.003.0013","DOIUrl":"https://doi.org/10.1093/oso/9780198789321.003.0013","url":null,"abstract":"The chapter considers whether there can be legal states of affairs that are both the rule and the exception or, in other words, whether there can be situations where the rule and the exception are superimposed upon each other so that neither the rule nor the exception singularly controls the legal classification of a given situation, although both the rule and the exception continue to apply. The chapter attempts to show that such situations can exist and that such situations can have a very distinct and useful legal function. The argument is illustrated with reference to the International Court of Justice’s 1996 Advisory Opinion concerning the Legality of the Threat or Use of Nuclear Weapons and, in particular, with reference to the notion of the ‘survival of the State’ as a ground of self-defence, as discussed in the Advisory Opinion.","PeriodicalId":102121,"journal":{"name":"Exceptions in International Law","volume":"87 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122086711","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-06-18DOI: 10.1093/oso/9780198789321.003.0018
J. Harrison
When negotiating multilateral environmental agreements, it is often necessary to balance the environmental objectives of the agreement against other countervailing social or economic values, in order to ensure that all relevant states are willing to become a party to the agreement. One way in which to accommodate divergent values is through the inclusion of exceptions to the substantive treaty obligations. This chapter considers three different models for exceptions in multilateral environmental agreements: exclusions, reservations or opt-outs, and ad hoc conditional rights. The chapter also explores the oversight mechanisms that are utilized in order to prevent abuse of these exceptions in practice. The research suggests that there is a trend towards increasing scrutiny of states that take advantage of exceptions in environmental treaties, through the use of both political, independent, and judicial mechanisms.
{"title":"Exceptions in Multilateral Environmental Agreements","authors":"J. Harrison","doi":"10.1093/oso/9780198789321.003.0018","DOIUrl":"https://doi.org/10.1093/oso/9780198789321.003.0018","url":null,"abstract":"When negotiating multilateral environmental agreements, it is often necessary to balance the environmental objectives of the agreement against other countervailing social or economic values, in order to ensure that all relevant states are willing to become a party to the agreement. One way in which to accommodate divergent values is through the inclusion of exceptions to the substantive treaty obligations. This chapter considers three different models for exceptions in multilateral environmental agreements: exclusions, reservations or opt-outs, and ad hoc conditional rights. The chapter also explores the oversight mechanisms that are utilized in order to prevent abuse of these exceptions in practice. The research suggests that there is a trend towards increasing scrutiny of states that take advantage of exceptions in environmental treaties, through the use of both political, independent, and judicial mechanisms.","PeriodicalId":102121,"journal":{"name":"Exceptions in International Law","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123637350","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-06-18DOI: 10.1093/oso/9780198789321.003.0016
M. Fitzmaurice
The legal character of the exceptio inadimplenti non est adimplendum or exceptio inadimpleti contractus is one of those institutions in international law the legal character of which remains somewhat shrouded in mystery. In broad brushstrokes, the exceptio implies that ‘a condition for one party’s compliance with a synallagmatic obligation is the continued compliance of the other party with that obligation’. There are a myriad of unresolved issues concerning the exceptio which are both of a theoretical and a practical nature. As will be explained, there are different forms of the exceptio—a fact which is frequently overlooked. The relationship of the exceptio with the rules on countermeasures and material breach of a treaty are very unclear and have yet to be examined and analysed in depth. From a more theoretical point of view, it is interesting to explore whether the exceptio belongs to general principles of law as enshrined in Article 38(1)(c) of the Statute of the International Court of Justice (ICJ) or, rather, whether it should be approached as a principle relating to cognate obligations which exist more frequently in treaty obligations.
{"title":"Angst of the Exceptio Inadimplenti Non Est Adimplendum in International Law","authors":"M. Fitzmaurice","doi":"10.1093/oso/9780198789321.003.0016","DOIUrl":"https://doi.org/10.1093/oso/9780198789321.003.0016","url":null,"abstract":"The legal character of the exceptio inadimplenti non est adimplendum or exceptio inadimpleti contractus is one of those institutions in international law the legal character of which remains somewhat shrouded in mystery. In broad brushstrokes, the exceptio implies that ‘a condition for one party’s compliance with a synallagmatic obligation is the continued compliance of the other party with that obligation’. There are a myriad of unresolved issues concerning the exceptio which are both of a theoretical and a practical nature. As will be explained, there are different forms of the exceptio—a fact which is frequently overlooked. The relationship of the exceptio with the rules on countermeasures and material breach of a treaty are very unclear and have yet to be examined and analysed in depth. From a more theoretical point of view, it is interesting to explore whether the exceptio belongs to general principles of law as enshrined in Article 38(1)(c) of the Statute of the International Court of Justice (ICJ) or, rather, whether it should be approached as a principle relating to cognate obligations which exist more frequently in treaty obligations.","PeriodicalId":102121,"journal":{"name":"Exceptions in International Law","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124090904","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-06-18DOI: 10.1093/oso/9780198789321.003.0003
G. Sartor
The structure of rule systems in different domains is addressed. A rule system is viewed as a mechanism delivering certain outputs (the system’s conclusions) given certain external inputs, and certain internal structures and processes. It is specified what it means for a rule system to consist of rules and exceptions rather than of flat rules. It is argued that there are three main exception structures: inhibitory input links, inhibitory rules, and prioritized conflicting rules. These structures can be found in many rule systems, including the law, and international law in particular. They make it so that rule systems provide defeasible outputs in response to incoming signals, namely outputs that may no longer be provided when a larger input set is given. It is argued that the current jurisprudential debate on rules and exceptions (as well as the debate on defeasibility) needs to be lifted beyond the law for clarity to be achieved on the existence, genesis, and function of systems of rules and exceptions.
{"title":"Rules and Exceptions, in Law and Elsewhere","authors":"G. Sartor","doi":"10.1093/oso/9780198789321.003.0003","DOIUrl":"https://doi.org/10.1093/oso/9780198789321.003.0003","url":null,"abstract":"The structure of rule systems in different domains is addressed. A rule system is viewed as a mechanism delivering certain outputs (the system’s conclusions) given certain external inputs, and certain internal structures and processes. It is specified what it means for a rule system to consist of rules and exceptions rather than of flat rules. It is argued that there are three main exception structures: inhibitory input links, inhibitory rules, and prioritized conflicting rules. These structures can be found in many rule systems, including the law, and international law in particular. They make it so that rule systems provide defeasible outputs in response to incoming signals, namely outputs that may no longer be provided when a larger input set is given. It is argued that the current jurisprudential debate on rules and exceptions (as well as the debate on defeasibility) needs to be lifted beyond the law for clarity to be achieved on the existence, genesis, and function of systems of rules and exceptions.","PeriodicalId":102121,"journal":{"name":"Exceptions in International Law","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130435595","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-06-18DOI: 10.1093/oso/9780198789321.003.0012
Eleni Methymaki, A. Tzanakopoulos
The relationship between the rules on state jurisdiction and sovereign immunity has been the subject of a long-standing debate among international lawyers, as well as international and domestic courts. Although the starting point of any discussion is the jurisdiction of the territorial state, it is also accepted that domestic courts cannot exercise such jurisdiction over another sovereign’s acts. This latter rule has its own exceptions, namely that a state is not entitled to immunity for acts performed in a commercial capacity and certain other limited circumstances. What are the consequences of such a rule-exception-exception to the exception relationship, and do they affect the waiver of immunity, the burden of proof, or the interpretation of these norms? This chapter argues that the relationship between jurisdiction and immunity as rule and exception has, in the final analysis, no particular normative weight in their application and interpretation by courts and other law-applying actors.
{"title":"Freedom with Their Exception","authors":"Eleni Methymaki, A. Tzanakopoulos","doi":"10.1093/oso/9780198789321.003.0012","DOIUrl":"https://doi.org/10.1093/oso/9780198789321.003.0012","url":null,"abstract":"The relationship between the rules on state jurisdiction and sovereign immunity has been the subject of a long-standing debate among international lawyers, as well as international and domestic courts. Although the starting point of any discussion is the jurisdiction of the territorial state, it is also accepted that domestic courts cannot exercise such jurisdiction over another sovereign’s acts. This latter rule has its own exceptions, namely that a state is not entitled to immunity for acts performed in a commercial capacity and certain other limited circumstances. What are the consequences of such a rule-exception-exception to the exception relationship, and do they affect the waiver of immunity, the burden of proof, or the interpretation of these norms? This chapter argues that the relationship between jurisdiction and immunity as rule and exception has, in the final analysis, no particular normative weight in their application and interpretation by courts and other law-applying actors.","PeriodicalId":102121,"journal":{"name":"Exceptions in International Law","volume":"149 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122414133","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-06-18DOI: 10.1093/oso/9780198789321.003.0005
J. Viñuales
The purpose of this chapter is, first, to identify seven legal techniques through which certain situations that could otherwise fall within the scope of a rule or a set of rules are excluded from it (scope clauses, carve-outs, flexibilities, derogations, exceptions stricto sensu, excuses, and circumstances precluding wrongfulness) and, secondly, to clarify the implications (technical and practical) of using such techniques and the terminology that comes with them. Using the term ‘exception’ rather than other terms such as ‘carve-out’ or ‘exemption’ may have significant legal implications as regards matters such as (i) the burden of proof, (ii) the interpretative approach, (iii) the degree of deference accorded to a respondent under a provision, or (iv) the interplay with certain referral clauses.
{"title":"Seven Ways of Escaping a Rule","authors":"J. Viñuales","doi":"10.1093/oso/9780198789321.003.0005","DOIUrl":"https://doi.org/10.1093/oso/9780198789321.003.0005","url":null,"abstract":"The purpose of this chapter is, first, to identify seven legal techniques through which certain situations that could otherwise fall within the scope of a rule or a set of rules are excluded from it (scope clauses, carve-outs, flexibilities, derogations, exceptions stricto sensu, excuses, and circumstances precluding wrongfulness) and, secondly, to clarify the implications (technical and practical) of using such techniques and the terminology that comes with them. Using the term ‘exception’ rather than other terms such as ‘carve-out’ or ‘exemption’ may have significant legal implications as regards matters such as (i) the burden of proof, (ii) the interpretative approach, (iii) the degree of deference accorded to a respondent under a provision, or (iv) the interplay with certain referral clauses.","PeriodicalId":102121,"journal":{"name":"Exceptions in International Law","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127340885","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-06-18DOI: 10.1093/oso/9780198789321.003.0015
R. Kolb
This chapter attempts to shed some light on the rule-exception scheme through the lens of the doctrine of fundamental change of circumstances in international law. In classical international law, the doctrine was considered either as non-existent, or under the guise of private law analogies or specially construed for the purposes of international law. The extent of the ‘exception’ to the ordinary law wrought by the clause was different in the context of these three versions: nought in the first case, related to specific treaties in the second, related to the entire legal order in the third. With the Vienna Convention on the Law of Treaties (VCLT) codification of 1969, the reach of the doctrine was reduced to an extremely narrowly tailored treaty-exception. Since then, the doctrine has rarely been invoked—even more rarely with success—in international litigation. The inroad of that exception has thus been progressively narrowed, if not extinguished.
{"title":"The Construction of the Rebus Sic Stantibus Clause in International LawException, Rule, or Remote Spectator?","authors":"R. Kolb","doi":"10.1093/oso/9780198789321.003.0015","DOIUrl":"https://doi.org/10.1093/oso/9780198789321.003.0015","url":null,"abstract":"This chapter attempts to shed some light on the rule-exception scheme through the lens of the doctrine of fundamental change of circumstances in international law. In classical international law, the doctrine was considered either as non-existent, or under the guise of private law analogies or specially construed for the purposes of international law. The extent of the ‘exception’ to the ordinary law wrought by the clause was different in the context of these three versions: nought in the first case, related to specific treaties in the second, related to the entire legal order in the third. With the Vienna Convention on the Law of Treaties (VCLT) codification of 1969, the reach of the doctrine was reduced to an extremely narrowly tailored treaty-exception. Since then, the doctrine has rarely been invoked—even more rarely with success—in international litigation. The inroad of that exception has thus been progressively narrowed, if not extinguished.","PeriodicalId":102121,"journal":{"name":"Exceptions in International Law","volume":"145 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122151980","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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