Pub Date : 2020-06-18DOI: 10.1093/oso/9780198789321.003.0007
A. Dolcetti, G. Ratti
In this chapter, we discuss the way in which implicit exceptions operate in the context of international law, with special reference to peremptory norms of general international law (i.e. jus cogens). To do so, we develop a theoretical model of exceptions based upon the notion of normative conflict. This model allows us to explain the relationship between derogation and defeasibility of peremptory norms of general international law. The chapter is organized in three parts. We begin by explaining the difference between explicit and implicit exceptions in light of the way in which different types of norms may conflict (section 1). We then consider the existence of explicit and implicit exceptions in international law vis-à-vis the existence of peremptory norms of general international law, which are by definition non-derogable (section 2). Finally, we employ our theoretical model—illustrated in section 1—to analyse Article 53 of the Vienna Convention on the Law of Treaties 1969, arguing that, in relation to jus cogens, the idea of non-derogation should be understood as referring to implicit and not explicit exceptions (section 3).
{"title":"Derogation and Defeasibility in International Law","authors":"A. Dolcetti, G. Ratti","doi":"10.1093/oso/9780198789321.003.0007","DOIUrl":"https://doi.org/10.1093/oso/9780198789321.003.0007","url":null,"abstract":"In this chapter, we discuss the way in which implicit exceptions operate in the context of international law, with special reference to peremptory norms of general international law (i.e. jus cogens). To do so, we develop a theoretical model of exceptions based upon the notion of normative conflict. This model allows us to explain the relationship between derogation and defeasibility of peremptory norms of general international law. The chapter is organized in three parts. We begin by explaining the difference between explicit and implicit exceptions in light of the way in which different types of norms may conflict (section 1). We then consider the existence of explicit and implicit exceptions in international law vis-à-vis the existence of peremptory norms of general international law, which are by definition non-derogable (section 2). Finally, we employ our theoretical model—illustrated in section 1—to analyse Article 53 of the Vienna Convention on the Law of Treaties 1969, arguing that, in relation to jus cogens, the idea of non-derogation should be understood as referring to implicit and not explicit exceptions (section 3).","PeriodicalId":102121,"journal":{"name":"Exceptions in International Law","volume":"12 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":"123671186","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/9780198789321.003.0020
Caroline Henckels
Despite their increasing prevalence in investment treaties, the purpose and role of exception clauses is not well understood. Inconsistent interpretations of exception clauses by investment tribunals and annulment committees has created uncertainty about the nature of states’ treaty commitments to foreign investors and the way exceptions to those commitments should be dealt with in investor–state dispute settlement. This chapter argues that exceptions should be understood as limiting the scope of the substantive investment obligations such that those obligations do not apply to measures that come within the exception, and not as affirmative defences that operate to justify what would otherwise be prohibited by the treaty; and that, as such, security exceptions are conceptually distinct from the customary defence of necessity and are not lex specialis manifestations of the defence.
{"title":"Scope Limitation or Affirmative Defence?","authors":"Caroline Henckels","doi":"10.1093/OSO/9780198789321.003.0020","DOIUrl":"https://doi.org/10.1093/OSO/9780198789321.003.0020","url":null,"abstract":"Despite their increasing prevalence in investment treaties, the purpose and role of exception clauses is not well understood. Inconsistent interpretations of exception clauses by investment tribunals and annulment committees has created uncertainty about the nature of states’ treaty commitments to foreign investors and the way exceptions to those commitments should be dealt with in investor–state dispute settlement. This chapter argues that exceptions should be understood as limiting the scope of the substantive investment obligations such that those obligations do not apply to measures that come within the exception, and not as affirmative defences that operate to justify what would otherwise be prohibited by the treaty; and that, as such, security exceptions are conceptually distinct from the customary defence of necessity and are not lex specialis manifestations of the defence.","PeriodicalId":102121,"journal":{"name":"Exceptions in International Law","volume":"103 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":"124277496","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/9780198789321.003.0019
K. Ambos
This chapter analyses the concept of defences in international criminal law. It starts off with some general conceptual remarks defining defences, on a meta level, as exceptions to the (secondary) rule expressed by the respective offence; as such, they do not invalidate this rule—the prohibition sub poena by the offence—but entail its non-application. In the main part, the chapter proposes a systematization along the lines of a substantive/procedural distinction (substantive reasons to exclude individual criminal responsibility versus procedural obstacles/bars to criminal prosecution) and further distinguishing between full and partial defences, justifications and excuses, failure of proof defences, and alibi. On the basis of this classification, a hierarchy of defences is suggested.
{"title":"Defences in International Criminal LawExceptions in International Law?","authors":"K. Ambos","doi":"10.1093/oso/9780198789321.003.0019","DOIUrl":"https://doi.org/10.1093/oso/9780198789321.003.0019","url":null,"abstract":"This chapter analyses the concept of defences in international criminal law. It starts off with some general conceptual remarks defining defences, on a meta level, as exceptions to the (secondary) rule expressed by the respective offence; as such, they do not invalidate this rule—the prohibition sub poena by the offence—but entail its non-application. In the main part, the chapter proposes a systematization along the lines of a substantive/procedural distinction (substantive reasons to exclude individual criminal responsibility versus procedural obstacles/bars to criminal prosecution) and further distinguishing between full and partial defences, justifications and excuses, failure of proof defences, and alibi. On the basis of this classification, a hierarchy of defences is suggested.","PeriodicalId":102121,"journal":{"name":"Exceptions in International Law","volume":"41 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":"115360399","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/9780198789321.001.0001
J. Hage, Antonia M. Waltermann, G. Solorzano
In international law, as in every legal system, rules are invariably subject to exceptions. This book brings together experts in legal theory and international law to investigate this phenomenon from both a theoretical and doctrinal perspective. It begins with several chapters looking at the relationship between rules and exceptions from different jurisprudential perspectives. These chapters serve to narrow down the principal types of exceptions, and what is at stake in deciding whether a given legal condition should be seen as part of a rule or as a self-standing exception. An important element is deciding how to allocate the burden of proving that the facts relevant to the condition are present. Subsequent chapters draw on these theoretical analyses, applying their insights to the way that exceptions exist in a wide range of topics and areas of international law, including self-defence, exceptions in treaty law, circumstances precluding wrongfulness in state responsibility, and the prohibition on derogations to jus cogens, as well as the specific regimes of international environmental law, international trade law, international investment law, and international criminal law.
{"title":"Exceptions in International Law","authors":"J. Hage, Antonia M. Waltermann, G. Solorzano","doi":"10.1093/oso/9780198789321.001.0001","DOIUrl":"https://doi.org/10.1093/oso/9780198789321.001.0001","url":null,"abstract":"In international law, as in every legal system, rules are invariably subject to exceptions. This book brings together experts in legal theory and international law to investigate this phenomenon from both a theoretical and doctrinal perspective. It begins with several chapters looking at the relationship between rules and exceptions from different jurisprudential perspectives. These chapters serve to narrow down the principal types of exceptions, and what is at stake in deciding whether a given legal condition should be seen as part of a rule or as a self-standing exception. An important element is deciding how to allocate the burden of proving that the facts relevant to the condition are present. Subsequent chapters draw on these theoretical analyses, applying their insights to the way that exceptions exist in a wide range of topics and areas of international law, including self-defence, exceptions in treaty law, circumstances precluding wrongfulness in state responsibility, and the prohibition on derogations to jus cogens, as well as the specific regimes of international environmental law, international trade law, international investment law, and international criminal law.","PeriodicalId":102121,"journal":{"name":"Exceptions in International Law","volume":"298 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":"127744085","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}
This chapter initially examines philosophical approaches to the international use of force in an historical context before examining the development of the doctrine of collective security as the unifying value of international relations at the end of the First World War and subsequently. States’ right of self-defence is seen as an exception to this doctrine. Drawing on analytical legal theory and theories of legal reasoning, it explores the nature of an exception to a rule. This classification can be difficult to identify as legal propositions can compete rather than exist in a hierarchical rule-exception relationship. The parameters of self-defence as an exception to the doctrine of collective security and the prohibition on the use of force is explored in this light, casting doubt on the validity of contemporary attempts to expand self-defence to justify extra-territorial attacks on non-state actors within states deemed unwilling or unable to curb their hostile activity.
{"title":"Exceptions","authors":"I. Scobbie","doi":"10.2139/ssrn.3340197","DOIUrl":"https://doi.org/10.2139/ssrn.3340197","url":null,"abstract":"This chapter initially examines philosophical approaches to the international use of force in an historical context before examining the development of the doctrine of collective security as the unifying value of international relations at the end of the First World War and subsequently. States’ right of self-defence is seen as an exception to this doctrine. Drawing on analytical legal theory and theories of legal reasoning, it explores the nature of an exception to a rule. This classification can be difficult to identify as legal propositions can compete rather than exist in a hierarchical rule-exception relationship. The parameters of self-defence as an exception to the doctrine of collective security and the prohibition on the use of force is explored in this light, casting doubt on the validity of contemporary attempts to expand self-defence to justify extra-territorial attacks on non-state actors within states deemed unwilling or unable to curb their hostile activity.","PeriodicalId":102121,"journal":{"name":"Exceptions in International Law","volume":"64 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130850393","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 : 2017-03-18DOI: 10.1093/oso/9780198789321.003.0011
Federica I. Paddeu
This chapter seeks to clarify the concept of circumstances precluding wrongfulness in international law which, according to Ian Brownlie, is a concept that ‘had never been properly worked out’ by the ILC during its work on the Articles on State Responsibility. Indeed, it is not infrequent to find in the case law and the literature diverse, and often contradicting, explanations of this concept and its effects. Two misunderstandings which are recurrent in international law are especially troubling: (i) the notion that justified conduct is nevertheless a ‘breach’ of international law; and (ii) the qualification of justified conduct as ‘non-wrongful’ or ‘unlawful with precluded wrongfulness’, and variations thereof. The chapter first elucidates the concept of circumstances precluding wrongfulness and its relation with the notions of breach, internationally wrongful act, and excuse. It then considers the operation of these circumstances by means of two different models for the representation of reasoning with justifications: one based on deductive reasoning and the other on dialogic reasoning. The chapter concludes that justified conduct does not constitute a breach of international law and that it must be qualified as lawful.
{"title":"Clarifying the Concept of Circumstances Precluding Wrongfulness (Justifications) in International Law","authors":"Federica I. Paddeu","doi":"10.1093/oso/9780198789321.003.0011","DOIUrl":"https://doi.org/10.1093/oso/9780198789321.003.0011","url":null,"abstract":"This chapter seeks to clarify the concept of circumstances precluding wrongfulness in international law which, according to Ian Brownlie, is a concept that ‘had never been properly worked out’ by the ILC during its work on the Articles on State Responsibility. Indeed, it is not infrequent to find in the case law and the literature diverse, and often contradicting, explanations of this concept and its effects. Two misunderstandings which are recurrent in international law are especially troubling: (i) the notion that justified conduct is nevertheless a ‘breach’ of international law; and (ii) the qualification of justified conduct as ‘non-wrongful’ or ‘unlawful with precluded wrongfulness’, and variations thereof. The chapter first elucidates the concept of circumstances precluding wrongfulness and its relation with the notions of breach, internationally wrongful act, and excuse. It then considers the operation of these circumstances by means of two different models for the representation of reasoning with justifications: one based on deductive reasoning and the other on dialogic reasoning. The chapter concludes that justified conduct does not constitute a breach of international law and that it must be qualified as lawful.","PeriodicalId":102121,"journal":{"name":"Exceptions in International Law","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125122741","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 : 2016-11-03DOI: 10.1093/oso/9780198789321.003.0006
Joost Pauwelyn
The burden of proving a defence is said to be on the party invoking it. As trite as this proposition may sound, in international law it hides a far more complex litigation reality. Distinctions must be made both in terms of types of claims in defence, and types of burdens this may impose on the respondent. This chapter distinguishes six different claims in defence: (i) objections to jurisdiction, (ii) objections to admissibility, (iii) exemptions, (iv) absence of breach, (v) exceptions, and (vi) defences under secondary rules. For each of these six claims in defence, five types of burdens are identified: (i) burden of raising a claim in defence, (ii) burden of production of evidence, (iii) burden of persuasion, (iv) quantum of proof, and (v) standard of review. Although for some claims in defence some types of burden are on the defendant, this is certainly not the case for all.
{"title":"Defences and the Burden of Proof in International Law","authors":"Joost Pauwelyn","doi":"10.1093/oso/9780198789321.003.0006","DOIUrl":"https://doi.org/10.1093/oso/9780198789321.003.0006","url":null,"abstract":"The burden of proving a defence is said to be on the party invoking it. As trite as this proposition may sound, in international law it hides a far more complex litigation reality. Distinctions must be made both in terms of types of claims in defence, and types of burdens this may impose on the respondent. This chapter distinguishes six different claims in defence: (i) objections to jurisdiction, (ii) objections to admissibility, (iii) exemptions, (iv) absence of breach, (v) exceptions, and (vi) defences under secondary rules. For each of these six claims in defence, five types of burdens are identified: (i) burden of raising a claim in defence, (ii) burden of production of evidence, (iii) burden of persuasion, (iv) quantum of proof, and (v) standard of review. Although for some claims in defence some types of burden are on the defendant, this is certainly not the case for all.","PeriodicalId":102121,"journal":{"name":"Exceptions in International Law","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-11-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127065258","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}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：