Reasons, Institutions, Authorities

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.

Defences in International Criminal LawExceptions in International Law?

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.

Exceptions in Multilateral Environmental Agreements

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.

Defences in the Law of State ResponsibilityA View from Jurisprudence

Ongoing discussions among international lawyers on defences in state responsibility have close analogies with debates in two other fields: debates in general legal theory on defeasibility in law, and debates in criminal law theory (and philosophy) on the elements of criminal responsibility. The similarities are not surprising. But it is striking how little cross-fertilization there seems to have been. For jurisprudence and criminal law scholars have developed a number of points and distinctions that international law theorists working on defences should find helpful. This chapter illustrates these claims. Section 2 looks at defences from the point of view of general legal theory, and section 3 does the same from the point of view of criminal law theory, recommending specific solutions to particular problems. Section 4 then shows how these contributions can help to answer some persistent questions surrounding defences in the law of state responsibility.

Defences and the Burden of Proof in International Law

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.

Exceptions in International Law

In order to understand the role of exceptions in international law, this chapter distinguishes between applicability and application of rules. An exception to a rule in a case is defined as the situation in which a rule is applicable to, but nevertheless not applied to, the case. This is possible because the applicability of a rule is merely considered to be a reason for applying the rule, which can be outweighed by reasons against application. This chapter argues that exceptions to rules are made mainly for two purposes: to create a division in the burden of proof, or because the legal consequences of the rule in the case are undesirable. The chapter also discusses techniques used by law to avoid rule conflicts and the need for making exceptions, including subscripting, scope limitations, interpretation, derogation, incorporation and reference, and limitations on rule-creating powers.

Exemptions, Qualifications, Derogations, and Excuses in International Human Rights Law

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.

The Construction of the Rebus Sic Stantibus Clause in International LawException, Rule, or Remote Spectator?

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.

Both the Rule and the Exception

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.

Exceptions

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.