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Distinctive Characteristics of Peremptory Norms

Alexander Orakhelashvili

in Peremptory Norms in International Law

This chapter focuses on distinctive characteristics of peremptory norms, in particular on its absolute character, non-derogability, and the effect-oriented profile.

The Verifiability of the Truth of a Statement—The Non-verifiability of the Validity of a Norm

Hans Kelsen

in General Theory of Norms

An important difference between the truth of a statement and the validity of a norm is that the truth of a statement is verifiable — i.e. it must be possible to prove it to be true or false — while ... More

An important difference between the truth of a statement and the validity of a norm is that the truth of a statement is verifiable — i.e. it must be possible to prove it to be true or false — while the validity of a norm is not. The validity of a norm is not verifiable because it is its specific existence and can no more be true or false than the existence of a fact. Only the truth of a statement about the existence of a fact is verifiable, since verifying means ascertaining the truth. The only thing which remains open to question is whether the statement about the validity of a norm is verifiable. And this question must be answered in the affirmative, since this statement, like any other statement, can be true or false, and so must be verifiable.Less

The Principal Practices and Primarily Affected Rights

Noam Lubell

in Extraterritorial Use of Force Against Non-State Actors

This chapter examines the human rights primarily affected by extraterritorial force against non-state actors. Extraterritorial forcible measures used by states against individuals often include state ... More

This chapter examines the human rights primarily affected by extraterritorial force against non-state actors. Extraterritorial forcible measures used by states against individuals often include state agents (acting outside their own sovereign territory) being responsible for one or more of: lethal or potentially lethal force, ill-treatment of persons in their custody, abduction, and deprivation of liberty. These are examined in turn, as is the possibility of restricting or derogating from these rights.Less

The Principles of Conflict Resolution

Erich Vranes

in Trade and the Environment: Fundamental Issues in International Law, WTO Law, and Legal Theory

Principal questions regarding the so-called ‘rules’ on conflict resolution such as the lex posterior maxim are still unresolved and disputed in international law just as in domestic law doctrine. ... More

Principal questions regarding the so-called ‘rules’ on conflict resolution such as the lex posterior maxim are still unresolved and disputed in international law just as in domestic law doctrine. These questions concern the legal nature of these maxims, their number, contents and legal consequences. It also relates to the structure of the legal order and basic principles such as pacta sunt servanda. This chapter argues that principles such as the lex specialis and lex posterior maxims should be regarded as subordinate interpretative criteria, which implies inter alia that there can be no abstract hierarchy between the lex posterior and lex specialis maxims. The chapter also examines problems relating to the lex superior, lex posterior, and lex specialis maxims, both in legal theory and international law. It analyses the problems of successive (multilateral) treaties, barriers to derogation (pacta tertiis principle etc.), and an eventual hierarchy of conflict principles in international law.Less

The Human Right to Non-discrimination

Moeckli Daniel

in Human Rights and Non-discrimination in the 'War on Terror'

This chapter first sets out the sources of the right to equality and non-discrimination in international, regional, and national law. It then analyses the different tests used by international human ... More

This chapter first sets out the sources of the right to equality and non-discrimination in international, regional, and national law. It then analyses the different tests used by international human rights bodies and national courts to distinguish between permissible and impermissible differential treatment and develops, based on this jurisprudence, a common standard of non-discrimination that can be applied throughout the study to assess specific anti-terrorism measures. According to this standard, differential treatment on the basis of citizenship status, nationality, ‘race’, national or ethnic origin, or religion is only permissible if there are objective and reasonable grounds for it. The existence of a terrorist threat does not, as such, alter this obligation. Therefore, anti-terrorism measures that make distinctions on the basis of any of these criteria will only be compatible with the human right to non-discrimination if they are a proportionate means of achieving the (legitimate) aim of countering terrorism.Less

Benefits of Empathy-Induced Altruism

C. Daniel Batson

in Altruism in Humans

Empathy-induced altruism offers a number of benefits. Most obvious are the benefits that accrue to individuals whose needs elicit empathic concern, but research suggests that empathy-induced ... More

Empathy-induced altruism offers a number of benefits. Most obvious are the benefits that accrue to individuals whose needs elicit empathic concern, but research suggests that empathy-induced altruistic motivation can also benefit groups in need. It may even benefit the person experiencing this motivation. The potential benefits discussed in this chapter are: More, more sensitive, and less fickle help; less aggression and derogation of the victims of injustice; increased cooperation and care in conflict situations, including conflict in bargaining and negotiations, ethnic, religious, and political conflicts, and racial conflicts in educational settings; improved attitudes toward, and action on behalf of, stigmatized groups; more positive close relationships, including friendships and romantic relationships; and better mental and physical health for the altruistic helper.Less

Interpreting Limits

Katharine G. Young

in Constituting Economic and Social Rights

This chapter considers how the application of economic and social rights may be limited according to the same legal apparatus that establishes them. A six-part presentation of the varying modes of ... More

This chapter considers how the application of economic and social rights may be limited according to the same legal apparatus that establishes them. A six-part presentation of the varying modes of limiting rights is provided, which includes the doctrines and textual requirements of progressive realization, reasonable limitation, suspension, derogation, override, reservation, amendment, and underenforcement. Constitutional law and international human rights law ensure that these constraints on rights are subject to their own justificatory constraints. Two processes of justification, which are contained in reasonableness review and proportionality analysis, are discussed. These are examined in light of the South African Constitution and the South African Constitutional Court’s approach to interpreting the limits of economic and social rights, and in light of other comparative examples from Germany, Canada and the European and United Nations human rights instrumentsLess

Special and Differential Treatment in the WTO Agreements: A Legal Analysis

Sonia E. Rolland

in Development at the World Trade Organization

This chapter examines the legal nature of Special and Differential Treatment (SDT) provisions in the WTO agreements. What rights and obligations do they create and for whom? Using the language of the ... More

This chapter examines the legal nature of Special and Differential Treatment (SDT) provisions in the WTO agreements. What rights and obligations do they create and for whom? Using the language of the provisions as well as developments in international law generally, this chapter argues that many SDT provisions could be given more legal force than has been the case so far, and hence become operational tools for developing members. It then surveys the implementation record of SDT provisions to assess whether developing members have in fact used them since the inception of the GATT. It demonstrates that only a handful of SDT provisions have been invoked consistently, and even some of those have fallen into disuse since the inception of the WTO.Less

Emergencies and Derogations

A. W. BRIAN SIMPSON

in Human Rights and the End of Empire: Britain and the Genesis of the European Convention

This chapter deals more fully with the colonial emergencies and insurrections which accompanied the winding down of the colonial empire, of the mechanisms of repression which were used to combat ... More

This chapter deals more fully with the colonial emergencies and insurrections which accompanied the winding down of the colonial empire, of the mechanisms of repression which were used to combat them, and of the derogations to the European Convention which were submitted in response to them. It deals in particular detail with the exile of Kabaka of Buganda, and with the EOKA emergency in Cyprus: the legal measures adopted in response to it, the exile of Archbishop Makarios, and the use of the death penalty there, which triggered the first inter state proceedings, brought by Greece against the UK, under the Convention.Less

The Outcome of the Two Applications

A. W. BRIAN SIMPSON

in Human Rights and the End of Empire: Britain and the Genesis of the European Convention

This chapter gives an account of the visit of the sub-commission to Cyprus, the oral hearings, hostility of the colonial authorities and their management of the visit, the part played by the UK ... More

This chapter gives an account of the visit of the sub-commission to Cyprus, the oral hearings, hostility of the colonial authorities and their management of the visit, the part played by the UK member, Humphrey Waldock, and the Greek member Eustathiades, the report of the sub-commission, with detailed discussion of its views on Article 15 of the Convention, on the doctrine of the margin of appreciation, on irregular derogations, on curfews and collective punishments, and on arrest and detention. It also gives an account of Greece's second application, Application 299/57, which alleged forty-nine cases of torture, which are discussed in detail, and of the appointment of a second sub-commission, and explains how the UK lawyers succeeded in delaying the investigation, which was never completed, events being overtaken by the Zurich political settlement of the dispute, with the report in the first case kept secret and the investigation of the second halted.Less

Coming In, Rather Reluctantly, From the Cold

A. W. BRAIN SIMPSON

in Human Rights and the End of Empire: Britain and the Genesis of the European Convention

This chapter gives an account of the reappraisal of the convention which followed the Cyprus cases, and the problems it caused for UK colonial office. It describes the later derogations and the use ... More

This chapter gives an account of the reappraisal of the convention which followed the Cyprus cases, and the problems it caused for UK colonial office. It describes the later derogations and the use of emergency powers in Aden, Nyasaland, Northern Rhodesia, Sarawak, North Borneo, and Kenya and in Northern Ireland. It describes how the UK eventually accepted the jurisdiction of the court and the right of individual petition, relating this to the adoption of the policy of decolonization, and the chapter discusses the significance of the Lawless case, and concludes with brief discussion of the Human Rights Act of 1998.Less

Derogations Under Human Rights Treaties*

Rosalyn Higgins Dbe Qc

in Themes and Theories

This chapter discusses derogations from human rights obligations. It is limited to an examination of derogations from rights enunciated in international treaties. Both individuals and states have ... More

This chapter discusses derogations from human rights obligations. It is limited to an examination of derogations from rights enunciated in international treaties. Both individuals and states have rights and obligations. Recent years have witnessed a considerable drive towards improving the position of the individual, accompanied by a widespread feeling that the traditional views on the place of the individual in international law, and the traditional rules on nationality of claims, tipped the scales exceedingly in favour of the state. In attempting to redress the balance, it is necessary, however, for improved human rights to be matched by accommodations in favour of the reasonable needs of the state to perform its public duties for the common good. A variety of techniques are available for effecting such accommodations, namely, the possibility of the denunciation of a treaty, reservations as to its terms, articles stating that individual rights can only be exercised in conformity with the rights of others, clauses in the text interpreting the scope of rights guaranteed, ‘clawback’ clauses and derogations clauses stricto sensu.Less

Separate Opinion of Judge Higgins Oil Platforms (Islamic Republic of Iran v United States of America), Judgment

Rosalyn Higgins Dbe Qc

in Themes and Theories

In its final submissions, Iran asked the International Court of Justice to find that the military action by the United States against the oil platforms referred to in its application constituted a ... More

In its final submissions, Iran asked the International Court of Justice to find that the military action by the United States against the oil platforms referred to in its application constituted a violation of Article X, paragraph 1, of the Treaty of Amity. Neither Article XX of the Iran–United States Treaty nor Article XXI of the Nicaragua–United States Treaty appear to be a derogation clause in the normally understood sense of that term. The application of Iran of November 1992 instituting proceedings in this case asked the Court for a judgment on five points. This chapter gives an opinion on the case.Less

Derogation: The Repeal of the Validity of a Norm by another Norm

Hans Kelsen

in General Theory of Norms

The question of derogation is the question of the sphere of validity of norms, specifically the temporal sphere of validity, since derogation terminates the validity of a norm in time. Derogation ... More

The question of derogation is the question of the sphere of validity of norms, specifically the temporal sphere of validity, since derogation terminates the validity of a norm in time. Derogation concerns the validity of a norm and not the act of positing the norm. Only the former can be repealed; not the latter. Since a derogating norm is not concerned with behaviour, it cannot be observed and applied (as other norms can). And consequently, it cannot be violated either. Once it has fulfilled its function, that is, once the norm to which it relates has lost its validity, the derogating norm loses its validity with respect to the norm whose validity it repealed.Less

The Truth of a Statement and the Validity of a Norm

Hans Kelsen

in General Theory of Norms

A statement must be made, not in order to be true, but in order that we be able to judge it true or false. It is true, even if it is not made. That heat causes a metal to expand is true, even if no ... More

A statement must be made, not in order to be true, but in order that we be able to judge it true or false. It is true, even if it is not made. That heat causes a metal to expand is true, even if no one makes this statement. That murder is to be punished by death is valid only if this norm is posited by the legislator. A statement is true if what it states exists. Even a false statement is a statement. If the decision of a judge ‘X is to be imprisoned’ is not valid for some reason or other, then the decision is ‘void’ (i.e. it is not a norm); this meaning does not exist.Less

The Protection of Human Rights in Emergency Situations under Customary International Law

Jaime Oraá

in The Reality of International Law: Essays in Honour of Ian Brownlie

This chapter examines the provisions of customary international law concerning the protection of human rights in emergency situations. It discusses the derogation clause in human-rights treaties, ... More

This chapter examines the provisions of customary international law concerning the protection of human rights in emergency situations. It discusses the derogation clause in human-rights treaties, which establishes a legal regime regulating the protection of human rights in emergency situations. It highlights the non-participation of about one-third of the states of the international community in international treaties and the occurrence of the gravest violations of fundamental human rights in the context of states of emergency.Less

Derogation of Freedom of Movement

Chaloka Beyani

in Human Rights Standards and the Free Movement of People Within States

At times when nations are undergoing states of war or national emergency, it can be noticed that throughout history, States have veered away from the protection of human rights. The States attempt to ... More

At times when nations are undergoing states of war or national emergency, it can be noticed that throughout history, States have veered away from the protection of human rights. The States attempt to justify such actions through pointing out how the State should take the proper measures in maintaining its stability and ensuring its security against certain forms of delinquency that puts both individual and collective interests at risk. Although human rights standards recognize that there are certain incidences in which the principle of derogation must be imposed, a set of criteria that is well-defined is established to limit the occurrences of its application since derogation during states of emergency is believed to lessen the quality and degree of human rights.Less

Conclusions

Evelyn Ellis and Philippa Watson

in EU Anti-Discrimination Law

In the final chapter conclusions on the present state of equality law are presented. After a brief overview of the evolution of discrimination discussion turns to the pivotal role of the CJEU in the ... More

In the final chapter conclusions on the present state of equality law are presented. After a brief overview of the evolution of discrimination discussion turns to the pivotal role of the CJEU in the development of equal rights. Finally suggestions are made as to how the existing law on non-discrimination and equality can be strengthened.Less