Exceptions in international law

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Exceptions to rules play an important role in law, and in particular in international law. A proper understanding of exceptions is therefore of crucial importance for legal practice, legal doctrine and legal theory. In order to understand the role of exceptions in international law, this chapter – co-authored with Jaap Hage and Gustavo Arosemena – 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.

Hage, J., Waltermann, A., & Arosemena Solorzano, G. (2020). Exceptions in International Law. In L. Bartels, & F. Paddeu (Eds.), Exceptions in international law (pp. 11-34). Oxford University Press.

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