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Exceptions in International Law$
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Lorand Bartels and Federica Paddeu

Print publication date: 2020

Print ISBN-13: 9780198789321

Published to Oxford Scholarship Online: August 2020

DOI: 10.1093/oso/9780198789321.001.0001

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Derogation and Defeasibility in International Law

Derogation and Defeasibility in International Law

Chapter:
(p.108) 7 Derogation and Defeasibility in International Law
Source:
Exceptions in International Law
Author(s):

Andrea Dolcetti

Giovanni Battista Ratti

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198789321.003.0007

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).

Keywords:   Defeasibility, derogation, exceptions, peremptory norms, jus cogens

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