Unilateral Exceptions to International Law: Systematic Legal Analysis and Critique of Doctrines that Seek to Deny or Reduce the Applicability of Human Rights Norms in the Fight against Terrorism

Abstract

This paper on unilateral exceptions to human rights and international law in the fight against terrorism seeks to take stock of a whole range of arguments, doctrines or constructions that states may resort to when seeking to justify their unilateral exceptions to human rights norms in the fight against terrorism. The following constructions are discussed: (a) Denial of the applicability of human rights law during armed conflict (b) Denial to individuals of status as protected persons under international humanitarian law (c) The United Nations Charter as lex superior compared to human rights obligations (d) Denial of attribution to an individual state of action by intergovernmental organizations (e) Denial of extraterritorial effect of human rights (treaties) (f) Reservations to human rights treaties (g) Persistent objection to norms of customary international law (h) Derogation during times of emergency (i) Overly broad use of permissible limitations or restrictions (j) Withdrawal from treaties. Many of those constructions have a valid legal basis and a proper scope of application. However, they often affect only a specific treaty, or the availability of a procedure, but do not affect the substantive obligations of the state in question under international law. Some of the constructions are open to abuse, i.e. bad faith efforts to distort international law to the detriment of human rights. Because of the complexity of the overall consequences of the various excuses and exceptions, there is need for a holistic approach that seeks to address the combined effect of the various constructions of unilateral exception.