Unilateral Exceptions to International Law: Systematic legal analysis and critique of doctrines to deny or reduce the applicability of Human Rights norms in the fight against terrorism

Abstract

It is well known that many governments have resorted to a wide range of constructions to justify, under international law, their unilateral exceptions to human rights in the name of countering terrorism. This paper seeks to take stock of a 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. Many constructions have a valid legal basis and a proper scope of application. However, they also have limitations and often relate to a specific treaty, or the availability of a procedure, but do not alter the substantive obligations of the state in question under international law. In many cases, this results from the overlap of treaty law and customary norms of 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 the combined effect of the various excuses and exceptions are complex, there is a need for a holistic approach which seeks to address the combined effect of various constructions of unilateral exceptions.