Seven Ways of Escaping a Rule: Of Exceptions and Their Avatars in International Law

Abstract

The purpose of this paper is (1) to identify seven legal techniques through which certain situations that could otherwise fall within the scope of a rule or a set of rules are excluded from it (scope clauses, carve-outs, flexibilities, derogations, exceptions stricto sensu, excuses, and circumstances precluding wrongfulness) and (2) to clarify the implications (technical and practical) of using such techniques and the terminology that comes with them. Indeed, using the term ‘exception’ rather than other terms such as ‘carve-out’ or ‘exemption’ may have significant legal implications as regards matters such as (i) the burden of proof, (ii) the interpretative approach, (iii) the degree of deference accorded to a respondent under a provision, or (iv) the interplay with certain referral clauses.

Keywords: scope provisions, carve-outs, exemptions, flexibilities, derogations, exceptions, excuses, circumstances precluding wrongfulness