Chapter

Derogations Under Human Rights Treaties<sup>*</sup>

Rosalyn Higgins Dbe Qc

in Themes and Theories

Published in print August 2009 | ISBN: 9780198262350
Published online March 2012 | e-ISBN: 9780191682322 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780198262350.003.0031
Derogations Under Human Rights Treaties*

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This chapter discusses derogations from human rights obligations. It is limited to an examination of derogations from rights enunciated in international treaties. Both individuals and states have rights and obligations. Recent years have witnessed a considerable drive towards improving the position of the individual, accompanied by a widespread feeling that the traditional views on the place of the individual in international law, and the traditional rules on nationality of claims, tipped the scales exceedingly in favour of the state. In attempting to redress the balance, it is necessary, however, for improved human rights to be matched by accommodations in favour of the reasonable needs of the state to perform its public duties for the common good. A variety of techniques are available for effecting such accommodations, namely, the possibility of the denunciation of a treaty, reservations as to its terms, articles stating that individual rights can only be exercised in conformity with the rights of others, clauses in the text interpreting the scope of rights guaranteed, ‘clawback’ clauses and derogations clauses stricto sensu.

Keywords: derogations; human rights; international treaties; international law; accommodations; denunciation; reservations; clawback clauses

Chapter.  22212 words. 

Subjects: Public International Law

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