Chapter

A ‘Source-Based’ Approach to Procedural Reform

Devika Hovell

in The Power of Process

Published in print January 2016 | ISBN: 9780198717676
Published online March 2016 | e-ISBN: 9780191787157 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780198717676.003.0003

Series: Oxford Monographs in International Law

A ‘Source-Based’ Approach to Procedural Reform

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Chapter 3 examines the methodology underlying the development of due process principles in the reform debate so far. The two main approaches have been a ‘top-down’ approach, under which applicable due process standards have been derived from international treaties and customary international human rights law, and a ‘bottom-up’ approach, under which general principles of due process have been derived from domestic legal regimes. The problem is that both approaches focus on deriving universal principles from standards developed for domestic governmental contexts. As a consequence, a number of myths and misconceptions have distorted the international debate about due process. This chapter examines certain myths and misconceptions, including the failure to appreciate the contextual nature of procedural fairness and misconceptions about the relationship between due process and the civil/criminal divide, ‘judicial’ power, and emergency decision-making.

Keywords: international law methodology; customary international law; general principles; context; due process; civil/criminal divide; judicial power; emergency

Chapter.  11235 words. 

Subjects: Public International Law ; Constitutional and Administrative Law

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