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Precluding the Wrongfulness of Derogations of International Human Rights Instruments

In: Asia-Pacific Journal on Human Rights and the Law
Authors:
Ashika Jain Student, West Bengal National University of Juridical Sciences, Kolkata, India

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Rohit Gupta Student, West Bengal National University of Juridical Sciences, Kolkata, India

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Abstract

Primary and secondary norms represent complementary systems of governance, one specifying the substantive obligations of states and the other imposing consequences upon deviation. Treaties which contain both primary and secondary norms generally operate as self-contained regimes as they oust the application of secondary norms under customary international law, such as those that might be invoked to justify deviations. Conflict, however, arises when the treaty norms seem to overlap with their customary counterpart, while remaining technically disjunct in their form. Derogation and limitation clauses in several international human rights instruments provide conditions in which a violation would be justified. On the other hand, customary international law also prescribes circumstances in which violations cannot be considered wrongful. This article addresses whether the existence of the former in treaties precludes the invocation of the latter. It also highlights the difficulty which arises in the interpretation of those instruments in which such derogation and limitation clauses are absent.

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