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The Power of ProcessThe Value of Due Process in Security Council Sanctions Decision-Making$
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Devika Hovell

Print publication date: 2016

Print ISBN-13: 9780198717676

Published to Oxford Scholarship Online: March 2016

DOI: 10.1093/acprof:oso/9780198717676.001.0001

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A ‘Source-Based’ Approach to Procedural Reform

A ‘Source-Based’ Approach to Procedural Reform

Methodology, Myths, and Misconceptions

(p.31) 3 A ‘Source-Based’ Approach to Procedural Reform
The Power of Process

Devika Hovell

Oxford University Press

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

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