JUS COGENS, PEREMPTORY NORMS AND INTERNATIONAL OBLIGATIONS: INVOCATION OF STATE RESPONSIBILITY IN THE CONTEXT OF LAW OF TREATIES (original) (raw)
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European Journal of International Law, 2002
The invocation of responsibility for the breach of an international obligation is a matter involving numerous substantive issues. This paper examines only two -the law of diplomatic protection and the process of international adjudication. Both these issues raise particular problems where the obligation in question is a peremptory norm of international law. All states have a legal interest in ensuring compliance with peremptory norms, whether or not they or their nationals are materially injured by any given breach. That this entails a multilateral, as opposed to a bilateral, delictual relationship was recognized by the International Law Commission when it drafted the 2001 Articles on the Responsibility of States for Internationally Wrongful Acts. Although Articles 42 and 48 of these Articles recognize that states not directly injured by the breach of a peremptory obligation are entitled to invoke the responsibility of the delinquent state, these two Articles are not self-contained. In particular, they are expressly subject to Articles 44 and 45. These preclude the invocation of responsibility unless the nationality of claims rule is satisfied (Article 44) or if the injured state has validly waived or acquiesced in the lapse of the claim (Article 45). These conditions restrict, if not negate, the practical utility of Articles 42 and 48.
The Determination and Enforcement of Jus Cogens Norms For Effective Human Rights Protection
IOSR Journal of Humanities and Social Science, 2016
This research paper is focused on the issue of peremptory norms (jus cogens), formulated in the 1969 Vienna Convention on the Law of Treaties, and its applicability in core Human Rights implementation. It thus examines the nature of jus cogens and its formation vis-à-vis Human Rights and advocates for the additional value that jus cogens can bring to core Human Rights implementation. The focal problem that the research addresses is the lack of clarity attached to jus cogens and its subsequent effects on effective core Human Rights implementation. To wonder why jus cogens remains ineffective and to see what can be done, and by whom, to enhance its impact on core Human Rights is the main goal of this study. The authors firmly believe that the jus cogens concept brings a significant contribution to core Human Rights implementation, putting them at the foundation of the international legal order. This effect is substantial to the future core Human Rights development, but, depends also on the future redefinition of jus cogens itself.
Unilateral acts and peremptory norms (Jus Cogens) in the international law commission’s work
Review of Economics and Political Science
Purpose This paper aims to explore the evolution of the notion of peremptory norms (Jus Cogens) in international law through the work of the International Law Commission on unilateral acts. Design/methodology/approach The study depended on analyzing the work of the International Law Commission on two topics: Unilateral Acts 2006 and Reservations to treaties 2011 to reveal the relation between jus cogens and unilateral acts. Findings Jus cogens restrict unilateral acts like treaties due to the recognition of the importance and necessity of the concept of Jus cogens in protecting the fundamental interests of the international community. Practical implications States must be compatible with jus cogens when making any reservation on a treaty and also when taking any unilateral act. Originality/value This paper reveals the importance of jus cogens in promoting the values of the international community and the need of such notion to protect the common interest of that community.
The ways of identification of jus cogens and invocation of international responsibility
The Lawyer Quarterly, 2017
This article deals with identification of jus cogens norms and international responsibility arising under a peremptory norms of general international law. The concept of jus cogens implies some kind of legal “superiority” of these norms over common traditional rules of international law. This concept is based on acceptance and recognition of these norms by international community of states (and of international governmental organisations) with the aim to protect its vital values and international legal order. The legal concept of jus cogens in international law was introduced by the Vienna Convention on the Law of Treaties (VCLT). This Convention, however, does not provide the explanation of the creation or identification of these norms. The idea of jus cogens norms was originally denied by the adherents of legal positivism and supported by the representatives of various natural schools. In author’s view jus cogens norms are to be identified not only in customary international law b...
Peremptory norms of general international law (jus cogens)
<I>Jus Cogens</I>
A. Introduction 142. At its sixty-seventh session (2015), the Commission decided to include the topic "Jus cogens" in its programme of work and appointed Mr. Dire D. Tladi as Special Rapporteur for the topic. 805 The General Assembly subsequently, in its resolution 70/236 of 23 December 2015, took note of the decision of the Commission to include the topic in its programme of work.
International Responsibility - Essays in Law, History and Philosophy
In this chapter, Matthieu Loup compares the content of State responsibility under the European Convention on Human Rights and under the ILC Articles on Responsibility of States for Internationally Wrongful Acts. Pointing at their differences and similarities, he aims at assessing the ways in which the European Court of Human Rights developed its understanding of the content of State responsibility in relation with general international responsibility law. The author argues that the Court limited itself in most instances to specifying the content of the general provisions of the Articles. Real derogations are limited to very specific elements, such as the invocation of domestic law to bar full reparation at the domestic level. This assessment provides useful perspectives for the Court at a time when its authority is challenged, offering a basis in international responsibility law on which to ground progressive developments of the Court’s approach to reparation and prevention of future breaches of the Convention.
International Jus Cogens and State Sovereignty
The prohibition of torture is absolute at an international level, which is confirmed in the International Criminal Tribunal for the former Yugoslavia (ICTY) case of Prosecutor v Anto Furundzija. The obiter identified that any State engaging in or allowing torture to happen is in breach of jus cogens. Therefore this paper examines the nature of torture at the international level, and considers whether the appellation of peremptory norm really prevents acts of torture.
Dir. Dan Sarooshi, Remedies and Responsibility by the Actions of International Organizations, Hague Academy of International Law, Martinus Nijhoff, 2014
Jus Cogens Norms and Intertemporal Law: An Unresolved Conflict at the Heart of International Law
There is a crisis of conscience imbedded within the core of the system of international system. On the one hand, contemporary international law is representative of an evolutionary normative position that has developed over time, resulting in the perception of particular legal occurrences of the past, such as colonialism, as being unjust, and unlawful. Yet, converse to this, it is typically regarded as being equally unjust to project our contemporary morality into the past, emboldening present-day legal norms with a revisionist, retroactive, character. Both of these positions are found embodied within the doctrine of intertemporal law, as created by Judge Huber in the Island of Palmas Arbitration. Adding complexity to this crisis, not all contemporary legal norms are perceived as equal, for, as Crawford noted, a number of legal norms have been elevated to a hierarchically superior normative position. It is not permitted to derogate from these jus cogens norms, Vienna Convention on the Law of Treaties (1969) Article 53. This raises the question as to what an international tribunal should do when it is confronted by a legal matrix that would be in contravention of a contemporary jus cogens norm: should it give retroactive effect to this hierarchical apex holding norm? To answer this, a doctrinal understanding of the intertemporal law doctrine, as given within the Island of Palmas arbitration, is given. It continues to ask the question as to whether doctrine of intertemporal law is a tool fit for dealing with this crisis, and whether an alternative or amended mechanism should be preferred. Into this mix the concept of the jus cogen norm is added, whereupon its significance within the hierarchy of international legal norms is examined, assessing how its existence might influence how the doctrine is utilised. Ultimately, the law of treaties, and how it addresses questions on the retroactivity of law, is used as a template that could be transplanted into general international law, where there is a rebuttable presumption of the non-retroactive effect of law; it being rebuttable in instances where the historical law would be in contravention of a present-day jus cogens norm.