9. Integrity of the person

2017 ◽  
Author(s):  
Nigel S Rodley
Keyword(s):  
International Law ◽  
Death Penalty ◽  
Right To Life ◽  
Security Forces ◽  
Customary International Law ◽  
Law Enforcement Officials ◽  
Degrading Treatment ◽  
Jus Cogens ◽  
The Right ◽  
Peremptory Norms

This chapter examines rights at the core of the concept of integrity of the person. Specifically, it considers the right to be free from torture and cruel, inhuman, or degrading treatment or punishment and the right to life. The chapter addresses complex definitional issues of what constitutes torture, and addresses other ill-treatment, mainly in the light of treaty definitions and case law of courts and other bodies charged with applying relevant treaties. The same approach is taken with respect to the right to life, where the central issues of the limits international law places on the death penalty and on the use of force by security forces and law enforcement officials are considered. Both rights are considered to be rules of customary international law and probably peremptory norms of international law (jus cogens).

Grotian Moments and Peremptory Norms of General International Law: Friendly Facilitators or Fatal Foes?

Grotiana ◽  
2021 ◽  
Vol 42 (2) ◽  
pp. 335-353
Author(s):  
Dire Tladi
Keyword(s):  
International Law ◽  
The Other ◽  
High Threshold ◽  
Other Hand ◽  
State Practice ◽  
The One ◽  
Jus Cogens ◽  
The Right ◽  
Peremptory Norms ◽  
Law Making

Abstract The concept of a Grotian moment remains rather obscure in international law. On the one hand, it can refer simply to an empirical fact which galvanises the ordinary law-making processes, whether treaty-making or State practice, resulting in major shifts in international law. On the other hand, a Grotian moment might be seen as an event so significant that it results in an extraordinary shift in international law without full adherence to the processes for law-making. The former understanding has little legal significance, while the latter, which would be legally significant, would be controversial and without legal basis. Against this background the article discusses the intersections between peremptory norms and Grotian Moments. It does this by looking at the intersection between the two concepts as well as the intersection between Grotian Moments, on the one hand and, on the other hand, particular jus cogens norms. With respect to the former, for example, the article will consider whether the high threshold of peremptory status facilitates and hinders Grotian moments. With respect to the latter, the article will consider particular norms that have been said to have shifted on account of the Grotian moments, namely the right to use of force in self-defence as well humanitarian intervention.

The ICCPR as a ‘Living Instrument’: The Death Penalty as Cruel, Inhuman and Degrading Treatment

2004 ◽  
Vol 68 (6) ◽  
pp. 507-519 ◽  
Author(s):  
Amrita Mukherjee
Keyword(s):  
Human Rights ◽  
Death Penalty ◽  
Right To Life ◽  
Degrading Treatment ◽  
The Right

This article examines the recent views of the UN Human Rights Committee on the issues related to the death penalty. Obligations under Articles 6 (the right to life) and 7 (the right not to be subjected to torture or other, cruel, inhuman and degrading treatment or punishment) are correlated. Despite widely divergent opinions within the Committee on the issue, this human rights body is moving towards strengthening the obligations of abolitionist states and, in so doing, restricting the availability of the sanction for retentionist states. This is consistent with the object and purposes approach and the nature of the ICCPR as a living instrument.

scholarly journals The Role of Customary International Law in Regulating the Activities of Armed Groups in the Field of Human Rights

2021 ◽  
Vol 16 (5) ◽  
pp. 195-204
Author(s):  
R. I. Sharipov
Keyword(s):  
Human Rights ◽  
International Law ◽  
Armed Conflicts ◽  
International Human Rights Law ◽  
Armed Groups ◽  
Customary International Law ◽  
Protection Of Human Rights ◽  
Jus Cogens ◽  
Relationship Of ◽  
Peremptory Norms

Over the past decades, there has been a significant increase in the number of armed groups involved in armed conflicts around the world, as well as in their impact on the rights and freedoms of the population under their control. Facing various situations of systematic violations of human rights by non-state actors, experts in the field of international human rights law began to consider the theoretical justification for the mandatory nature of the provisions on the observance and protection of human rights for armed groups. In this regard, a number of scholars have turned to the theory of customary international law, the acceptability of which is being investigated by the author of this paper. The author examines the provisions underlying this theory and the persuasiveness of the argumentation used by its supporters. Based on an analysis of the nature of customary international law, its structural elements, their interpretation by the UN International Court of Justice in its decisions and the relationship of customary international law with peremptory norms of jus cogens, the author concludes that the theory under consideration is currently unable to explain the existence of obligations of armed groups in the field of human rights.

13. The right to life

2017 ◽  
Author(s):  
Rhona K. M. Smith
Keyword(s):  
Human Rights ◽  
National Security ◽  
Death Penalty ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Right To Life ◽  
International Human Rights ◽  
Security Forces ◽  
International Human ◽  
The Right

This chapter examines African, American, European, and international jurisprudence on the right to life. It discusses the positive obligation incumbent on States to protect life; the permissible deprivation of life (the death penalty, death caused by national security forces, and death during armed conflict); and the issue of genocide. The chapter concludes that the right to life is of paramount importance in international human rights law. International law covers not only the straightforward human rights aspects, but also extends to the prevention and punishment of the crime of genocide.

Part V Jus Cogens beyond the Vienna Convention, 23 The Metamorphosis of Jus Cogens: From an Institution of Treaty Law to the Bedrock of the International Legal Order?

2011 ◽  
Author(s):  
Zemanek Karl
Keyword(s):  
International Law ◽  
Recent Trend ◽  
Vienna Convention ◽  
Customary International Law ◽  
National Courts ◽  
International Legal Order ◽  
The Will ◽  
Ordre Public ◽  
Jus Cogens ◽  
Peremptory Norms

When the Vienna Convention on the Law of Treaties confirmed the existence of peremptory norms of international law (jus cogens) they were conceived, like Roman jus publicum, as absolute law that could not be altered by the will of individual States. Scholars then transformed the concept into the manifestation of public policy (ordre public). They also argued for widening the scope of its application to unilateral legal acts and customary international law. A recent trend in academic theory assigns jus cogens an essential role in the constitutionalization of international law, postulating it either as hierarchically higher order or as embodying the constitutional principles. In view of the rashness of scholars in proclaiming the peremptory character of norms and also of the inexpertness of the European and national courts in applying supposedly peremptory international norms in their decisions, it seems better to keep jus cogens at its original task.

Frontiers of International Law, Part One: The Chechen People, Continued

1997 ◽  
Vol 10 (1) ◽  
pp. 16-20
Author(s):  
René Lefeber ◽  
David Raič
Keyword(s):  
Human Rights ◽  
International Law ◽  
Self Determination ◽  
Military Force ◽  
Right To Life ◽  
Customary International Law ◽  
Parent State ◽  
The People ◽  
The Law ◽  
The Right

We agree with André de Hoogh that the Chechens did not possess a right to external self-determination prior to the massive indiscriminate use oi military force by Russia in December 1994. At no point have we argued or suggested otherwise. Hence, up to December 1994, the Chechen claim did indeed not meet the conditions set by paragraph seven of the Friendly Relations Declaration. However, the Friendly Relations Declaration needs to be interpreted in view of usus and opinio iuris. In other words, one has to analyse how this paragraph has developed in customary international law. According to our analysis of the law of self-determination, the emergence of a right to external self-determination depends on two cumulative conditions, viz. 1) the serious and persistent violation of the right to internal self-determination and 2) the exhaustion of all total and international peaceful remedies by the people concerned to effectuate its right to internal self-determination. These conditions must be deemed fulfilled if the parent state seriously and massively violates the fundamental human rights and freedoms – in particular by an arbitrary violation of the right to life – of the persons belonging to the people concerned.

scholarly journals HAK ASASI MANUSIA SEBAGAI JUS COGENS DAN KAITANNYA DENGAN HAK ATAS PENDIDIKAN

Yuridika ◽  
2017 ◽  
Vol 32 (2) ◽  
pp. 352
Author(s):  
Virgayani Fattah
Keyword(s):  
Human Rights ◽  
International Law ◽  
Right To Education ◽  
Social Community ◽  
National Education ◽  
Peremptory Norm ◽  
Jus Cogens ◽  
The Right ◽  
Peremptory Norms

Jus cogens as a norm of general international law accepted and recognized by the community as a whole interasional with the main characteristics are non-derogable nature. The right to education is a fundamental human rights, so that its presence can not be reduced under any circumstances based on the benefits and importance of education for children. The national education policy is not fully aligned with the international human rights instruments led to the development of the education sector is not entirely based on human rights. Government is obliged to fulfill the right to education, especially with regard to the budget for building and repairing school buildings and improve the quality of education in Indonesia. The importance of the right to education as the main vehicle for elevating and empowering children from poverty, as a means to actively participate in the construction and total social community and as a powerful path towards human civilization itself. So it can be understood that a peremptory norm, also called jus cogens is a basic principle of international law that is considered to have been accepted in the international community of the country as a whole. Unlike general treaty law that traditionally requires treaties and allows for changes in obligations between countries through treaties, peremptory norms can not be violated by any country.

The Authority of Peremptory Norms in International Law: State Consent or Natural Law?

2009 ◽  
Vol 78 (2) ◽  
pp. 133-175 ◽  
Author(s):  
Dan Dubois
Keyword(s):  
International Law ◽  
Natural Law ◽  
Customary International Law ◽  
Unique Position ◽  
Treaty Law ◽  
State Consent ◽  
Jus Cogens ◽  
Peremptory Norms ◽  
Conceptual Difficulties

AbstractPeremptory norms, or norms jus cogens, hold a unique position in the hierarchy of international law. Unlike customary international law and treaty law, peremptory norms abide no derivation and are binding on all states regardless of their willingness to be bound by them. As a result, the authority of peremptory norms, it is argued, cannot be adequately explained by current positivist and voluntarist explanations of their authority. This article discusses the inadequacies of the positivist explanation and puts forward an alternative natural law explanation for the authority of peremptory norms which avoids the conceptual difficulties found in the positivist account. Finally, in the concluding section I address a number of potential realist and post-modernist counter arguments to my position and dismiss them as unconvincing.

scholarly journals The One-State as a Demand of International Law: Jus Cogens, Challenging Apartheid and the Legal Validity of Israel

2013 ◽  
Vol 12 (2) ◽  
pp. 181-205
Author(s):  
Oren Ben-Dor
Keyword(s):  
International Law ◽  
International Crime ◽  
Self Determination ◽  
State Recognition ◽  
Democratic State ◽  
The One ◽  
Jus Cogens ◽  
The Right ◽  
Peremptory Norms ◽  
State Of Israel

This article provides the initial contours of an argument that uses International Law to challenge the validity of Israeli apartheid. It challenges the conventional discourse of legal debates on Israel's actions and borders and seeks to link the illegalities of these actions to the validity of an inbuilt Israeli apartheid. The argument also connects the deontological doctrine of peremptory norms of International Law (jus cogens), the right of self-determination and the International Crime of Apartheid to the doctrine of state recognition. It applies these to the State of Israel and the vision of a single democratic state in historic Palestine.

Doing Away with Capital Punishment in Russia

2018 ◽  
Author(s):  
Bakhtiyar Tuzmukhamedov
Keyword(s):  
International Law ◽  
Death Penalty ◽  
Capital Punishment ◽  
Constitutional Court ◽  
Common Denominator ◽  
Federal Law ◽  
Right To Life ◽  
Russian Constitution ◽  
The Right ◽  
Relationship Of

The Russian Constitution protects the right to life. At the same time, it states that “capital punishment until its complete abolition may be established by federal law as an exclusive form of punishment for particularly grave crimes against life,” but only on the condition that an accused in a capital case shall be entitled to a trial by a court comprising professional judges and a lay jury (Article 20 (2)). This chapter will describe the uneasy relationship of Russia with the death penalty, both domestically and internationally. It will speculate whether the Constitutional Court applied international law as a common denominator to interpret the Constitution, or instead turned to international sources as an auxiliary means to support its own understanding of constitutional goals.

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