Not so Moderate

Humanitarian Law ◽

Economic Changes ◽

The Status ◽

Jus Cogens ◽

Analytical Tools ◽

This chapter demonstrates how the Colombian Constitutional Court shaped the relationship between municipal and international law by decisively defining the role of international law in Colombia. It resorts to the classical distinction between monism and dualism as analytical tools to study the Colombian Constitutional Court's decisions. The Court's position regarding the interaction between international and domestic law does not fit the 'moderate monism' model it has claimed to have followed since 1998. On the contrary, the answer to the question about the status of general international law in the Colombian constitutional order is at some point between constitutional monism and dualism. To that extent, with the exceptions of jus cogens, international human rights law, international humanitarian law, and border delimitation, the Colombian Constitutional Court follows a “sovereigntist or statist” position, in which there is a general prevalence of domestic legislation over international law. However, the chapter does recognize that the Court has found a useful tool in international law to advance in significant social, political, and economic changes.

Why the Prohibition of Enforced Disappearance Has Attained Jus Cogens Status in International Law

Nordic Journal of International Law ◽

10.1163/15718107-08104006 ◽

2012 ◽

Vol 81 (4) ◽

pp. 537-584 ◽

Cited By ~ 5

Author(s):

Jeremy Sarkin

Keyword(s):

International Law ◽

International Criminal ◽

Legal Framework ◽

Criminal Court ◽

International Criminal Law ◽

Humanitarian Law ◽

International Convention ◽

Historical Developments ◽

Jus Cogens

This article examines the question whether jus cogens includes the prohibition of enforced disappearances, and why this is important. It surveys the meaning, context, development, status and position of jus cogens as well as enforced disappearance in international law, including their relationship to each other. It surveys the status of enforced disappearance in international law in general, as well as in international human rights law, international humanitarian law and international criminal law. The article scans the historical developments of international law, including developments over the last few decades, to indicate that the prohibition against enforced disappearance has attained jus cogens status. The legal framework is examined, including the jurisprudence that has emanated from a variety of sources. Specific treaties that deal with enforced disappearance are reviewed including the Declaration on the Protection of All Persons from Enforced Disappearance, the Inter-American Convention on Forced Disappearance of Persons, the Rome Statute of the International Criminal Court (ICC) and the International Convention for the Protection of All Persons from Enforced Disappearance (ICED). What jus cogens is, what the controversies are that surround it, the different ways that it is understood within different schools of thought, and how these issues impact on whether the prohibition of enforced disappearance has attained jus cogens status are studied. The historical developments around enforced disappearances are examined in some detail to determine what its status is, particularly in relation to state practice, so as to determine whether it is jus cogens.

Governing International Cooperation in Criminal Matters: The Role of the aut dedere aut judicare Principle

International Criminal Law Review ◽

10.1163/15718123-01802005 ◽

2018 ◽

Vol 18 (2) ◽

pp. 244-274 ◽

Cited By ~ 1

Author(s):

Andrea Caligiuri

Keyword(s):

International Law ◽

International Cooperation ◽

Legal Nature ◽

The Status ◽

Criminal Matters ◽

The Relationship ◽

Over Time

The aim of the study is to ascertain how the original Grotian formula ‘aut dedere aut punire’ has been implemented and evolved in international law. The first step is to classify the multilateral conventions that have accepted an aut dedere aut judicare clause. The goal is to bring out peculiarities of the different treaty texts, describing the relationship between the two options dedere and judicare, and the different obligations that arise for the contracting states. We will then examine the content of the two options, to define the legal boundaries within which the contracting states shall or may operate. At this point, we will focus on the legal nature of the aut dedere aut judicare principle that over time may have risen to the status of customary rule. The study will conclude with analysis of reactions to the breach of the aut dedere aut judicare clause by non-complying countries.

The Role of Necessity in International Humanitarian and Human Rights Law

Israel Law Review ◽

10.1017/s0021223713000265 ◽

2013 ◽

Vol 47 (2) ◽

pp. 225-251 ◽

Cited By ~ 4

Author(s):

Lawrence Hill-Cawthorne

Keyword(s):

Human Rights ◽

Law Enforcement ◽

Armed Conflict ◽

International Humanitarian Law ◽

Humanitarian Law ◽

Human Rights Law ◽

Current Article ◽

The nature of armed conflict has changed dramatically in recent decades. In particular, it is increasingly the case that hostilities now occur alongside ‘everyday’ situations. This has led to a pressing need to determine when a ‘conduct of hostilities’ model (governed by international humanitarian law – IHL) applies and when a ‘law enforcement’ model (governed by international human rights law – IHRL) applies. This, in turn, raises the question of whether these two legal regimes are incompatible or whether they might be applied in parallel. It is on this question that the current article focuses, examining it at the level of principle. Whilst most accounts of the principles underlying these two areas of law focus on humanitarian considerations, few have compared the role played by necessity in each. This article seeks to address this omission. It demonstrates that considerations of necessity play a prominent role in both IHL and IHRL, albeit with differing consequences. It then applies this necessity-based analysis to suggest a principled basis for rationalising the relationship between IHL and IHRL, demonstrating how this approach would operate in practice. It is shown that, by emphasising the role of necessity in IHL and IHRL, an approach can be adopted that reconciles the two in a manner that is sympathetic to their object and purpose.

Part III The Limitations and Role of the Persistent Objector Rule, 8 Maintaining Exemption: ‘Fundamental’ Norms and Extra-Legal Factors

10.1093/law/9780198704218.003.0009 ◽

2016 ◽

Author(s):

Green James A

Keyword(s):

International Law ◽

Actual State ◽

Human Rights Law ◽

International Human Rights ◽

Customary International Law ◽

State Practice ◽

The Face ◽

Jus Cogens

A notable minority critique of the persistent objector rule is that the rule is not supported by actual state practice. The first part of this book dismissed these critiques. This chapter explores the ‘softer’ versions of the persistent objector rule. The first is that persistent objection is not permissible in relation to particularly ‘fundamental’ customary international law norms, even those that have not attained jus cogens status. This claim has most commonly been made with regard to norms of customary international human rights law. The chapter then turns to a related claim made by critics of the persistent objector rule, which is that it is commonly unavailing, not just in the face of especially ‘fundamental’ norms, but in general.

INTERNATIONAL LAW IN THE TURKISH LEGAL ORDER: TRANSNATIONAL JUDICIAL DIALOGUE AND THE TURKISH CONSTITUTIONAL COURT

The Italian Yearbook of International Law Online ◽

10.1163/22116133-90000157a ◽

2017 ◽

Vol 26 (1) ◽

pp. 41-62

Author(s):

Ikboljon Qoraboyev ◽

Emre Turkut

Keyword(s):

International Law ◽

Legal Order ◽

Constitutional Court ◽

Legal Analysis ◽

Political Forces ◽

Turkish Literature ◽

Contemporary Writing ◽

Domestic Power ◽

Much has been written on the increasing significance of domestic courts in the international realm. However, the role of the Turkish constitutional judges in determining and orienting the relationship between international law and Turkish domestic law has rarely been subject to legal analysis. Literature on the involvement of the Turkish judges in transnational judicial dialogue is also almost non-existent. As far as the existing Turkish literature is concerned, much of the contemporary writing on the subject tends to focus on the hierarchical position of international agreements in the Turkish legal order. This paper intends to fill an important gap in the scholarship by providing an analysis of the decisions of the Turkish Constitutional Court (TCC) and by illuminating the TCC’s role as implementers or non-implementers of international law, and the scope of their participation in transnational judicial dialogue. Relevant sub-questions concern the extent to which the stance of the TCC’s judges may or may not alleviate concerns of the international community on the rule of law in Turkey, and whether their engagement in international law is substantial enough to limit and moderate the excesses of different political forces, including those in power, engaged in the domestic power struggle.

Part One Historical and Legal Foundations, III On the Application of International Law to Palestinian Refugees

Palestinian Refugees in International Law ◽

10.1093/law/9780198784043.003.0004 ◽

2020 ◽

Author(s):

Albanese Francesca P ◽

Takkenberg Lex

Keyword(s):

Human Rights ◽

International Law ◽

International Humanitarian Law ◽

Humanitarian Law ◽

Palestinian Refugees ◽

The Status ◽

Legal Foundations ◽

Palestinian Refugee ◽

International Refugee Law

This chapter explores the legal foundations of the Palestinian refugee question, reviewing their status under various branches of international law – as refugees, stateless persons, civilians protected under international humanitarian law, internally displaced persons, or, simply, as human beings entitled to human rights. International law as it stood in the early twentieth century, is relevant to the Palestinian refugee question. Since 1948, the evolution of its various branches – notably international humanitarian law (IHL), international human rights law (IHRL), international refugee law (IRL), and the frameworks to address statelessness and prevent internal displacement – have consolidated and evolved in ways that should benefit Palestinian refugees. IRL determines the foundation of the legal status of Palestinians as refugees and the standards of treatment specific to that status. IHRL, as the body of international law with the widest application, has the potential to improve significantly the status and conditions of Palestinian refugees. Meanwhile, IHL remains an important, composite protection framework whenever humanity fails. Thus, the failure to bring a just resolution to the plight of Palestinian refugees is ultimately attributable to the protracted lack of political will, rather than inadequacy of the legal framework and the persistence to treat their plight in political terms, as an outcome of war, a humanitarian crisis, and an issue for negotiation.

THE ROLE OF DECISIONS OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION IN THE DEVELOPMENT OF LEGISLATION ON MASS MEDIA

Law Нerald of Dagestan State University ◽

10.21779/2224-0241-2020-34-6-59-62 ◽

2020 ◽

Vol 36 (4) ◽

pp. 59-62

Author(s):

D. Sh. Pirbudagova ◽

◽

A.M. Omarova ◽

Keyword(s):

Mass Media ◽

Russian Federation ◽

Legal Status ◽

Legal Regulation ◽

Constitutional Court ◽

The Status ◽

The Russian Federation ◽

Media Society ◽

The article examines the legal positions of the constitutional control bodies regarding the legislative regulation of the status of mass media. The authors note that the Constitutional Court of the Russian Federation has made decisions on the issues of financing, ownership and legal regulation of mass media, the relationship between the mass media, society and the state, the content of the constitutional prohibition of censorship and its correlation with restrictions on freedom of mass media, etc. Conclusions are drawn about the conceptual nature of the decisions of the constitutional Court of the Russian Federation aimed at clarifying the constitutional and legal status of mass media and contributing to filling legal gaps in this area

6. Law, Politics, and the Use of Force

Strategy in the Contemporary World ◽

10.1093/hepl/9780198708919.003.0007 ◽

2015 ◽

Author(s):

Justin Morris

Keyword(s):

International Law ◽

Use Of Force ◽

Jus In Bello ◽

Jus Ad Bellum ◽

Legal Constraint ◽

Self Interest ◽

The Status ◽

State Behaviour ◽

Jus Cogens

This chapter explores the role of international law in international politics, with particular emphasis on the effectiveness of legal constraint of the use of force by states. It first considers the effect of international law on state behaviour, focusing on the so-called ‘perception–reality gap’, before discussing three reasons why states obey the law: coercion, self-interest, and legitimacy. It then examines the concepts of jus ad bellum and jus in bello; the former governs and seeks to limit resort to armed force in the conduct of international relations, while the latter governs and seeks to moderate the actual conduct of hostilities. Jus in bello is further subdivided into Geneva law and Hague law, both of which generally have the status of jus cogens.

To Serve the Enemy

10.1093/oso/9780198788898.001.0001 ◽

2019 ◽

Author(s):

Shane Darcy

Keyword(s):

International Law ◽

Armed Conflict ◽

Potential Role ◽

Armed Conflicts ◽

International Humanitarian Law ◽

Humanitarian Law ◽

Human Rights Law ◽

Rules And Principles

The use of informers and other collaborators by parties to an armed conflict is a common yet often concealed practice in times of war. Despite the prevalence of such activity, and the serious and at times fatal consequences that befall those who collaborate with an enemy, international law applicable in times of armed conflict does not squarely address the phenomenon. The recruitment, use, and treatment of informers and other collaborators is addressed only partially and at times indirectly by international humanitarian law. While international law recognises the widespread and enduring phenomenon of individuals cooperating with an opposing side during an armed conflict, it treats it with some ambivalence. The lawfulness of resort to the practice is generally accepted in principle, yet international law seeks to place certain limits, including restrictions on the methods employed in the recruitment, use, and treatment of informers and other collaborators during armed conflict. This book examines the development and application of the relevant rules and principles of the laws of armed conflict in relation to collaboration. The author focuses primarily on international humanitarian law as applicable to various forms of collaboration but also provides an assessment of the potential role of international human rights law. The book examines the law and practice concerning the phenomenon of collaboration during both international and non-international armed conflicts.

Implementing international law: An avenue for preventing disappearances, resolving cases of missing persons and addressing the needs of their families

International Review of the Red Cross ◽

10.1017/s1816383118000528 ◽

2017 ◽

Vol 99 (905) ◽

pp. 547-567 ◽

Cited By ~ 1

Author(s):

Ximena Londoño ◽

Alexandra Ortiz Signoret

Keyword(s):

International Law ◽

National Level ◽

Humanitarian Law ◽

Policy Reforms ◽

Missing Persons ◽

National Implementation ◽

The Right To Know ◽

The Right

AbstractInternational humanitarian law and international human rights law seek to prevent people from going missing, and to clarify the fate and whereabouts of those who do go missing while upholding the right to know of their relatives. When implementing international law at the domestic level, national authorities should plan carefully before engaging in any policy or legal reform that will address the issue of missing persons and the response to the needs of their families. This article seeks to present a general overview of the provisions of international law that are relevant to understanding the role of national implementation vis-à-vis the clarification of the fate and whereabouts of missing persons and the response to the needs of their relatives. It also presents the role that the ICRC has played in this regard and highlights three challenges that may arise at the national level when working on legal and policy reforms.