The Compelling Law of Jus Cogens and Exceptions to Peremptory Norms

2020 ◽  
pp. 127-149
Author(s):  
André de Hoogh
Keyword(s):  
Security Council ◽  
General Rule ◽  
Armed Force ◽  
Positive Law ◽  
Peremptory Norm ◽  
Jus Cogens ◽  
General Exceptions ◽  
Peremptory Norms ◽  
Self Defence

In this chapter, the problematic of exceptions to peremptory norms is investigated in view of the defining feature of jus cogens rules as not admitting of derogation. This problematic appears singularly concerned with exceptions to the prohibition of the use of armed force, since that prohibition is regularly claimed to constitute a peremptory norm but admits of exceptions. Different legal constructions have been proposed to explain why exceptions would not amount to derogation. One construction, logically coherent but not (fully) borne out by positive law, is to see exceptions as limiting and lying outside of the substantive scope of a general rule and thus not amounting to derogation. Another construction concerns the claim that the prohibition of the use of armed force is not a jus cogens rule but rather the prohibition of aggression. As such, exceptions such as self-defence, force pursuant to a Security Council authorization, and consent would not amount to derogation, since they would not entail the commission of aggression. This construction would allow for the conclusion that peremptory prohibitions are absolute in character and not subject to exception or justification. Circumstances precluding wrongfulness, as general exceptions, appear to qualify as derogation, since Article 26 of the Articles on the Responsibility of States bars their invocation when conduct would be contrary to a peremptory norm. Finally, a narrow interpretation of the word derogation, as being involved only when states attempt to legalize or justify conduct in relation to already existing, concrete circumstances, could also explain why exceptions to peremptory prohibitions may be considered admissible.

Jus Cogens and the Use of Armed Force

2016 ◽  
Author(s):  
Andre de Hoogh
Keyword(s):  
Armed Force ◽  
The Status ◽  
Peremptory Norm ◽  
Jus Cogens ◽  
Armed Intervention ◽  
Peremptory Norms

This chapter examines the concept of jus cogens in relation to the use of armed force. It first considers whether the prohibition of the use of armed force possesses the status of a peremptory norm before looking into the jus cogens restrictions associated with the peremptory prohibition of the use of armed force or aggression, together with its relationship to accepted or claimed exceptions. The chapter then focuses on the circumstances precluding wrongfulness countermeasures, consent and necessity, as they relate to the peremptory prohibition. Finally, it discusses jus cogens demands for forcible action arising from peremptory norms, such as armed intervention to stop genocide.

Crimes against humanity as a peremptory norm of general international law (jus cogens): There really is no doubt? But so what?

2020 ◽  
Vol 2020 ◽  
pp. 1-14
Author(s):  
Dire Tladi
Keyword(s):  
International Law ◽  
Crimes Against Humanity ◽  
Peremptory Norm ◽  
Jus Cogens ◽  
International Law Commission ◽  
Peremptory Norms ◽  
Law Commission

In 2019 the International Law Commission adopted two texts providing for the peremptory character of the prohibition of crimes against humanity, namely the draft articles on the prevention and punishment of crimes against humanity and the draft conclusions on peremptory norms of general international law. While both of these instruments recognise the peremptory character of the prohibition of crimes against humanity, neither of them address the consequences of the peremptory character of the prohibition of crimes against humanity. This article, on the basis, inter alia, of the internal processes leading to the adoption of these instruments, addresses the consequences of the peremptory character of the prohibition of crimes against humanity.

11. Use of force

2021 ◽  
pp. 149-164
Author(s):  
Ilias Bantekas ◽  
Efthymios Papastavridis
Keyword(s):  
United Nations ◽  
Security Council ◽  
Use Of Force ◽  
United Nations Security Council ◽  
Armed Force ◽  
Collective Security ◽  
Armed Attack ◽  
Customary International Law ◽  
Significant Achievement ◽  
Self Defence

This chapter examines under what circumstances States may use armed force under customary international law and Arts 2(4) and 51 UN Charter. After noting that the use of armed force is generally prohibited and only limited to self-defence, and then only if the target State is under an armed attack, we show that several States have expanded the notion of armed attack. Besides self-defence, the United Nations Security Council may authorize the use of armed force through a process of collective security. Several examples of collective security are offered, as well as the ICJ’s position on what constitutes an armed attack. In recent years, the range of actors capable of undertaking an armed attack has included terrorists. Moreover, the development of the doctrine of the responsibility to protect is a significant achievement.

11. Use of force

2019 ◽  
pp. 144-159
Author(s):  
Ilias Bantekas ◽  
Efthymios Papastavridis
Keyword(s):  
International Law ◽  
Security Council ◽  
Use Of Force ◽  
Armed Force ◽  
Responsibility To Protect ◽  
Collective Security ◽  
Armed Attack ◽  
Customary International Law ◽  
Significant Achievement ◽  
Self Defence

This chapter examines under what circumstances States may use armed force under customary international law and Arts 2(4) and 51 UN Charter. After noting that the use of armed force is generally prohibited and only limited to self-defence, and then only if the target State is under an armed attack, we show that several States have expanded the notion of armed attack. Besides self-defence, the Security Council may authorize the use of armed force through a process of collective security. Several examples of collective security are offered, as well as the ICJ’s position on what constitutes an armed attack. In recent years, the range of actors capable of undertaking an armed attack has included terrorists. Moreover, the development of the doctrine of the responsibility to protect is a significant achievement.

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.

3 The Law of Treaties

2021 ◽  
Author(s):  
Shelton Dinah
Keyword(s):  
International Law ◽  
Special Rapporteur ◽  
The Third ◽  
Positive Law ◽  
The Law ◽  
Definition Of ◽  
Jus Cogens ◽  
International Law Commission ◽  
Peremptory Norms ◽  
Law Commission

This chapter discusses how peremptory norms/jus cogens entered positive law with the Vienna treaties on treaties. Jus cogens was first included in the work of the International Law Commission (ILC) with the Third Report of G.G. Fitzmaurice, Special Rapporteur on the Law of Treaties, under the heading ‘legality of the object’. The first two special rapporteurs on the law of treaties supported the notion of peremptory norms in international law. During ILC work on the law of treaties, however, most of the members joined the ILC’s fourth special rapporteur on treaty law, Sir Humphrey Waldock, who sought to reconcile jus cogens with the doctrine of positivism. They spent little time speculating on the origin of jus cogens. The final ILC draft on the law of treaties was produced by Waldock. The work of the ILC on the law of treaties was based essentially on the notion of barring illegal agreements as a general principle of law. The chapter then provides a definition of jus cogens norms.

scholarly journals Jus Cogens Versus the Chapter VII Powers of the Security Council: With Particular References to Humanitarian Intervention and Terrorism

2020 ◽  
Vol 19 (1) ◽  
pp. 1-52
Author(s):  
Miguel Lemos
Keyword(s):  
Security Council ◽  
Humanitarian Intervention ◽  
World Peace ◽  
Human Race ◽  
The World ◽  
The Face ◽  
Jus Cogens ◽  
Peremptory Norms ◽  
Single World

Abstract The idea of the hierarchical superiority of jus cogens norms in relation to all other norms or actions has gained track. Hence, today, the widely held view is that even decisions of the Security Council cannot contravene imperative norms. This runs counter to the indispensable powers of this organ to do whatever it takes to maintain peace. The argument is that the Security Council can, in the face of a threat or breach of peace, one that, in extremis, has the potential to eradicate the human race, take or authorise necessary action even if this action collides with jus cogens. Such decisions of the Security Council may target every single world entity or individual. Moreover, the world peace body can also legislate and create peremptory norms that are binding upon the whole world. This Article fleshes out the constitutional framework in which the exercise of these powers should be understood and uses as illustrations the old alleged right of humanitarian intervention and the new jus cogens crime of terrorism.

The Responsibility Not to Veto Revisited under the Theory of ‘Consequential Jus Cogens’

2020 ◽  
Vol 12 (3) ◽  
pp. 299-335
Author(s):  
Rana M. Essawy
Keyword(s):  
International Law ◽  
Security Council ◽  
State Responsibility ◽  
Legal Nature ◽  
Un Security Council ◽  
Jus Cogens ◽  
International Law Commission ◽  
Peremptory Norms ◽  
Law Commission

In this article, I argue that contemporary international law imposes an obligation upon the UN Security Council permanent members to refrain from using their veto repeatedly in ways that impede the Council from acting against violations of peremptory norms. This obligation not to veto emanates from the duty to cooperate to end violations of peremptory norms as enshrined in Article 41(1) of the International Law Commission Articles on State Responsibility. For this purpose, I demonstrate that the duty to cooperate itself possesses a peremptory character under the theory of ‘consequential jus cogens’, whereby effects of jus cogens norms are themselves peremptory. In doing so, this article contributes to the ongoing debates concerning the legal nature of the effects of jus cogens norms by showing that the theory of ‘consequential jus cogens’ is an application of the generally accepted maxim accessorium sequitur principale and thus forms part of positive international law.

1 Introduction

2021 ◽  
Author(s):  
Shelton Dinah
Keyword(s):  
International Law ◽  
International Treaty ◽  
Customary International Law ◽  
Positive Law ◽  
The Law ◽  
Jus Cogens ◽  
Peremptory Norms

This introductory chapter provides an overview of the doctrine of peremptory norms (jus cogens). Publicists have long sought to develop a theory that would serve to constrain the claimed unlimited State discretion, in the exercise of sovereignty, to accept or reject an international treaty norm or developing customary international law. The doctrine of peremptory norms (jus cogens) is the primary theory developed in this effort. Notably, however, the norms most often cited as jus cogens have been universally accepted as customary international law or are contained in treaties adhered to by all or nearly all States. Breach of any such norm is a violation of international law; calling the norm jus cogens seems to add little—unless the consequences of violating such norms are enhanced or differ in other ways from breaches of ‘normal’ international law. The only references to peremptory norms in positive law are found in the Vienna conventions on the law of treaties.

Part III The Limitations and Role of the Persistent Objector Rule, 7 Peremptory Norms and Persistent Objection

2016 ◽  
Author(s):  
Green James A
Keyword(s):  
United States ◽  
South Africa ◽  
Death Penalty ◽  
The United States ◽  
The Third ◽  
State Practice ◽  
Peremptory Norm ◽  
Jus Cogens ◽  
Peremptory Norms

This chapter opens the third part of this book. The text here turns to the limitations and role of the persistent objector rule. This chapter begins by examining the commonly advanced contention that the ‘escape hatch’ provided by the persistent objector rule cannot be ‘opened’ in relation to jus cogens norms. A significant majority of scholars have expressed the view that a state cannot exempt itself from a peremptory norm through persistent objection, even when the usual criteria for the rule's operation. The chapter assesses the majority view. Section I sets out what peremptory norms are how they come into being. The chapter then briefly clarifies that the question is not whether a state can gain exemption to a jus cogens norm but whether its pre-existing exempt status ‘decays’, or is superseded by the norm to which it had been a persistent objector becoming peremptory. The chapter then turns to the rationale underpinning the majority claim. It considers the two regularly referenced examples from state practice relating to persistent objection and jus cogens norms: the policy of apartheid in South Africa and Rhodesia and the objections of the United States to the juvenile death penalty. Towards the end, the chapter considers the possibility of persistent objection to the very concept of peremptory norms.

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