A Jus Cogens Human Rights Exception to Immunity: Fact, Fiction or Wishful Thinking?

2021 ◽  
pp. 140-240
Keyword(s):  
Human Rights ◽  
Wishful Thinking ◽  
Jus Cogens

Diplomatic Protection: Taking Human Rights Extraterritorially

2007 ◽  
Vol 44 ◽  
pp. 299-352
Author(s):  
Noura Karazivan
Keyword(s):  
Human Rights ◽  
International Law ◽  
Case Law ◽  
The United Kingdom ◽  
Current State ◽  
Diplomatic Protection ◽  
Human Rights Treaties ◽  
Legitimate Expectations ◽  
Jus Cogens ◽  
To Receive

SummaryThis article argues that states should have a limited obligation — and not only a privilege — to extend diplomatic protection to their nationals when they are facing violations of their most basic human rights abroad. The author addresses the current state of international law regarding diplomatic protection, with a focus on the International Law Commission's failed attempt to impose a duty on states to exercise protection in cases of jus cogens violations. A review of domestic case law, particularly in the United Kingdom, Canada, Germany, and South Africa, shows that while some courts recognize legitimate expectations to receive diplomatic protection, all are reluctant to exercise judicial review of a denial of diplomatic protection. The author nevertheless examines whether adherence to international human rights treaties could entail a positive obligation for states to exercise diplomatic protection in order to protect the human rights of their nationals that are ill-treated abroad.

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.

scholarly journals The legal meaning of the terms "torture", "inhuman treatment or punishment", "degrading treatment or punishment" and their distinction in the decisions of the European commission of human rights and the European court of human rights

2021 ◽  
pp. 26-33
Author(s):  
Khrystyna YAMELSKA
Keyword(s):  
Human Rights ◽  
European Commission ◽  
Criminal Code ◽  
European Convention ◽  
European Court ◽  
Convention Against Torture ◽  
Degrading Treatment ◽  
The Individual ◽  
Jus Cogens ◽  
Legal Meaning

The paper reveals the legal meaning of the terms "torture", "inhuman treatment or punishment", "treatment or punishment that degrades human dignity". A distinction between these concepts is made on the examples of court decisions of European courts, taking into account the individual circumstances of each case. The genesis of the origin of the above concepts is investigated through a prism of the decisions of the European Commission of Human Rights and the European Court of Human Rights. The paper reveals the absolute nature of the "jus cogens" norm of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The author proposes to modernize the Ukrainian criminal legislation on the reception of the position of the European Court of Human Rights on the delimitation of these concepts. In contrast to the European convention regulation of ill-treatment, torture, inhuman or degrading treatment or punishment, the author notes that the Ukrainian legislation regulates this issue quite succinctly. The Article 127 of the Criminal Code of Ukraine provides a definition only of torture, which in essence coincides with the definition of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the position of the European Court of Human Rights. The paper notes that the practice of Ukrainian courts shows that a distinction (similar to that provided by the European Court of Human Rights) is not implemented.

scholarly journals THE POSSIBILITY OF THE RIGHT TO RELIGION EMERGING AS A JUS COGENS NORM (PART 2)

Obiter ◽  
2016 ◽  
Vol 37 (3) ◽  
Author(s):  
David Abrahams ◽  
Tayla Dye
Keyword(s):  
Human Rights ◽  
International Community ◽  
Previous Article ◽  
Republic Of Korea ◽  
Human Rights Violations ◽  
Jus Cogens ◽  
The Right ◽  
Near Future

This article follows a previous article published in Obiter Vol 2 of 2016. In that article the concept of jus cogens and its role in the international community, together with the nature of the right to religion, were discussed. In Part Two, the seriousness of such human rights violations needs to be appreciated by the international community at large. To this end, the Democratic People’s Republic of Korea will serve as a case study, examining the extent of the DPRK’s compliance of its obligations vis-à-vis the right to religion. This should ultimately lead to an understanding as to why the right to religion emerging as a jus cogens norm will not solve the problem of enforcement, and even if it could, due to the uncertainty surrounding the formation of jus cogens it is unlikely that other human rights will be added to the list in the near future.

Human Rights and Jus Cogens

2016 ◽  
pp. 77-122 ◽  
Author(s):  
Evan J. Criddle ◽  
Evan Fox-Decent
Keyword(s):  
Human Rights ◽  
Jus Cogens

Part IV Normative Evolution, Ch.23 Jus Cogens and Obligations Erga Omnes

2013 ◽  
Author(s):  
de Wet Erika
Keyword(s):  
Human Rights ◽  
Legal Order ◽  
Vienna Convention ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
State Practice ◽  
International Human ◽  
Jus Cogens ◽  
Formal Recognition

This article examines the relation between jus cogens and erga omnes obligations in the context of international human rights law. It discusses the content of jus cogens and its relevance within the domestic legal order and explains the relevant provisions of Article 53 of the Vienna Convention on the Law of Treaties of 1969 (VCLT). This article highlights the increasing formal recognition in state practice and doctrine of a hierarchy of norms in international law in the form of jus cogens which indicates increased recognition of core values throughout the international community of states.

II. INTERNATIONAL COURT OF JUSTICE: QUESTIONS RELATING TO THE OBLIGATION TO EXTRADITE OR PROSECUTE (BELGIUM v SENEGAL) JUDGMENT OF 20 JULY 2012

2013 ◽  
Vol 62 (3) ◽  
pp. 753-769 ◽  
Author(s):  
Mads Andenas ◽  
Thomas Weatherall
Keyword(s):  
Human Rights ◽  
International Law ◽  
Universal Jurisdiction ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
Jus Cogens ◽  
Heads Of State ◽  
Peremptory Norms

This case1 marks the first pronouncement by the International Court of Justice (ICJ) on the obligation to extradite or prosecute (aut dedere aut judicare) in international law. It is the second contentious case in which the ICJ has held the defendant country in breach of its obligations under a human rights convention. The ICJ both added to the corpus of norms it has formally recognized as peremptory norms (jus cogens) and also reinforced the principle that former heads of state are subject to universal jurisdiction for grave violations of international law.

State Immunity, Human Rights, and Jus Cogens: A Critique of the Normative Hierarchy Theory

2003 ◽  
Vol 97 (4) ◽  
pp. 741-781 ◽  
Author(s):  
Lee M. Caplan
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
General Circulation ◽  
Gulf War ◽  
Hierarchy Theory ◽  
State Prison ◽  
State Immunity ◽  
The United Kingdom ◽  
Jus Cogens ◽  
Small Room

When Sulaiman Al-Adsani traveled from the United Kingdom to Kuwait to repel Saddam Hussein’s invasion in 1991, he never dreamed he would depart with bruises and burns inflicted by the very government he had sought to defend. According to Al-Adsani, his troubles began when he was accused of releasing sexual videotapes of Sheikh Jaber Al-Sabah Al-Saud Al-Sabah, a relative of the emir of Kuwait, into general circulation. After the first Gulf war, with the aid of government troops, the sheikh exacted his revenge by breaking into Al-Adsani’s house, beating him, and transporting him to a Kuwaiti state prison, where his beatings continued for days. Al-Adsani was subsequently taken at gunpoint in a government car to the palace of the emir’s brother, where his ordeal intensified. According to Al-Adsani, his head was repeatedly submerged in a swimming pool filled with corpses and his body was badly burned when he was forced into a small room where the sheikh set fire to gasoline-soaked mattresses.

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