scholarly journals Concept and Position of Peremptory Norms (Jus Cogens) in International Law: A Preliminary Study

2019 ◽  
Vol 5 (2) ◽  
pp. 235
Author(s):  
Irawati Handayani
Keyword(s):  
International Law ◽  
Natural Law ◽  
Order Theory ◽  
Theoretical Background ◽  
Customary International Law ◽  
The Public ◽  
Natural Law Theory ◽  
Jus Cogens ◽  
Peremptory Norms ◽  
The Relationship

Peremptory norms or jus cogens hold a unique position in international law. Unlike customary international law and treaty law, they abide no derivation and bind all states regardless of their willingness to be bound. Some scholars had elaborated fundamental theories to answer the theoretical background of jus cogens. However, they have never reached a satisfactory result. This study aims to elaborate the theoretical background of jus cogens and to observe the relationship between jus cogens, obligation erga omnes, and customary international law. The positivists recognize that jus cogens is an imperative norm within state practice and opinio juris. The positivist theory is not in line with the concept that jus cogens bound to states without their consent since every state has their sovereignty and cannot be bound by any kind of provision without consent. The proponents of the natural law theory stated that peremptory norms are inherited from the tradition of natural law so that it is the highest norm in international law that directly binds countries. On the other hand, the public order theory states that international law recognizes important (imperative) norms, which are hierarchically higher than ordinary norms and customary international law to advance the interests of the international community and to preserve the main values of international law. The three theories are considered insufficient to answer the philosophical basis of jus cogens. In its development, therefore, some new theories have been developed to challenge the basis of jus cogens.

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 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.

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.

Nihil Novum Sub Sole Since the South West Africa Cases? On Ius Standi, the ICJ and Community Interests

2008 ◽  
Vol 10 (2) ◽  
pp. 171-197
Author(s):  
Ignacio de la Rasilla del Moral
Keyword(s):  
International Law ◽  
International Court Of Justice ◽  
International Court ◽  
The Icj ◽  
Republic Of The Congo ◽  
South West Africa ◽  
Jus Cogens ◽  
Peremptory Norms ◽  
First Time ◽  
The Relationship

AbstractThe Democratic Republic of the Congo v Rwanda Judgement of 3rd February 2006 marked the first occasion in which the International Court of Justice expressly pronounced on the jus cogens character of a norm of international law. The Court did also expressly extend, for the first time, the scope of the principle of consensual jurisdiction to cover the relationship between peremptory norms of general international law and the establishment of the Court's jurisdiction. Against this backdrop, this piece revisits some of the main ICJ milestones regarding community interests in light of recent doctrine on the question of ius standi in disputes involving obligations erga omnes and jus cogens norms. It does so in order to examine the main alternatives put forward by the doctrine to circumvent the requirement of state consent for the protection of community interests by jurisdictional means at the international level.

Conceptualising the Relationship between Jus Cogens and Erga Omnes Rules

1997 ◽  
Vol 66 (2-3) ◽  
pp. 211-239 ◽  
Author(s):  
Keyword(s):  
International Law ◽  
Customary International Law ◽  
Jus Cogens ◽  
The Relationship

AbstractFew concepts in international law have attracted as much attention or created as much controversy as jus cogens and erga omnes rules. This article attempts to show that jus cogens rules are rules of customary international law, and then to elucidate the relationship between these customary rules and the concept of erga omnes. This article explains that: in contrast to jus cogens rules, erga omnes rules may arise either as customary rules or through treaties; a jus cogens or erga omnes rule could apply to only a limited number of States; although jus cogens rules are necessarily erga omnes rules, erga omnes rules could exist which were not of a jus cogens character.

11. Normative Interactions: Implementation and Hierarchy of Norms

2020 ◽  
pp. 218-242
Author(s):  
Paola Gaeta ◽  
Jorge E. Viñuales ◽  
Salvatore Zappalà
Keyword(s):  
Twentieth Century ◽  
International Law ◽  
Legal Order ◽  
Legal Rules ◽  
International Legal Order ◽  
Jus Cogens ◽  
Peremptory Norms ◽  
The Relationship ◽  
National Systems ◽  
Domestic Level

This chapter deals with some fundamental realities of international law as a body of legal rules which traditionally requires implementation at domestic level through transposal. In so doing it discusses the traditional theoretical distinction between monism and dualism, as abstract approaches to the relationship between domestic and international legal order. It then tackles the issue of the effects (including direct effects) that international law may have in concrete situations within national systems, as a consequence of, or, in some instances even irrespective of, transposal through national legislation. Thirdly, the chapter discusses the ‘verticalization’ of the international legal order with the affirmation in the second half of the twentieth century of the notion of jus cogens (or peremptory norms) and the effects this has (or might have) within international law and in its relationships with municipal laws.

Derogation and Defeasibility in International Law

2020 ◽  
pp. 108-124
Author(s):  
Andrea Dolcetti ◽  
Giovanni Battista Ratti
Keyword(s):  
Theoretical Model ◽  
Special Reference ◽  
International Law ◽  
Vienna Convention ◽  
The Difference ◽  
Jus Cogens ◽  
Peremptory Norms ◽  
The Relationship ◽  
Do So ◽  
The Way

In this chapter, we discuss the way in which implicit exceptions operate in the context of international law, with special reference to peremptory norms of general international law (i.e. jus cogens). To do so, we develop a theoretical model of exceptions based upon the notion of normative conflict. This model allows us to explain the relationship between derogation and defeasibility of peremptory norms of general international law. The chapter is organized in three parts. We begin by explaining the difference between explicit and implicit exceptions in light of the way in which different types of norms may conflict (section 1). We then consider the existence of explicit and implicit exceptions in international law vis-à-vis the existence of peremptory norms of general international law, which are by definition non-derogable (section 2). Finally, we employ our theoretical model—illustrated in section 1—to analyse Article 53 of the Vienna Convention on the Law of Treaties 1969, arguing that, in relation to jus cogens, the idea of non-derogation should be understood as referring to implicit and not explicit exceptions (section 3).

Final Report on the Obligation to Extradite or Prosecute (Aut Dedere Aut Judicare) (Int’l L. Comm’n)

2015 ◽  
Vol 54 (4) ◽  
pp. 758-779
Author(s):  
Monica P. Moyo
Keyword(s):  
International Law ◽  
General Assembly ◽  
Final Report ◽  
Customary International Law ◽  
United Nations General ◽  
Sixth Session ◽  
United Nations General Assembly ◽  
Jus Cogens ◽  
International Law Commission ◽  
The Relationship

At its sixty-sixth session in 2014, the International Law Commission completed its final report on the obligation to extradite or prosecute and submitted it to the United Nations General Assembly for consideration at its sixty-ninth session.1 The report concluded the Commission’s work on a topic the General Assembly had long considered important in states’ efforts to cooperate in the prevention of impunity for crimes of international concern.2 The Commission addressed the implementation of the obligation; gaps in the existing conventional regime; the priority between the obligation to prosecute and the obligation to extradite, and the scope of the obligation to prosecute; the relationship between the obligation with erga omnes obligations or jus cogens norms; the customary international law status of the obligation; and other matters of relevance from the general framework created in 2009 for the Commission’s consideration of the topic.

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 II Substantive Law, 3 Customary International Law Analysis

2018 ◽  
Author(s):  
Kittichaisaree Kriangsak
Keyword(s):  
International Law ◽  
War Crimes ◽  
Crimes Against Humanity ◽  
Customary International Law ◽  
Key Characteristics ◽  
State Practice ◽  
Jus Cogens ◽  
Substantive Law ◽  
Peremptory Norms

This chapter explains the theory behind, and the key characteristics of, core crimes (such as genocide, crimes against humanity, and war crimes) proscribed by peremptory norms (jus cogens), from which derogation is not permitted, as well as the importance of their prosecution. State practice and its acceptance as law in support of the existence of the customary international law binding on all States to either extradite or prosecute perpetrators of core crimes are systematically elaborated pursuant to the established criteria for the identification of customary international law.

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