The international community, jus cogens norms and obligations erga omnes

2009 ◽  
pp. 11-53
Author(s):  
Elena Katselli Proukaki
Keyword(s):  
International Community ◽  
Jus Cogens

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.

scholarly journals Human Rights as a Common Interest of the International Community under the Law of International Responsibility

Lex Russica ◽  
2019 ◽  
Vol 1 (9) ◽  
pp. 63-76
Author(s):  
N. N. Lipkina
Keyword(s):  
Human Rights ◽  
International Law ◽  
Legal Regulation ◽  
International Community ◽  
Common Interest ◽  
Common Interests ◽  
The Common ◽  
International Responsibility ◽  
The Law ◽  
Jus Cogens

Human rights are playing an increasingly important role in the functioning and development of society, and the international legal regulation of the sphere of inter-State cooperation on human rights has acquired a number of specific features that have a significant impact on the development of various institutions of international law, including the law of international responsibility. The purpose of the article is to analyze the features and problems of implementation of the methodology of ensuring the common interest of the international community as a whole that includes protection of human rights under the law of international responsibility. The author considers the category “common interests of the international community as a whole,” and explores its importance in the process of intensification of interstate cooperation in the field of human rights. It is noted that such instruments of ensuring the implementation of the common interests of the international community as a whole as norms of jus cogens and obligations erga omnes predetermine the specifics of the content of the secondary rules of the law of international responsibility. These include rules establishing circumstances precluding the wrongfulness of an act, establishing the consequences of serious breaches of obligations arising from peremptory norms of international law governing the invocation of responsibility by a State other than an injured State. The author emphasizes the significance of the instruments under consideration in the process of establishing the features of the content of individual constructions of the law of international responsibility. Attention is drawn to the fact that implementation of the common interest of the international community as a whole ensuring promotion and protection of human rights in the law of international responsibility entails some difficulties arising due to the lack, inter alia, of consensus concerning methodology for classifying international law as jus cogens norms and the existence of different approaches to understanding the content and structure of human rights per se. It is concluded that, despite the existence of these problems, it is impossible to deny the significant influence of norms of jus cogens and obligations erga omnes on the content of international legal regulation of various areas of international cooperation in the context of the growing trend towards the communitarization of international law and humanization of international relations.

scholarly journals The Super-Normativity of International Criminal Law

AJIL Unbound ◽  
2020 ◽  
Vol 114 ◽  
pp. 82-86
Author(s):  
Paola Gaeta
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Negative Impact ◽  
International Community ◽  
International Criminal Law ◽  
Criminal Sanction ◽  
Community Values ◽  
Normative Force ◽  
Jus Cogens

Nowadays, Prosper Weil's concerns about the emergence of international rules protecting so-called community values, and thus being endowed with special normative force in comparison to “ordinary” international rules, cannot but appear excessive. The existence of such rules as jus cogens or as rules establishing erga omnes obligations is undisputed. And yet Prosper Weil's prediction of their negative impact on the essential functions of international law has not materialized. Weil's concerns acquire instead significance in the field of international criminal law, whose development in the last decades is premised on the need to protect values fundamental to the international community as a whole through the threat of a criminal sanction against individual transgressors.

scholarly journals Unilateral acts and peremptory norms (Jus Cogens) in the international law commission’s work

2019 ◽  
Vol 4 (3) ◽  
pp. 182-196
Author(s):  
Ibrahim Sief Abdel Hameed Menshawy
Keyword(s):  
International Law ◽  
International Community ◽  
Common Interest ◽  
Content Type ◽  
The Common ◽  
Jus Cogens ◽  
International Law Commission ◽  
Peremptory Norms ◽  
Practical Implications ◽  
Law Commission

Purpose This paper aims to explore the evolution of the notion of peremptory norms (Jus Cogens) in international law through the work of the International Law Commission on unilateral acts. Design/methodology/approach The study depended on analyzing the work of the International Law Commission on two topics: Unilateral Acts 2006 and Reservations to treaties 2011 to reveal the relation between jus cogens and unilateral acts. Findings Jus cogens restrict unilateral acts like treaties due to the recognition of the importance and necessity of the concept of Jus cogens in protecting the fundamental interests of the international community. Practical implications States must be compatible with jus cogens when making any reservation on a treaty and also when taking any unilateral act. Originality/value This paper reveals the importance of jus cogens in promoting the values of the international community and the need of such notion to protect the common interest of that community.

scholarly journals Invocation of State Responsibility for Violation of Obligations Owed to the International Community as a Whole

2021 ◽  
Author(s):  
Yu. V. Shchokin
Keyword(s):  
International Law ◽  
International Community ◽  
Legal Responsibility ◽  
State Responsibility ◽  
The Public ◽  
Progressive Development ◽  
Jus Cogens ◽  
The Right ◽  
International Law Commission ◽  
Law Commission

The article discusses the features of the application of paragraph 1 (b) of Art. 48 of the Draft Articles on State Responsibility, developed by the UN International Law Commission and taken into consideration by the UN General Assembly by its resolution 56/83 of December 12, 2001. The norm of this article enshrines the right of any state that is not a victim to call to international legal responsibility state that has committed a breach of an obligation owed to the international community as a whole. This rule contributes to the establishment in modern international law of the ancient Roman theory of actio popularis, according to which any citizen could file a claim in the public interest. The UN International Law Commission is considering paragraph 1 (b) of Art. 48 of the 2001 Draft Articles on State Responsibility as a result of the progressive development of International Law. This is manifested primarily in a new approach to the interpretation of concepts such as “the international community as a whole” and “obligation owed to the international community as a whole”. The article notes that the concept of "the international community as a whole" should no longer be considered as a community of sovereign states, since it already presupposes a more active participation in maintaining international legitimacy of all participants of international relations – subjects of international law. In addition, attention is drawn to the fact that the concept of “obligation owed to the international community as a whole” is a new category proposed by the International Law Commission as a part of the progressive development of the theory of erga omnes and jus cogens norms. The author compares these types of obligations and points out a number of problems that may arise while interpreting this concept in order to apply this rule in practice.

scholarly journals JUS COGENS REVISITED

2016 ◽  
Vol 2627 (34) ◽  
pp. 55-64
Author(s):  
Magdalena Matusiak-Frącczak
Keyword(s):  
Public Law ◽  
International Community ◽  
Vital Interest ◽  
Jus Cogens ◽  
Peremptory Norms ◽  
A Current ◽  
Over Time

Jus cogens raises a vital interest of judicature and doctrine of international public law. We may find different views and opinions on the problem of the existence of peremptory norms, as well as their content. On the basis of the analysisof the practice of international judicial bodies, the article constitutes an attempt to define the prerequisites of a jus cogens norm as well as it aims at determination of a current catalogue of peremptory norms. Moreover, this catalogue evolves over time and in future it might be expected that new jus cogens norms will be recognized by the international community.

Part 4 Intersection of Freedom of Religion or Belief with Other Human Rights, 4.3 Prohibition on Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment

2016 ◽  
Author(s):  
Bielefeldt Heiner, Prof ◽  
Ghanea Nazila, Dr ◽  
Wiener Michael, Dr
Keyword(s):  
Human Rights ◽  
International Community ◽  
Prisoners Of War ◽  
Freedom Of Religion ◽  
Degrading Treatment ◽  
The Government ◽  
Jus Cogens ◽  
The Right

This chapter addresses three aspects of torture in relation to the right to freedom of religion or belief. First, torture and other cruel, inhuman, or degrading treatment or punishment on the grounds of religion or belief. The prohibition of torture is recognized as forming part of jus cogens and entailing an erga omnes obligation of States towards the international community as a whole. Second, torture and other inhuman treatment may also arise from understandings of what particular religious scriptures or traditions allegedly require. They may be carried out by individuals animated by religious hatred, may enjoy the complicity of the Government, or may even be carried out by the authorities themselves. As discussed, human rights can never consider such actions a legitimate exercise of freedom of religion or belief. Finally, the religious sensitivities of detainees or prisoners of war (irrespective of the reasons for their incarceration) may be exploited in order to subject them to torture and other inhuman treatment, in other words utilizing the religion of detainees in order to subject them to tailored torture or inhuman treatment.

scholarly journals The “International Community’S Interests” Element of the State of Necessity Test: Does It Make the Jus Cogens Limitation on Necessity Superfluous?

2019 ◽  
Vol 12 (4) ◽  
pp. 44
Author(s):  
Dmitry V. Krasikov ◽  
Nadezhda N. Lipkina
Keyword(s):  
International Law ◽  
Present Article ◽  
Basic Research ◽  
International Community ◽  
The State ◽  
International Human Rights Law ◽  
Rfbr Grant ◽  
International Obligations ◽  
Jus Cogens ◽  
Peremptory Norms

According to Article 25 par. 1 (b) and Article 26 of the 2001 International Law Commission Articles on Responsibility of States for Internationally Wrongful Acts, the concept of general international law peremptory norms and that of interests of “the international community as a whole” play an important role in shaping the state of necessity as one of the circumstances that preclude wrongfulness of States’ conduct under general international law. The limitation on the necessity defense, placed by the international community’s interest condition contained in Article 25 par. 1 (b) of the ILC Articles, serves as a safeguard for the interests protected by the erga omnes international obligations. The concepts of erga omnes and of general international law peremptory norms differ significantly and while all the norms of the latter type give rise to obligations erga omnes, not every such obligation arises out of peremptory norms. This evidences of an autonomous role of the relevant provision of Article 25 par. 1 (b) but not of the jus cogens limitation under Article 26 in the context of the necessity defense. The present article argues that the jus cogens limitation under Article 26 plays a role largely independent from that of Article 25 par. 1 (b) since it is incorrect to see the latter as an absolute guarantee of obligations erga omnes. The present article is a part of a larger project “Circumstances precluding wrongfulness of conduct: the analysis of functional role and applicability parameters in the framework of International Human Rights Law” supported by the Russian Foundation for Basic Research (RFBR Grant No. 18-011-00660).

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