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).

scholarly journals Is All Fair in Distancing Human Rights from Customary International Law Rule on State of Necessity?

2020 ◽  
Vol 11 (3) ◽  
pp. 53
Author(s):  
Dmitry V. Krasikov ◽  
Nadezhda N. Lipkina
Keyword(s):  
Human Rights ◽  
International Law ◽  
Basic Research ◽  
The State ◽  
Theory And Practice ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Rfbr Grant ◽  
International Human

The international human rights law theory and practice traditionally follow the path of distancing human rights from the state of necessity under general international law. The existence of derogation clauses contained in major human rights treaties excludes the possibility for States parties to invoke the customary rule on necessity to excuse non-compliance with the obligations under such treaties (the narrow distancing approach). Presently, a broader distancing approach, covering human rights obligations outside the treaties’ derogation regimes, is evolving employing certain alternative grounds for departure from human rights obligations. The article argues that the way the broader distancing approach evolves raises doubts as to its conformity with its intrinsic rationale. To address this concern a due account should be taken of the pro homine reasoning for distancing human rights from the state of necessity. The present paper 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).

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 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.

Statehood and the State-Like in International Law

2019 ◽  
Author(s):  
Rowan Nicholson
Keyword(s):  
Hong Kong ◽  
International Law ◽  
The State ◽  
Alternative Methods ◽  
Important Conclusion ◽  
Territorial Integrity ◽  
The Past ◽  
Imperial China ◽  
Peremptory Norms ◽  
Legal Sense

If the term were given its literal meaning, international law would be law between ‘nations’. It is often described instead as being primarily between states. But this conceals the diversity of the nations or state-like entities that have personality in international law or that have had it historically. This book reconceptualizes statehood by positioning it within that wider family of state-like entities. An important conclusion of the book is that states themselves have diverse legal underpinnings. Practice in cases such as Somalia and broader principles indicate that international law provides not one but two alternative methods of qualifying as a state: subject to exceptions connected with territorial integrity and peremptory norms, an entity can be a state either on the ground that it meets criteria of effectiveness or on the ground that it is recognized by all other states. Another conclusion is that states, in the strict legal sense in which the word is used today, have never been the only state-like entities with personality in international law. Others from the past and present include imperial China in the period when it was unreceptive to Western norms; pre-colonial African chiefdoms; ‘states-in-context’, an example of which may be Palestine, which have the attributes of statehood relative to states that recognize them; and entities such as Hong Kong.

scholarly journals SECURING HUMAN RIGHTS IN THE FACE OF INTERNATIONAL INTEGRATION

2011 ◽  
Vol 60 (1) ◽  
pp. 125-165 ◽  
Author(s):  
Israel de Jesús Butler
Keyword(s):  
Human Rights ◽  
International Law ◽  
Regional Level ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Governmental Organizations ◽  
The Face ◽  
International Obligations ◽  
Increasing Risk

AbstractThe continuous transfer of authority from the national sphere to inter-governmental organizations gives rise to an increasing risk that States may be mandated by their obligations under these organizations to take measures that are inconsistent with their obligations under International Human Rights Law. Drawing on the approaches of various international, regional and national jurisdictions, this article explores two possible models for restructuring International Law that could ensure that human rights obligations remain effective. The ‘international constitutional’ approach would ensure that human rights are enshrined within the ‘constitutional’ instruments of IGOs, preventing incompatible rules from emerging. The ‘parochial’ approach would ensure that human rights as protected at the national or regional level would take precedence over conflicting international obligations.

Grotian Moments and Peremptory Norms of General International Law: Friendly Facilitators or Fatal Foes?

Grotiana ◽  
2021 ◽  
Vol 42 (2) ◽  
pp. 335-353
Author(s):  
Dire Tladi
Keyword(s):  
International Law ◽  
The Other ◽  
High Threshold ◽  
Other Hand ◽  
State Practice ◽  
The One ◽  
Jus Cogens ◽  
The Right ◽  
Peremptory Norms ◽  
Law Making

Abstract The concept of a Grotian moment remains rather obscure in international law. On the one hand, it can refer simply to an empirical fact which galvanises the ordinary law-making processes, whether treaty-making or State practice, resulting in major shifts in international law. On the other hand, a Grotian moment might be seen as an event so significant that it results in an extraordinary shift in international law without full adherence to the processes for law-making. The former understanding has little legal significance, while the latter, which would be legally significant, would be controversial and without legal basis. Against this background the article discusses the intersections between peremptory norms and Grotian Moments. It does this by looking at the intersection between the two concepts as well as the intersection between Grotian Moments, on the one hand and, on the other hand, particular jus cogens norms. With respect to the former, for example, the article will consider whether the high threshold of peremptory status facilitates and hinders Grotian moments. With respect to the latter, the article will consider particular norms that have been said to have shifted on account of the Grotian moments, namely the right to use of force in self-defence as well humanitarian intervention.

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

2012 ◽  
Vol 81 (4) ◽  
pp. 537-584 ◽  
Author(s):  
Jeremy Sarkin
Keyword(s):  
International Law ◽  
International Criminal ◽  
Legal Framework ◽  
Criminal Court ◽  
International Criminal Law ◽  
International Human Rights 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.

Fundamental Norms in Contemporary International Law

1988 ◽  
Vol 25 ◽  
pp. 115-149 ◽  
Author(s):  
R. ST. J. MacDonald
Keyword(s):  
International Law ◽  
Present Article ◽  
Droit International ◽  
Jus Cogens ◽  
Article Analyse

SommaireLe présent article analyse la question de la hiérarchie en droit international contemporain et pose la question de l'existence même d'une telle hiérarchie, tout en examinant les différents niveaux hiérarchiques possibles. Une énumération des normes supérieures plus importantes est également effectuée et est suivie de commentaires sur leur interaction. Une attention toute particulière est consacrée à la Charte des Nations Unies, au jus cogens et à la doctrine erga omnes.

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