變動中的Jus Cogens--緣起、發展與定型(上)

The question of relation between the treaty and custom does not present a topic worth particular scientific attention there where the two institutions are not being confused. This does not only occur in Czechoslovak Doctrine of international law, but the reasons for such confusion imprint – in juristic works interpretation – on the functionality of the two institutions a content that is no longer in harmony with the development stage of the contemporary general international law and above all with its peremptory rules. The qualification of international custom as tacit treaty hitherto upheld in Czechoslovak writings of international jurists – is in respect of development essentially in accord with the international law prior to the Great October Socialist Revolution and the actual exposition of the relation between treaty and custom corresponds rather to the period when the coming Soviet power was confronted (also from the power aspect) with the imperialist international legal superstructure. This old conception is, therefore, incapable to express the nowadays indisputable normative reflection of the presence of the socialist social system within the class structure of the international community of states, in the content of its legal order – in the contemporary general international law. The question of the grounds of the origin and binding character of the customary law too little pursued by our juristic works is one of the main reasons for scientifically unfounded favouring of the international treaty to the detriment of international custom – of its functional importance in present day international law. This is in particular evident in the definition of peremptority of profiling rules of the contemporary general international law, their origin and reason for their binding character can not possibly be grasped by treaty form at all. Inapplicable, therefore, are also positivistic interpretations of the origin and binding character of customary law – the interpretation both by fiction of tacit treaty and by means of the so called “recognition” theory – at their time intentionally restricting attention to form which was to be complied with by rule makers, though from such mere form the content of unwritten law can not be known: or just in order to provide room to the positivistic doctrine for speculative deductions about the law as it should be. If it is impossible to elucidate the binding character of treaty rules without taking acount of material sources only sometimes (clausula rebus sic stantibus), then it is necessary to take acount of social and political circumstances – i. e. of material sources – attendant upon the origin of a rule of law and in abstractness expressed in the hypothesis of such rule, in the customary law always. This is indirectly but convincingly corroborated by the most refined of schools of legal formalism – the normativist school – declaring, namely, as a point of its programme material sources an unfit subject of interest of the international law theory, yet in the end the Very same school came to confess its inability to elucidate the origin and reasons for the binding character of international custom just by means of the formal sources of the law. The theoretical foundation for the exposition of the grounds of origin and binding character of international customary law – making use of the material sources of the law – was laid by the Anglo-Saxon law school and so by the school working currently with the instrument of custom even in the domestic field. Decisive for the school is not an a-priori form hypothetically set down by the international law, with which – according to the requirement of the doctrine – practice must comply to enable a customary rule to come into existence, but the very practice of the states is law constituting if it is also general (usus generalis) and if accompanied by awareness of necessity (opinio necessitatis), i. e. by the realisation of unfortunate consequences in the event of different procedure. The Anglo-Saxon interpretation of the grounds of the origin and binding character of the international customary law was adopted by authors of Soviet Doctrine of international law by stating (G. I. Tunkin) that for individual countries it is necessary to regard as binding rules that are recognised by the absolute majority of countries and governed by them, if among them are states of both systems, big powers included. Here the parallel appearing endeavour to bridge the existing dissension in the interpretation of the origin and binding character of international customary law led, however, in the end (most significantly in the instance of G. I. Tunkin) to emphasizing consensus and thereby – conformably to the positivistic school – to the qualification of the international customary law as unwritten treaty; from there is but a little step to absolute favouring of the written treaty against custom, if custom be so described as unwritten treaty. In the Czechoslovak juristic works the treaty is favoured too not only because it is accompanied by an explicit expression of will compared to the hypothetical tacit and moreover presumed expression of will in the instance of custom (whereby treaty character is assigned to custom), but also because written law is attributed a higher value as compared to unwritten law and written treaty rules owing to their precision are designated as more reliable for legal regulation among states, in particular of different systems. The misconception of the value approach is proved by the relation between the customary (i. e. unwritten) general international law as treated in this country on the one hand and its codification on the other which relation is considered to be determined by the principle lex posterior derogat priori. Actually codification does not override any prior generally valid custom regulation, since universality in the acceptance of a codification treaty is as a matter of principle not required for coming in force in the instance of codification. In particular it is impossible Ito split jus cogens by such codification treaty in two particular regulations – one acting among the treaty signatories, the other for the remaining relations, since thereby would be abolished the jus cogens itself which in general international law is invalid ab initio – as also worded in Art. 53 of the Vienna Convention on the Law of Treaties (1969). The purport of codification is, therefore, merely to provide the general international customary law with a binding interpretation otherwise taken care of in the first place by the doctrine. Regarding the rules with which a codification treaty contributes to international law developments, these are of particular validity so long until rendered generally valid by law-creating custom, to which quality the codification treaty could have given just the stabilising impuls, but not the very binding character of legal validity: the same result could be brought about by a universal adoption of the codification treaty which is practically unrealistic. It is therefore wrong to see in the codification primarily a formulation of new rules in written form as currently handed down in the Czechoslovak international law literature, a codification treaty serving in the first place the written exposition of the general international law, a quality not met by newly provided rules in such treaty. Favouring of the treaty on the grounds of its written character to the detriment of custom because of its unwritten form has in the Czechoslovak Doctrine of international law the most serious consequences possibly there where written statements acquire principles of international law in the acts of potentially universal international organisations. To them should allegedly belong the part of general international law or even of a “constitution” wherefrom the validity of concrete rules of the international law is derived, though the very acts of such organisations are but of a recommending nature and the principles contained therein are no rules of international law whatever, being just a generalising interpretation of concrete rules of this law.

International law (IL) is in principle of a dispositive nature. The international community, which is the author of international law, is decentralized. Although there is no formal hierarchy within IL as a whole, there are some hierarchical elements. One of them is jus cogens, a legal category that can be found in the Vienna Convention on the Law of Treaties (VCLT), in different guidelines of the International Law Commission (on fragmentation, reservations), as well as in the Articles on the responsibility of states and international organisations and in international and national jurisprudence. This article analyses jus cogens from two perspectives: normative/static (e.g. the role of Article 53 VCLT; jus cogens as a rule, and its distinguishing criteria: formal, sociological and axiological; its relation to erga omnes obligations; and the catalogue) and functional/dynamic (e.g. ius cogens and law-making, especially the conclusion and extinction of treaties; its impact on the application and interpretation of IL and normative conflicts in IL). The article concludes that: ius cogens belongs to contemporary IL, but sometimes expectations are too high; its significant distinctive criterion is an axiological one (peremptory norms protect the most important values for humans and states/peoples) – as a result jus congens can be changed, but its replacement by other rule is inconceivable without a fundamental change in the nature of international community; the legal basis is jus necessarium (the objective universal legal consciousness of states); jus cogens restricts the freedom to undertake international obligations (not only treaties); it counters the fragmentation of IL; it gains some control, through the law of responsibility, over factual acts of IL subjects and over domestic law; and jus cogens shows a tendency to extend its effects on the activities of non-state actors, including their criminal responsibility.

Economic Sanctions Against Human Rights Violations

Ratner, Steven R. <i>The Thin Justice of International Law: A Moral Reckoning of the Law of Nations</i>.New York: Oxford University Press, 2015. Pp. 496. $85.00 (cloth).

The publication of a Policy Paper on Case Selection and Prioritization (the “Policy Paper”) by the Office of the Prosecutor (“OTP”) of the International Criminal Court (“ICC”) in September 2016 has reignited the longstanding discussion about the status of environmental crimes under international law. The Policy Paper expressed the intention of the OTP to consider, in the selection of crimes to be submitted to the jurisdiction of the ICC, those committed through, or resulting in, “the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land.” Such wording soon gained widespread attention, prompting many news outlets to declare that, from now on, the ICC would focus on prosecuting “environmental crimes.” The news sources’ enthusiasm, however, appears misplaced for several reasons. The first and foremost objection comes from a consideration of the ICC’s limited jurisdiction. In fact, this is strictly confined by the Rome Statute to the prosecution of “the most serious crimes of [international] concern,” currently identified as the genocide, war crimes, crimes against humanity, and aggression. The only reference to the environment that appears in the Rome Statute is included in Article 8.2(b)(iv), which lists among the activities constituting a war crime the act of, “[i]ntentionally launching an attack in the knowledge that such attack will cause . . . widespread, long-term and severe damage to the natural environment.” Given the limited attention to the environment, it would be difficult to maintain that the ICC has jurisdiction over “environmental crimes,” unless it could be shown that such jurisdiction either (i) may be derived implicitly from the current description under the Rome Statute of the crime of genocide, war crimes, and crimes against humanity, or (ii) has been extended by virtue of the creation of a new rule of international law, either customary or treaty-based. Most importantly, though, the possibility for the ICC to prosecute “environmental crimes” seems prevented by the failure to find a satisfactory definition for this notion. In the legal practice, this expression doesn’t have any authoritative meaning, as international treaties remain completely silent on the issue. And while several attempts at a definition have been made, as will be examined in more detail below, each of them raises several doubts and concerns. Many of the suggested definitions are, in fact, characterized by the lack of clarity with respect to the different sources from which the liability for “environmental crimes” arises and the specific consequences attached thereto. Indeed, such definitions indiscriminately consider: (i) the criminal liability of an individual arising from the breach of a rule of national environmental law; (ii) the criminal liability of an individual arising from the breach of a rule of international environmental law; and (iii) the liability of the State arising from the breach of a rule of international environmental law, whether customary or treaty-based. Of these three options, only the second would seem viable to serve as a foundation of the ICC’s jurisdiction over environmental crimes. The picture that emerges from the above-mentioned remarks shows that there is still widespread confusion on the consideration to be attributed to environmental crimes under international law, as well as the possibility of seeking prosecution for these crimes before an international tribunal. The purpose of this Note is to address such confusion and shed some light on the treatment that environmental crimes receive under international law. To do so, Part II provides a brief and general overview of the principles of international criminal law, with particular respect to: (i) its definition and the features distinguishing it from other overlapping branches of international law; (ii) the crimes that can be considered as belonging to its realm; and (iii) its sources and the possibility for it to evolve over time. Part III discusses what the term “environmental crime” means and which specific offenses, if any, may be punishable under international criminal law. In doing so, this Part will focus on the fundamental difference between “crimes under international law” and “transnational crimes” and the differences in the regimes applicable to each category. Lastly, Part IV discusses the current limits of the ICC’s jurisdiction and, in particular, the possibility of extending it to the prosecution of crimes, including environmental crimes not currently captured by the Rome Statute. Accordingly, this Part examines the potential impact of the Policy Paper in changing the scope of the ICC’s jurisdiction, as well as the relevance of other proposals advanced by academics and scholars to extend the ICC’s jurisdiction to environmental crimes. In this context, relevance will be given to the introduction of a crime of “ecocide” as a fifth crime against peace, and to the amendment of the description of the crimes provided under the Rome Statute through customary international law.

Research is devoted to the study of the process of formation and development of norms and institutions of international trade law in Ukraine in the IX – first half of the XVII centuries. International trade law in modern Ukraine began to take shape on the basis of customs as international trade could not develop spontaneously. The study found that during the formation of Kievan Rus as a powerful state the international treaty is gradually becoming the main source of international law. The process of concluding international agreements in the early tenth century divided into stages, which included: preparation and acceptance of the terms of the agreement, consent to its binding force, signing and guaranteeing the implementation of the international agreement. The analysis of Rus- Byzantium treaties gives the grounds to claim that they were all concluded in the form of international treaties contained the rules of international trade law and were public law. The paper emphasizes that in the field of international law the principles and norms of law of international treaties (pacta sunt servanda), international trade and maritime law as well as diplomatic (ambassadorial) law are beginning to take shape. Among the principles of international trade law the principle of mutual interest and respect is important which was mostly reflected in the then international treaties and became the basis for the future formation of a broader principle – the principle of reciprocity. The process of evolution of norms and institutions of international trade law in the second half of the fourteenth – first half of the seventeenth centuries was influenced by a certain economic decline of Ukrainian lands due to the Mongol-Tatar invasion. However the expansion of commodity production as well as the further development of international, political, economic and social relations contributed to the further genesis of international trade law. The main sources of international trade law were international trade custom, international legal treaty, the rules of Magdeburg law. The norms of customary commercial law regulated first of all the legal relations between members of trade corporate guilds. The purpose of an international legal agreement was to establish, change or terminate rights and responsibilities in various interstate relations. The nature of international treaties was political but their content and the principles of compliance by the parties directly affected trade relations between states and other subjects of international trade law. In terms of the number of contracting parties the agreements were usually bilateral. The development of norms and institutions of international trade law in the second half of the fourteenth – first half of the seventeenth centuries was characterized primarily by the spread of Magdeburg law which led to the inclusion of international trade law in the system of municipal (city) law. The norms of Magdeburg law established the procedure for electing the city authorities and its functions determined the activities of merchants’ associations, the procedure for trade, etc. In the cities according to the norms of Magdeburg law there was a well-established legal terminology which simplified the conclusion of commercial agreements between local and foreign merchants.

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.

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 Oxford ILDC online database, an online collection of domestic court decisions which apply international law, has been providing scholars with insights for many years. This casebook introduces key court decisions with brief introductory and connecting texts. An ideal text for practitioners, judges, and government officials, as well as for students of international law courses, the casebook explains the theories and doctrines underlying the use by domestic courts of international law and illustrates the key importance of domestic courts in the development of international law. It consists of five parts. Part I discusses the vertical relationship between international law and domestic law, looking at validity and supremacy, the standing of private parties to invoke it, direct effect, as well as avoidance and contestation. Part II focuses on the structural and procedural areas of international law, specifically statehood, jurisdiction, immunities, and international organizations. In Part III, sources of international law are detailed, looking at the law of treaties, customary international law, jus cogens, soft law, and international court decisions. Part IV addresses responsibility and redress, covering international responsibility and private remedies. Finally, Part V reviews substantive and functional areas of international law, including: terrorism, use of force, international humanitarian law, international criminal law, amnesties, economic and social rights.

The article analyzes the application of jus cogens and erga omnes obligations in international criminal justice. The main ideas that were the basis of the concept of jus cogens norms and the concept of obligations erga omnes are investigated. The modern doctrines of jus cogens and erga omnes are analyzed. Imperative norms, which have a special legal force, is one of the characteristic features of modern international law. These rules are a set that determines the nature of international law, its goals and principles and in general its main content. The norms of jus cogens include the principles and norms of international law prohibiting aggression, war crimes, crimes against humanity, the crime of genocide and other international crimes. These crimes are of concern to the entire international community and oblige states to counter these horrific phenomena. Ensuring mandatory norms in the field of combating international crime requires the introduction of an effective international legal mechanism, an important element of which are the relevant international courts. In case of violation of imperative norms, there are universal legal relations of responsibility. The point is that not only the directly affected state, but also any other state has the right to raise the issue of the offender’s liability, in particular in the case of international crimes. This is similar to the Roman rule «actio popularis», according to which every member of society had a legal right to protect public interests. With this in mind, jus cogens and erga omnes are at the heart of the legal framework of international criminal courts and are an important area of research in international criminal law. Key words: jus cogens norms, erga omnes obligations, international crimes, international criminal court.

Introduction This first chapter focuses on defining the contours of the concept of customary international law in both general international law and international investment law. We will therefore not examine the different notions of custom that have been put forward by scholars and tribunals in other sub-fields of international law, such as international human rights law, international criminal law or international humanitarian law (Section 1.1). The following five questions will be addressed in this chapter. First, we will begin with an analysis of the complex nature of custom as one of the formal sources of international law (Section 1.2). Any book dealing with the sources of law in investor-State arbitration must be solidly grounded on general public international law. The following basic (yet fundamental) questions will be examined in this section: – Where does custom fit amongst the formal sources of international law? – How do customary rules emerge? – Why are customary rules obligatory? – What is the role of the consent of States in the development of customary rules? Second, another basic question that must be assessed at the outset of this book is the so-called double requirement of State practice and opinio juris which has been adopted by international tribunals to draw conclusions on the existence of customary rules (Section 1.3). We will briefly explore the so-called traditional and modern approaches, which have been adopted by scholars, regarding the necessity to demonstrate both requirements. This will bring us to the next issue, which is how this double requirement has been applied by investor-State arbitration tribunals. Moreover, I will examine the position that States have adopted in their pleadings and treaties regarding the necessity to demonstrate the two requirements of State practice and opinio juris . Third, I will address the basic requirement that the party who is alleging the existence of a customary rule must demonstrate that the norm has acquired such status by presenting relevant evidence of State practice and opinio juris (Section 1.4). I will observe that this basic principle has been adopted by all investment tribunals. Fourth, I will analyse the role played by judges and courts, including arbitral tribunals, in the formation and identification of customary rules in both general international law and investment arbitration (Section 1.5).

International Law and Treaties

The Nuremberg tribunal was the expression and the beginning of states' recognition of their duty to prosecute genocide and other gross human rights violations. It was a first step towards fulfillin...

What role do local communities play in the making of international economic law? Does local cultural heritage and values matter in the adjudication of international economic disputes? Where there is a conflict between the objective of global economic liberalization and the pursuit of local cultural policies, should the local give way to the global? Like other branches of international law, international economic law treats each state as one unit and does not typically focus on the different subparts within states. As a result, local communities do not appear in the text of international economic law treaties. Only recently have local communities gradually emerged in the adjudication of international economic disputes. Despite their gradual appearance, they still remain significantly absent or marginalised in mainstream international economic law discourse. This chapter aims to fill this gap in legal literature investigating the impact of economic globalization on local communities and the role that local communities play in international economic law and adjudication. The clash between local cultural values and international economic governance is one example of the tension between international law and state autonomy and of the subsequent local adaptation of, and/or local resistance to, international law standards. It illustrates the challenge of implementing international law at the local level.

The rise of international criminal law has been one of the remarkable features of international law since 1990. One of the less-explored questions of international criminal law is its social effects, within the international community and the community of public international law, in other parts and activities of international law. In particular, what are the effects of the rise of international criminal law and its emerging system of tribunals on the rest of the laws of armed confl ict? What are the effects upon apparently unrelated aspects of humanitarian and human rights law? What are the effects upon other large systems and institutions of public international law, such as the UN and other international organizations? As international criminal law has emerged as a visible face of public international law, has it supplanted or even ' crowded ' other aspects and institutions of public international law? This brief article offers a high-altitude, high-speed look at the effects of international criminal law on other parts of public international law and organizations.