Cogens Norms Research Articles

Article: Green Subsidies: The Good, the Bad, and the Ugly

This article examines the legal framework governing subsidies. It scrutinizes the manner in which green subsidies are treated under the Agreement on Subsidies and Countervailing Measure (ASCM). The main issue of the current system is that subsidies cannot be justified by a policy rationale. This paper then discusses some of the proposals made for the amendment of ASCM in order to provide states with sufficient policy space. This article examines the question of whether international climate change obligations are jus cogens norms, before ending with concluding remarks.

Positive Duties of the Security Council Under the UN Charter and International Law

Abstract The current international context, characterised by a crisis in the multilateral institutions including the United Nations Security Council (sc), invites one to explore an often-overlooked question: whether the UN Charter and international law impose positive duties on the sc. To answer this question, this article offers a theoretical approach to an issue that has not received much attention from the authors. This exploratory study discusses the existence of duties of the sc; it analyses those duties under the Charter and international law, especially in Article 39, in the UN Purposes and Principles, and in the jus cogens norms. The article deals with the content and scope of the duties, arguing for a due diligence nature of them, and it also addresses the issue of the consequences of breaches, especially the institutional consequences within the UN system.

Exploring the non-refoulment principle in the ECtHR jurisprudence

This research explores the applications of the non-refoulment principle under the European Court of Human Rights (ECtHR) jurisprudence. We have analyzed the trending and complex debate to argue whether it is legally possible for Türkiye to initiate repatriation processes for Syrians under Temporary Protection (SuTPs). Indeed, the World’s leading refugee hosting country, Türkiye, has implemented several ways to ensure a safe and secure return of SuTPs. Concomitantly, the increasing numbers of SuTPs who vacate Syria during holidays accelerated the narratives for their permanent return. Although the jus cogens norm of non-refoulment cannot be breached, it is still a concern by host countries to determine when it is legal to repatriate refugees after extensive hosting periods. In this research, we explore that there are nuances to the implementation of the non-refoulment principle in the ECtHR jurisprudence. International cooperation and convincing the international community are essential elements for triggering the repatriation programs. Hence, Türkiye should cooperate with other countries to establish a safe zone and to acknowledge the international community for the safety of returnees to eliminate the accusations of breaching the non-refoulment principle.

Revitalizing the International Law Discourse on the Prohibition of Maritime Piracy: Voices from International Law Commission’s Work on Peremptory Norms of General International Law (Jus Cogens)

The International Law Commission (ILC) is tasked with the codification and progressive development of international law. Recently, the ILC submitted to the United Nations General Assembly (UNGA) in its 73rd session ‘Draft Conclusions on identification and legal consequences of peremptory norms of general international law (jus cogens)’. The report holds significance as the concept of the jus cogens has been shrouded in mystery since its inception in the Vienna Convention on the Law of Treaties (VCLT) in 1969. The Draft Conclusion 23 (non-exhaustive list) identifies eight norms (annex) fulfilling the requirement of jus cogens. The ILC clearly states that “…the inclusion of the list in the annex in no way precludes the existence of other norms that may have a peremptory character or the emergence of other norms in the future having that character.”[1] Thus leaving space for the inclusion of fresh norms through subsequent studies. Nonetheless, the ILC provided the techniques to identify peremptory norms under Draft Conclusions 4 to 9. Through this article, the author argues that the prohibition of piracy has matured into a jus cogens norm. This is done by applying the techniques formulated by the ILC in its recent report. Although there are several writings on the prohibition of piracy as customary international law, it has received scant attention in the context of the jus cogens, and the author intends to fill this lacuna. This study assumes relevance as States increasingly adopt domestic legislation to combat piracy.

‘Here Be Dragons’: Mapping the Legal Contours of Jus Cogens in International Law

The purpose of this article is to demystify jus cogens rules by trying to map their legal contours. After defining jus cogens and providing a theoretical scaffolding drawn from elementary works on legal theory, the household jus cogens prohibition of genocide is analysed in light of such notions. As a result, jus cogens norms are characterised both as primary rules of behaviour and as secondary rules of change for legal production, constituting an international public order that serves as a tool for international law to safeguard human security.

Universal Jurisdiction, Jus Cogens, and Suppression Conventions in the Aftermath of Lockerbie

Universal jurisdiction is a principle of international law that maintains the right to try an accused for serious crimes that are globally recognised. The offences are defined in international customary law and include the breach of the jus cogens norms. The liability for breach of the Suppression of Unlawful Acts Against the Safety of Civil Aviation (‘Montreal Convention’) was invoked in the case of suspects from Libyan Arab Jamahiriya in the Lockerbie air disaster. The United Kingdom and the United States made a separate request to the UN Security Council to take certain provisional measures against Libya, calculated to coerce or compel it to surrender the accused individuals to any jurisdiction outside Libya. The judgment led to a miscarriage of justice as the accused were tried under Scottish law and the issue is whether a ‘third alternative’ could be added to the traditional aut dedere aut judicare principle – aut transferere. The argument here is that in order for the principle to be sustained there should be recognition of the principle of universal jurisdiction and the ambit of the Suppression Conventions should be extended so that a trial can be conducted in the domestic courts of a foreign defendant.

Exclusion of the principle of non-refoulement in article 33 paragraph 2 of the 1951 refuge convention

This study aims to examine whether non-refoulement in the refugee context has attained the status of a jus cogens norm or not and how the exceptions in Article 33(2) should be understood if non-refoulement is indeed considered as a jus cogens. This research adopts a normative juridical analysis approach to critically examine the status of the principle of non-refoulement. The study concludes that the principle of non-refoulement qualifies as a norm of jus cogens based on several key criteria. Firstly, it satisfies the requirements of a jus cogens norm by addressing matters of common concern to the international community, serving humanitarian purposes, and aligning with principles outlined in the UN Charter relating to treaties and the use of force in international relations. Secondly, the exception outlined in Article 33 Paragraph 2 of the Refugee Convention does not alter the non-derogable nature of the principle of non-refoulement. The fulfillment of Article 33 Paragraph 2 is contingent upon strict conditions and necessitates objective evidence to be provided by a country. The research is intended to contribute to the understanding of the normative status of the principle of non-refoulement within the framework of international refugee law.

What do jus cogens norms do for the international community?

This paper aims to delve into the qualities and content of norms of general international law classified as peremptory (jus cogens). To do so, three questions will be answered: (i) how does jus cogens arise, (ii) how is jus cogens changed and eliminated and (iii) what is jus cogens “utility”? The first question will be answered by adopting a two-stage formal criterion, based on the provisions of the Vienna Convention on the Law of Treaties. In this section, it will be demonstrated that jus cogens may have trivial content. Next, it will be argued that the process of modification and elimination of jus cogens depends to a great extent on the non-verification of the necessary conditions for its emergence. Finally, the “utility question” will deal with the alleged constitutionalist function of jus co- gens and its relevance, namely by limiting the power of the States and strengthening the rule of law.

Sustainable development in the Mercosur-European Union Association Agreement: tensions and expectations

This article offers an internationalist perspective on the environmental issue within interregional agreements, focusing on the European Union-Mercosur Free Trade Association Agreement, which is currently in the process of ratifications. We qualitatively analyze the history and evolution of international environmental law, the importance of the indicative origin of said legal discipline, and the dialogue of sources typical of Public International Law in order to highlight the strengths of Soft Law in the construction of a global paradigm of. Sustainable Development. We consider the aspects of environmental regulations, where the legal nature of the right to sustainable development is analyzed, as well as the limitation of the sovereignty of States in these issues; in conceiving it as a fundamental right of the human person and an international jus cogens norm. The sustainable development article of the Agreement is considered as a relevant point of analysis, and how it could have an impact on the dispute resolution mechanisms and procedures established by MERCOSUR and the European Union regarding disputes that may arise in relation to commercial activities that may affect the environment. The methodology was deductive, with bibliographic survey, analysis of jurisprudence and exegesis of normative texts.

No Choice but Welcoming Refugees: The Non-Refoulement Principle as Customary International Law in Indonesia

The non-refoulement principle requires each country to consider refugees and asylum seekers in their country of origin if they are subject to persecution and threaten their lives. As a geographically strategic country, Indonesia has been a significant crossroad for international refugees and asylum seekers often consider Indonesia their temporary destination. Moreover, the complex situation of international refugees has encouraged to reinterpret of the principle of non-refoulement into various national measures and domestic policies, given that Indonesia is deemed a transit country for refugees and has not ratified the 1951 Convention on the Status of Refugees. This paper aims to analyse the concept of refugee protection under international law, particularly the non-refoulement principle and investigate the application of the non-refoulement principle in Indonesia. This study employed normative and empirical legal research with statutory, conceptual, and comparative approaches. This study confirms that the non-refoulement principle is part of jus cogens norms in international law but does not fit in its application. Indonesia has inconsistency in upholding the non-refoulement principle into the binding normative rules. Refugees have received far less attention from the Indonesian government due to insufficient infrastructure and financial allocation. Moreover, the existing executive regulations do not provide effective enforcement since these regulations have a lower position in the hierarchy and cannot have deterrent sanctions. Hence, ratification of the 1951 Convention is urgently needed by Indonesia to guarantee the protection of refugees within its jurisdiction. At the regional scope, Indonesia can encourage ASEAN countries to adopt good practices in the European Union to set sharing quotas to ensure that not most refugees escape to Indonesia.

The advisory role of international courts in the evolution of human rights law

Human rights have the pedigree of a distinguished struggle against oppression: everyone shall be treated with respect for their inherent dignity and human worth.3 The horrors of the Second World War provided the legal basis for the modern human rights law. The establishment of the United Nations (UN) signalled the beginning of an international concern for the protection of human rights. Human rights transnational institutions have developed human rights principles, some recognized as jus cogens norms. Nonetheless the application of human rights law in courts is almost always contested. The functions of international courts such as the International Court of Justice (ICJ) are dependant on the States volition and the settlement of disputes between them. Whenever asked by the UN organs and specialized agencies, international courts also give advisory opinions on contentious legal questions. The impact of international jurisprudence on contemporary international law is significant, assessing key areas of international law, such as law of the sea, international environment law and international human rights law. Note that, in this paper we focus on the particular impact of the advisory opinions on the human rights law.

Elimination of Discrimination Against Women & CEDAW: to What Extent is it Jus Cogens?

The international community gathers on occasion to try and achieve specific purposes, through the development of a system of guidance, norms and regulations for States to observe, commonly called international law. There have been many achievements by the international community working together for the collective interests of the States, for example through the creation of human rights law. Many international treaties have been passed that bind the States to achieve the desired collective purposes. One of these is the Convention on The Elimination of All Forms of Discrimination Against Women, which departs from the fundamental norms set by the United Nations Charter as well as the Universal Declaration of Human Rights about equality between the rights of men and women for their dignity and freedom. However, several States that are party to the Convention have reserved some of the articles, and there is some controversy around it. Therefore, it is the purpose of this article to analyse whether the concept of eliminating discrimination against women and the values and norms contained in CEDAW can be categorised as Jus Cogens norms, in view of the fact that it is a manifestation of the human rights values agreed upon by the international community. Moreover, this article will also analyse the Convention’s implications on domestic norms in States with significant reservations to the Convention.

The World Trade Organization and Jus Cogens Norms

The World Trade Organization and Jus Cogens Norms

Global Climate Change Action as a Jus Cogens Norm: Some Legal Reflections on the Emerging Evidence

This article analyzes the possibility of environmental obligations acquiring the status of jus cogens (peremptory) norms from six perspectives, namely, domestic legislation of States, national judicial decisions, academia and international organizations, United Nations documents and initiatives, treaties and international State practice, and international tribunals. Additionally, it is argued that the economic and political interests surrounding the military and fossil fuel industries and the vast resources dedicated to them hinder the world’s climate change efforts. Thus, the article presents two research questions. First, what are the possibilities of environmental obligations becoming peremptory norms of international law? Second, if these obligations currently do not meet the requirements to be recognized as jus cogens, what would be required for them to obtain this status?

반인도불법행위에 대한 국가면제이론의 적용과 소송법적 과제 - 위안부 사건에 관한 하급심 판결을 중심으로 -

Since World War II, legal remedies for war crimes made during the Japanese colonial period have not been adequately provided. Comfort women victims filed a lawsuit for damages for illegal acts directly against Japan on August 8, 2013, and December 12, 2016. As a result, in January and April 2021, the lower courts reached the opposite conclusions. The judgment in favor of the plaintiff was confirmed because of Japan’s inaction. On the other hand, the victims appealed against the judgment they lost. Attention is being paid to the decision of the appeal in the future. The above two sentences concluded other solutions whether customary international law that recognizes the exception of state immunity in the case of unlawful acts against humanity had been established, whether or not the existence of jus cogens norms under international law, and whether superiority over customary international law can be recognized.<BR> It may be judged that it is premature to recognize the customary international law that allows the exception of state immunity in the case of torts against humanity, considering the current state of international conventions and the level of implementation of most countries. The jurisprudence that excludes the grant of state immunity in case of violation of jus cogens norms under international law has been repeatedly adopted in several countries, including Italy and Greece, though. Even if it is not adopted, many judges continuously support it with minority and dissenting opinions, so the judgment seems quite transitional. It is judged that the above legal principle of exclusion of state immunity is a process that is steadily building up the national practice until it is established as international customary law, accompanied by legal conviction. In addition, given the specificity of the relationship between Korea and Japan and Japan’s awareness and response level for the relief of the comfort women, if the victims’ direct claims for damages to Japan through the civil court are blocked by the state immunity, the way to recover of the victims’ damage is going to be distant.<BR> The 2016 Gahap 580239 case of the Seoul Central District Court, which concluded that the plaintiff lost (dismissed), failed to reach an advanced conclusion in the process of grasping the current valid customary international law on state immunity. It is only a relatively safe interpretation within the existing framework of state immunity, and it is regrettable to develop its logic.<BR> In judging customary international law in this case, the jus cogens norm under international law should be considered as the superior norm. Human rights are a universal concept and should be treated as guaranteed regardless of each country’s political, economic, or cultural differences. If a government violates the jus cogens norms, it is outside the boundaries set by the international community itself, so the privileges granted to that country should be confiscated. In addition, in this case, the exclusion of state immunity would be a conclusion consistent with the right to a trial guaranteed by Article 27 of our Constitution and the dignity and value of human beings guaranteed by Article 10 of the Constitution.<BR> On the other hand, the legal basis of our Supreme Court decision is vaguely based on customary international law, international law, or international practice, so it can be seen that the legal stability is weak. Therefore, like many other countries, Korea should consider membership in UNCSI and prepare relevant domestic legislation.<BR> Finally, even if customary international law judges that it has not reached the level that excludes state immunity, in this case, the court can suspend the litigation procedures by applying or analogically applying the provisions for stay of litigation under the Civil Procedure Act. This can be a way to protect the victims’ interests to interrupt the statute of limitation and prevent them from severely infringing the right to request a trial.

The Legality of Unilateral Extra-territorial Sanctions under International Law

Abstract Following its withdrawal from the Joint Comprehensive Plan of Action, the USA re-imposed economic and financial sanctions against Iran. Its current unilateral sanctions regime against the country contains extra-territorial sanctions which prohibit non-US nationals and non-US companies from trading with and investing in Iran. Foreign legal and natural persons who do not comply with the US extra-territorial legislation are faced with a variety of limitations, including access restrictions, fines and penalties. Thereby they not only put pressure on operators worldwide but also interfere with the sovereign foreign policy choices of states and international organisations such as the European Union (EU) who support legitimate trade with Iran. Equally problematic are the extra-territorial sanctions contained in the US sanctions regime against Cuba. The article examines the lawfulness of unilateral extra-territorial sanctions as a form of targeted sanction under international law in the relationship between the sanctioning state and other sovereign international actors affected by the extra-territorial legislation in light of the customary law on jurisdiction, the law on sanctions as well as the principle of non-intervention. The relationship between the US and the EU and its Member States will be taken as an example. It will be shown that unilateral extra-territorial sanctions may amount to an abuse of rights in case they are functionally connected to primary sanctions that violate jus cogens norms or that undermine the UN Charter system, irrespective of the strength of the exercised economic pressure.

Krivičnopravni imunitet državnih zvaničnika u međunarodnom pravu

The paper analyzes the practice of the states and international courts regarding the recognition, non - recognition or withdrawal of immunity in cases which are in accordance with international criminal law and against state officials, including highlevel officials. This paper offers an analysis of the historical role of World War II in recognizing individual criminal responsibilities in international law, enabling the criminal process and prosecuting officers for violating jus cogens norms. In this sense, we should distinguish the immunity ratione personae (personal immunity) from the immunity ratione materiae (functional immunity). High state officials such as the Head of State, the Prime Minister and the Minister of Foreign Affairs have the immunity ratione personae. On the other hand, the immunity ratione materiae is enjoyed by other officials. While personal immunity derives from the function performed by high-rank officials and should ensure unhindered performance of their duties, functional immunity is the immunity of the state and should primarily protect the state, not the official, because the official acts only on behalf of the state. Based on this, the paper points out that the practice of domestic courts, the International Court of Justice and the International Criminal Court in recognizing or withdrawing immunity of state officials is inconsistent. The paper analyzes the Seventh Report on Immunity of State Officials from foreign criminal jurisdiction by the Commission on International Law and indicates the areas in which the articles of a potential document on the criminal immunity of state officials in international law should be elaborated. In addition to contradictory judgments of the International Court of Justice and the International Criminal Court, the impossibility of defining uniform rules arises because the states have different understanding and believe that the dignity of the state will be endangered if their high officials are prosecuted by courts of other states. The paper concludes that further monitoring of the work of relevant international and domestic courts is needed in order to uniform rules and produce a draft document on criminal immunity of state representatives in international law based on uniform practice.

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

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.

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

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.

Albanian National Museums: How to Overcome the Digital Gap Towards a Better National Heritage Promotion

Article 53 of the Vienna Convention of 1969 states that a treaty is considered invalid if it is in conflict with existing norms of jus cogens, and under Article 64 of the treaty becomes invalid if it conflicts with a norm youngest of the same nature. The case Nicaragua against the United States made clear that the notion of jus cogens is steadily entrenched in international law, however, is still necessary to determine accurately that power rates referred to in Articles 53 and 64 of the Vienna Convention. Jus cogens norms include more those norms relating to morality or natural law than with traditional positivist rates derived from State practice. In general, this includes making aggressive war, crimes against humanity, war crimes, sea piracy, genocide, apartheid, slavery, and torture.Jus cogens norms are norms of customary international law which are so important, it can not be changed through treaties. Under the Vienna Convention on the Law of Treaties, any treaty that is contrary to jus cogens norms is invalid. Jus cogens norms are not listed, there is no catalog , their determined by any authoritative body, but these rates come from judicial practices and political and social attitudes, which are not values static. Jus cogens norm of unconditional right international, accepted and recognized by the international community norm from which no deviation is permitted. Unlike the common law, which traditionally requires the consent and It lets change obligations between states through treaties, norms jus cogens can not be violated by any state "through treaties international or local regulations or special customary, or even through general rules of customary not have the same normative force.