Ius Cogens Research Articles

The Warning Voice from Heidelberg: Radbruch, Dugard and the Prosecution of State Injustice

This article explores the relationship between John Dugard and Gustav Radbruch. Drawing on the legal philosophy of Gustav Radbruch and John Dugard’s work on international criminal law the article addresses the complex question of whether retroactive punishment is legally and morally justifiable. The article discusses Dugard’s views on the question of retroactivity in three contexts: firstly, in his opinion on the legality of extraterritorial prosecution of torture in the Bouterse case; secondly, through his criticism of the Constitutional Court’s decision in Azapo; and thirdly, by his support for ius cogens norms as expressed in his separate opinion in the Congo v Rwanda decision. The article concludes that Dugard’s support for retroactive punishment in the specific context of serious international crimes is another example of his lifelong dedication to ‘higher law’ and his faith in the normative evolution of international law.

The Role of European Courts in the Development of a Hierarchy of Norms within International Law: Evidence of Constitutionalisation?

Constitutionalism – Kadi ruling of EU Court of First Instance – Erosion of ‘total’ constitutional order by reallocation of public power – Constitutional vision challenge of networks approach – Emerging human rights hierarchy – Rudimentary international value system – Ius cogens and erga omnes – Barcelona Traction – Core human rights elements – Enforcement through regional and domestic courts – Review of Security Council resolutions

The Mystery of the Triangle of Refugee Law, Terrorism Law and Extradition Law: What to Do When a Refugee Is Also an Extraditable Terrorist?

How should a State act in order to be consistent with its international obligations in case a person with refugee status in its territory is required for extradition under terrorism charges? Part I.A of this article lays out the case of Walter Chavez — an alleged MRTA member granted refuge in Bolivia, whose extradition was recently denied, in spite of the terrorism charges still pending against him in Peru. Part I.B presents a case involving Colombia and Ecuador over two alleged FARC members granted refugee status in Nicaragua, who have recently been requested for extradition also under terrorism charges. Part I.C sets out the potential relevance for the U.S., Canada and the European Union that these issues of international law application may entail, in view of growing bilateral relations of some Latin American countries with Iran. In the backdrop of these cases, part II addresses the main issue of this article through presenting the current status of international law with special attention on the interaction of refugee, terrorism and extradition treaties, in order to provide general answers to three broad questions. First, part II.A tries to answer the question of what should States do when a refugee may actually be a terrorist, by resorting mainly to the UNHCR Guidelines for the application of the exclusion clauses of article 1F of the 1951 Convention. Second, part II.B deals with the question of how to define terrorism-related offenses by presenting some basic considerations about the current multilateral international conventions that address the issue. And third, part II.C is dedicated to the issue of how to apply extradition law in consistency with both refugee and terrorism law, by going through some basic provisions present in most extradition treaties. The paper concludes that the correct application of international Refugee law, Terrorism law and Extradition law, may never lead to the curtailing of the legitimate purposes of any of these bodies of rules, as they can be read in consistence with the universal preeminence of human rights. International cooperation in seeking to avoid the grave human rights violations terrorism-related offenses cause can be properly attained while firmly enforcing the fundamental right of the persecuted individual to be granted asylum. Indeed, the international law obligations entailed in this triangular relationship set the basic stage of principles and rules of application to impede abuses to the institution of asylum and the curtailing of human rights and ius cogens violations under the broad umbrella of the fight against terrorism.

The Globalization of Human Rights Law: Why Do Human Rights Need International Law?

This Essay examines the globalization of human rights law, a rather recent legal development which has occurred in two parallel ways: human rights have become part of most national constitutions and have been enshrined in widely accepted international treaties. The central question of this Essay is the utility of international law in the field of human rights protection. The conclusion is that ideally human rights protection should be a national matter, but in an imperfect world, with failing national protection, international human rights protection is a necessary alternative. This Essay examines how, in an imperfect world, international law can contribute to human rights protection, and also how it hinders this goal. It looks at the problems of immunity, self-determination, and non-intervention; monism versus dualism; ius cogens; international monitoring; and other ways in which international law can have a positive or negative impact on the protection of human rights.

Justice delayed or too late for justice? The Khmer Rouge Tribunal and the Cambodian “genocide” 1975–79

The Khmer Rouge under their leader Saloth Sar (“Pol Pot”) were in power in Cambodia between April 1975 and January 1979.1 They came into control of the country after a long and brutal civil war2 an...

El régimen internacional de la filiación y los derechos humanos: el diálogo de las fuentes.

Abstract. As regards filiation, different types of regulations co-exist within the Uruguayanlegal system: based on internal or international sources, on material or conflict sources,drawn up since the 19th century to this day, regulations which reflect prevailing legislativepolicies at the time in the national, regional or universal societies. Some regulations makea severe distinction between different types of filiation – especially between legitimate and illegitimate filiation – and put forward discriminatory solutions, while others establish theobligation to recognize equal rights for all children, them having been born in or out ofwedlock. The content of these sources is analyzed in this paper, how they interact, what the national and the international legislator has done and will have to do as regards this subject, as well as the role played by the judge when it comes to interpreting and applying International Private Law regulations on filiation, taking into account human rights conventions, the role of the Vienna Convention on the Law of Treaties, the effect of the supervening ius cogens in the Treaties on International Civil Law of Montevideo of 1889 and 1940, as well as in the International Private Law based on internal sources and the consequences of the criteria proposed.

The Prohibition of Genocide as a Norm of Ius Cogens and its Implications for the Enforcement of the Law of Genocide

The Prohibition of Genocide as a Norm of Ius Cogens and its Implications for the Enforcement of the Law of Genocide

Security and predictability under WTO law

This article focuses on the interpretation and application of law in WTO dispute settlement from the angle of legal certainty and predictability. An analysis of the interpretation of WTO law shows that in general it does not differ from the interpretation of other public international law as interpretative rules well known in international law are applied. This together with the consistence provided by the respect of earlier panel and Appellate Body reports safeguard legal certainty. Furthermore, legal certainty and predictability requires clarity in the law applicable in WTO dispute settlement, in particular as regards non-WTO law. It will be shown that apart from peremptory norms of public international law (ius cogens), the relevance of international law outside WTO law is limited. Non-WTO treaty law must not be applied except if referred to by WTO law or incorporated therein. Apart from that international law of any kind can only be considered when interpreting WTO law. In certain circumstances this applies even to non-WTO treaty law to which not all WTO members are parties. Due to the as yet limited importance of non-WTO law, legal certainty and predictability also depend on the issue of conflict of norms, which also is relevant as far as the interrelationship of the different WTO agreements is concerned. In this regard predictability and legal certainty cannot be fully reached.

Hacia un nuevo concepto de matrimonio y familia

Over the last several years there has been a noticeable change with regard to the concept of family; a change which equates, or at least tries to equate, matrimonial unions and de facto unions -homosexual as well as heterosexual- through an interpretation (which I believe to be forced) of articles 10 & 14 in relation with articles 31-1.° & 39 of the Spanish Constitution. As a direct result of this, there has been an attempt to recognise the juridical equality of both these types of union and the subsequent demand of certain rights, while ignoring or avoiding the resulting obligations. From the point of view of both civil and canon law, marriage is considered the stable union between a man and a woman with certain ends imposed by the Codex. From another perspective, both civil and canonical codes insist on certain conditions in the constitution or dissolution of a marriage, such as fulfilling certain formalities and obligations which fall within the concept of «ius cogens», and are therefore binding. With regard to other unions such conditions are not imposed, and therefore the union and the dissolution can be carried out at will. All of this has brought about a change in the idea of matrimony, bringing it closer to de facto unions, or rather it has led to a change in the idea of family. The modem-day family is a family in disintegration: there is a lack of authority towards children who in turn often lack purpose; rebellion towards parental authority reaches new heights; sexual relations and promiscuity begin at even younger ages; unwanted pregnancies are common, etc. Faced with this cultural situation, attempts are being made to encourage family members, although they have different roles to play, to work for the benefit of the family community; children are obliged to contribute from their earnings to the common family purse; there is an attempt to respect the personalities of the children and their physical and intellectual predispositions; religious freedom prevails; social formation is encouraged; but most of all state recognition of the family as that which transcends society is essential.

Globalverfassung: Los desaparecidos und das Paradox der Menschenrechte

Zusammenfassung Der Artikel diskutiert transnationale Rechtsprozesse im Menschenrechts-Recht, das haßt Skandalisierungsprozesse und politische Instaurierungsmechanismen, in denen transnationale Rechtsnormen gebildet Verden. Aus der Beobachtung dieser Prozesse ergibt sich die Feststellung dass sich auch auf der globalen Ebene eine Institution gebildet hat, die eine strukturelle Kopplung des politischen und des Rechts-Systems leistet: eine (Global)- Vetfassung. Im Unterschied Entwürfen einer Weltverfassung als „Verfassung eines globalen Minimalstaates“ oder der Weltverfassung als „Veifassung der Weltföderation“ beschränkt sich diese funktionale Analyse darauf zu untersuchen, welche Funktionen den aktuellen Rechtsprogrammen und Strukturen zukommt. So stellen Art. 38 IGH-Statut, die durch die Prinzipien ius cogens und erga omnes dignisierten Fundamentalmenschenrechte, das Gewalt- und das Interventionsverbot zwar ein funktionales Äquivalent nationalstaatlichen Verfassungen dar. Weitergehende Legitimationsbehauptungen können aber aus der Existenz einer funktionalen Globalverfassung nicht abgeleitet werden.

WELL-PROTECTED ENEMIES OF MANKIND

[T]he torturer has become—like the pirate and the slave trader before him—hostis humani generis, an enemy of all mankind. (Kaufman J. in Filártiga v. Peña-Irala 630 F. 2d 876, 890 (2d Cir.,1980)).The European Court of Human Rights’ decision in Al-Adsani v. UK (2002) 34 E.H.R.R. 273 does not openly reject the view that torturers have become enemies of all mankind. It does however affirm that they can protect themselves abroad with a magic weapon that neither pirates nor slave traders usually possessed. This is the shield of sovereign immunity, which prevents State torturers from being tried before courts of a foreign State. In Al-Adsani, the ECHR, by a bare majority of 9 votes to 8, decided that States and their officials can invoke immunity even where they are accused of breaches of peremptory norms of international law (ius cogens), i.e. norms which, by definition, admit of no derogation (Article 53 of the Vienna Convention on the Law of Treaties).

The Tension Between Party Autonomy and European Union Law: Some Observations onIngmar GB Ltd V Eaton Leonard Technologies Inc

Party autonomy is the basic principle for international contracts. By making a ‘choice of law’, the parties to a contract can agree amongst themselves which law is to regulate their contractual relationship. In international transactions, the law of the parties' choice replaces the law that would otherwise have governed the contract, including the mandatory rules (ius cogens) of the latter law. Article 3 of the 1980 Convention on the Law Applicable to Contractual Obligations (hereafter: the ‘Rome Convention’) fully recognises this principle of party autonomy. Under Article 3 the parties are free to choose whichever law they deem appropriate to govern their contractual relationship. It is not even necessary for the transaction to display some connection with the chosen law.

Playing the Devil's Advocate: the United Nations Security Council is Unbound by Law

Playing the devil's advocate, it is argued that ultimately there are no international legal limits to the UN Security Council's enforcement powers. The argument is based on a brief analysis of various UN Charter provisions and the rejection of the ius cogens concept and other possible arguments for international legal limits. The conclusion reached is that the UN Security Council has unfettered powers when dealing with maintenance of international peace and security issues.Is it true of the Security Council, that: […] because the End of this Institution is the Peace and Defence of […] all; and whosoever has the Right to the End, has the Right to the Means, it belongeth of Right [to him] to be Judge both of the Meanes [sic] of Peace and Defence; and also of the hindrances and disturbances of the same; and to do whatsoever he shall think necessary to be done […]Martti Koskenniemi, quoting from Thomas Hobbes' Leviathan

State Immunity and Fundamental Human Rights

Should state immunity from jurisdiction be denied to states that violate fundamental human rights in breach of international law? This article critically discusses three analytical approaches which can be used to answer the question at the level of international law. These approaches are derived from a review of principles of state immunity and fundamental human rights, including ius cogens. The article goes on to examine why the results dictated by these approaches at the level ot international law may not be reflected by municipal legal systems, using US domestic statutes and case law as an example of how a domestic legal system has dealt with this question.

Jalil Kasto, Ius Cogens and Humanitarian Law, Kingston: published by the author (1994) 93 + v pages, Index. $20; 12

Jalil Kasto, Ius Cogens and Humanitarian Law, Kingston: published by the author (1994) 93 + v pages, Index. $20; 12

Jalil Kasto, Ius Cogens and Humanitarian Law, Kingston: published by the author (1994) 93 + v pages, Index. $20; 12

Jalil Kasto, Ius Cogens and Humanitarian Law, Kingston: published by the author (1994) 93 + v pages, Index. $20; 12