Jus Cogens Norms Research Articles

The legal consequences of jus cogens and the individuation of norms

AbstractInternational law ascribes to the conferral of a jus cogens status on a norm a particular legal significance. Bluntly put, jus cogens norms have legal consequences that norms of ordinary international law do not. International lawyers have a great many different ideas of what these legal consequences are more precisely. As of yet, the reason for this divide has not been fully clarified. This void tends to confuse jus cogens discourse on several issues such as the immunity of states and state officials in judicial proceedings originating in the violation of jus cogens norms, or the extradition of alleged perpetrators of international crimes, or again the non-applicability of amnesty laws concerning such crimes. It also impedes the justification of judicial and other legal decisions.As this article argues, contrary to the general assumption, a lawyer’s conception of the legal consequences of jus cogens is not theory-neutral but dependent on his or her preferred understanding of the concept of law. The argument goes briefly as follows: (i) What causes international lawyers to disagree is the issue of whether or not jus cogens norms entail obligations concerned with their own enforcement; (ii) this is essentially an issue concerning the individuation of norms; (iii) depending on whether a lawyer takes the position of a legal positivist or a legal idealist, he or she uses different criteria for the individuation of jus cogens norms; and (iv) this is why, for legal idealists, jus cogens norms entail obligations concerned with their own enforcement, whereas for legal positivists they do not.

The Responsibility Not to Veto Revisited under the Theory of ‘Consequential Jus Cogens’

In this article, I argue that contemporary international law imposes an obligation upon the UN Security Council permanent members to refrain from using their veto repeatedly in ways that impede the Council from acting against violations of peremptory norms. This obligation not to veto emanates from the duty to cooperate to end violations of peremptory norms as enshrined in Article 41(1) of the International Law Commission Articles on State Responsibility. For this purpose, I demonstrate that the duty to cooperate itself possesses a peremptory character under the theory of ‘consequential jus cogens’, whereby effects of jus cogens norms are themselves peremptory. In doing so, this article contributes to the ongoing debates concerning the legal nature of the effects of jus cogens norms by showing that the theory of ‘consequential jus cogens’ is an application of the generally accepted maxim accessorium sequitur principale and thus forms part of positive international law.

Jus cogens standards and erga omnes commitments in international criminal justice

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.

A Critique on the Concept of Jus Cogens and Its Substantive Content in International Law: A Brief Overview

The legal concept of jus cogens in international law was introduced by the Vienna Convention on the Law of Treaties (VCLT). This convention does not explicitly define jus cogens. Article 53 of the VCLT instead enumerates the conditions that norms should fill in order to qualify as peremptory norms. This convention, however, is still lack of clarity on the concept of jus cogens norms and its substantive content. In this paper, the authors briefly explained to readers: what does the term jus cogens mean in a general sense; what norms are falling within the catalogue of jus cogens ; and how do we decide which norms are jus cogens norms. Hence, this paper deals with problems and difficulties arise under international law with regard to the concept of jus cogens and its substantive content using a conceptual, normative and case approach. Keywords: Jus Cogens, VCLT, International Law, Peremptory norm. DOI: 10.7176/IAGS/68-03 Publication date: July 31 st 2020

일괄보상협정과 국제법상 강행규범의 관계

국가들 간의 양자적, 상호주의적 법률관계의 집합으로 관념되어 오던 국제법은, 국제공동체 전체의 이익보호를 위한 강행규범(peremptory norms of international law; jus cogens) 개념의 발전으로 변화의 조짐을 보이고 있다. 조약법에 관한 비엔나협약(Vienna Convention on the Law of Treaties; 이하 VCLT) 제53조에 따라 그와 배치되는 내용의 법규범을 무효화시킬 힘을 갖게 된 강행규범 개념이 국제법에 본격적으로 소개되게 되었고, 국제공동체 내에서 강행규범의 취지를 보다 확실히 실현하기 위한 목적론적 해석의 경향이 학계 내에 자리잡게 되었다.BR 상기 국가 위주의 국제법질서에서 외교적 보호는 국가의 간접손해, 즉 국가의 구성원인 개인의 손해에 대한 국가 고유의 권리로 관념되어 왔고, 이와 같은 맥락에서 피해국의 국적국은 이른바 ‘일괄보상협정(lump-sum agreements)’를 통해 자국의 국민이 타국에 대하여 입은 손해배상청구권을 자신의 임의대로 변제받고 소멸시킬 수 있었다. 국제인권법의 도입으로 개인 국제법에 따라 인권을 보장받는 주체일 수 있음이 확인되면서 국가가 개인의 청구권을 임의로 소멸시킬 수 있다는 관념 역시 도전의 가능성에 직면해 있다. 개인의 기본적 인권을 강행규범이 보호하는 국제공동체 전체의 이익으로 관념하는 관점에서 보면, 일괄보상협정의 실정성과는 별개로 이것이 개인의 인권을 지나치게 침해함으로써 결국 강행규범을 위반하는 것이 아니냐는 의심은 충분히 들 수 있다.BR 그러나 현재 국제법상 강행규범의 법적 성격, 형성방식 및 그 효과에 대해 학계 그리고 실무계에 치열한 논쟁이 존재하고 있는 점, 강행규범으로 흔히 지적되는 의무들이 1차규칙과 관련된 의무인 반면 이로 인해 초래되는 손해배상의무는 2차규칙상의 의무라는 점에서 양자가 차원을 달리하는 점 등을 고려하면, 강행규범과 일괄보상협정의 관계를 고찰함에 있어서는 조금 더 정교한 접근이 필요할 것으로 판단된다. 첫째, 그 전제로서 강행규범이 형성되는 방식 및 그 효과에 대한 일반론을 보다 정교하게 살펴볼 필요가 있다. 둘째, 이러한 검토를 전제로 하여 일괄보상협정과 국제법상 강행규범과의 관계를 다각도로 검토할 필요가 있다. 우선 “강행규범 위반에 따른 손해배상청구권”을 보장하는 규범 그 자체가 국제법상 강행규범을 구성하는지를 검토해볼 필요가 있다. 강행규범을 보호가치를 중심으로 관념한다면, 강행규범 위반으로 인해 가치가 훼손되었을 때 야기되는 손해를 전보할 의무 역시 그 강행규범이 요청하는 필수적인 부분이라는 논리도 전개해볼 수 있다. 반면 강행규범을 그 효과를 중심으로 관념하는 견해에 의한다면, 손해배상에 관한 국제법규들에 (실체적 금지규범과는 별도로) 이탈불가능성이라는 특성이 내재되어 있는지를 별도로 검토하여야 할 것이다. 그렇지 않다면 강행규범 위반으로부터 야기되는 국가책임에 관한 2차규칙들, 내지는 강행규범의 내용을 이루는 여타 국제인권법 규범으로부터 일괄보상협정의 내용을 통제할 방법은 없는지에 대해 검토해볼 필요가 있다. 본고에서는 특히 인권의 본질을 침해하지 아니할 의무, 그리고 국가의 기본적인 인권보호의무로부터 일정한 통제규범을 도출하려 시도할 것이다.

Uncertain Future and Prospects of the Prespa Agreement between Macedonia and Greece

In the present article we discuss the future and prospects of the Prespa Agreement, concluded on June 17, 2018, between Macedonia and Greece aiming at resolving their “difference” over the name of Macedonia. The analysis is carried out by examining the legal aspects of United Nations Security Council Resolution 817 (1993) recommending the admission of Macedonia to UN membership but imposing on the applicant a provisional name (pending the settlement of difference over the applicant’s name), in particular its legal consistence with the provisions of Vienna Convention on the Law of Treaties (1969) and with the general jus cogens norms of International Law enshrined in the UN Charter. It is concluded that the UN SC Res.817 (1993) is by itself an ultra vires act and cannot serve as a legal basis for the Prespa Agreement (ex injuria jus not oritur), that the Prespa Agreement violates the provisions of the Vienna Convention on the Law of Treaties and the peremptory norms of International Law, particularly the principle of self-determination and enters into legal matters that belong stricto sensu to the domain of domestic jurisdiction of Macedonia. For these reasons the Prespa Agreement cannot be considered a legally valid treaty and, consequently, and Agreement can be subject of unilateral termination under provisions of Vienna Convention on the Law of Treaties (1969).

Jus Cogens Versus the Chapter VII Powers of the Security Council: With Particular References to Humanitarian Intervention and Terrorism

Abstract The idea of the hierarchical superiority of jus cogens norms in relation to all other norms or actions has gained track. Hence, today, the widely held view is that even decisions of the Security Council cannot contravene imperative norms. This runs counter to the indispensable powers of this organ to do whatever it takes to maintain peace. The argument is that the Security Council can, in the face of a threat or breach of peace, one that, in extremis, has the potential to eradicate the human race, take or authorise necessary action even if this action collides with jus cogens. Such decisions of the Security Council may target every single world entity or individual. Moreover, the world peace body can also legislate and create peremptory norms that are binding upon the whole world. This Article fleshes out the constitutional framework in which the exercise of these powers should be understood and uses as illustrations the old alleged right of humanitarian intervention and the new jus cogens crime of terrorism.

Territorial integrity, political independence, and consent: the limitations of military assistance on request under the prohibition of force

ABSTRACT This article builds upon previous research by the author into the mechanics and interpretation of Article 2(4) of the UN Charter, which sought to explain the apparent contradiction between the status of the prohibition as a non-derogable norm of jus cogens and its well-recognised ‘exceptions’. Turning to the role of state consent within the prohibition, this article explores the scope and limits of a state’s ability to consent to the use of force within its territory – for example, by requesting military assistance in the context of a civil war – in light of this mechanical interpretation. Ultimately, this article argues that the prohibition of force still applies where a state consents or requests military assistance, because the principles of territorial integrity and political independence, alongside the ‘purposes of the United Nations’, can still prohibit some forms of military force even where consent has been given by the state concerned.

Jus Cogens: A Complex Case of Constitutional Reasoning in International Law

Article 53 of the Vienna Convention on the Law of Treaties famously introduced a special class of international legal rules - jus cogens norms - without specifying its content. The paper proceeds by adopting the heuristic framework of constitutionalization of international law, arguing that jus cogens norms contribute to at least two constitutionalist functions - that of limiting the international governance and hierarchizing international legal order. Hence, it is possible to argue that jus cogens reasoning is a specific type of constitutional reasoning. Despite stipulated formal qualities of jus cogens norms, in trying to establish their content state actors are in the situation similar to constitutional adjudicators dealing with underdetermined legal content of a constitutional text. What directs the process of jus cogens reasoning is, thus, the particular nature of the subject-matter with which those norms deal. The last part of the paper provides the analytical reconstruction of the jus cogens constitutional reasoning, focusing on the process of ascertainment, which is to be taken by the community of states. It is argued that what ascertainment requires is, inter alia, resorting to a unique interpretative tool - reverse teleological argument - with the use of which the state actor can extract from the fundamental values of international legal order a class of peremptory norms of international law.

Identification Criteria of Jus Cogens Norms in International Law

The article examines the positions of leading scholars on the identification of imperative norms of international law, discusses critical remarks that focus primarily on the difficulties connected with such identification. Trying to codify the concept of jus cogens in international law, the Commission itself acknowledged that the wording of the article was not so straightforward as there was no simple criterion by which a general rule of international law could be defined as having the character of jus cogens. Moreover, most of the general rules of international law are not of this nature, and therefore States can evade them by concluding treaties. Having considered the general definition of jus cogens in the Vienna Convention, it can be argued that the rule of international law can be ‘raised’ to the status of the rule of jus cogens – the imperative rule of international law – if the latter meets all the criteria. An important criterion worth noting is that imperative rules protect the interests of the whole international community: all imperative rules protect the interests of community, but not all public interests will be protected by the rules of jus cogens. The next criterion, closely related to the previous one, is that jus cogens rules protect the most fundamental ethical values of the international community, and one more – the absolute nature of the norm. But, in fact, the jus cogens category itself has more authority than its specific content. Despite the fact that none of the documents contains a comprehensive list of rules that should be considered imperative, the article provides a preliminary classification of non-derogation rules in order to illustrate some of the most obvious and applicable jus cogens norms for indicating in these examples the general nature and scope of the rule contained in Article 53. Key words: jus cogens norms; imperative norms; international law.

ПРАВОВІ ОСНОВИ МІЖНАРОДНОГО СПІВРОБІТНИЦТВА МВС ТА ENFSI

The article considers the principles of the Expert Service of the Ministry of Internal Affairs of Ukraine and the tasks of international cooperation, including establishing relations with law enforcement agencies, forensic institutions, etc. of other states and their international associations, participation in international organizations to pay membership fees and their use within competences of the relevant information databases of public authorities, the state, including government, communication and communication systems of the Ministry of Internal Affairs, other technical means and networks. The main normative legal acts regulating the international activity of expert institutions are given. The basic rights of the Expert Service of the Ministry of Internal Affairs of Ukraine in the field of international cooperation are highlighted. It is emphasized that the basis of cooperation is the principle of cooperation between states, which is the norm of jus cogens (indisputable law, firm law) enshrined in the UN Charter. The main structural parts of ENFSI (The Quality & Competence Committee, The European Academy of Forensic Science, The Expert Working Group Committee) and their areas of work are considered. The legal basis on which international cooperation takes place is highlighted. The main promising areas of further cooperation of the Expert Service of the Ministry of Internal Affairs of Ukraine with ENFSI are presented, including recognition of the results of Ukrainian forensic experts by international and / or foreign courts, proper control over the quality of forensic examinations in accordance with international requirements, involvement of Ukrainian forensic experts, the use of global and European expert methods in conducting forensic examinations, ensuring international standards of judicial activity, constant monitoring of the latest developments, methods and equipment to improve the efficiency of forensic experts, exchange of expertise with colleagues, implementation of world best practices in forensic practice Ministry of Internal Affairs of Ukraine. The main advantages of Ukraine's membership in ENFSI are presented.

Name It While You Shame It: An Assessment of Iraq’s Legal Response to Da’esh Crimes.

Since Da’esh’ takeover of Mosul in 2014, discussions emerged both domestically and internationally on the legal framework within which affiliates of the terrorist group should be prosecuted for their perpetrated atrocities. By the time the UNITAD mechanism to promote accountability for crimes committed by the Islamic State in Iraq and the Levant (Da’esh) was established in 2017, the Iraqi judiciary has processed, and is continuously processing the prosecution of thousands of affiliated perpetrators, both nationals and foreign fighters of Da’esh. Despite horrendous crimes committed by the terrorist group credibly amount to core international crimes, perpetrators are nevertheless prosecuted mainly on charges of terrorism, pursuant to ordinary criminal legislations. This paper assesses the legal and judicial response to Da’esh’s crimes committed on Iraq’s territory. The first part studies the nature of crimes committed by Da’esh, establishing that they amount to core international crimes and violations of Jus cogens norms of international law. Pursuantly, it situates Iraq’s legal obligations under international law. The second part examines the capacity of Iraq’s legislative framework to prosecute crimes perpetrated by Da’esh, thus identifying its deficiency to prosecute international crimes. It essentially problematizes Iraq’s prosecution of international crimes as ordinary crimes and exposes the significance of prosecuting atrocities committed by Da’esh in a comprehensive transitional justice context. It purports to argue that Iraq’s refraining from naming the crimes committed by Da’esh as appropriate and shaming them accordingly is enduringly detrimental to the Iraqi judiciary, and to the evolution of national and international criminal law and jurisprudence. The last part examines the prospects of post-Da’esh justice framework within the Iraqi legal system, along with the support of UNITAD and in accordance with international criminal law and transitional justice necessities. If carefully established and engineered, international investigative mechanisms assisting national prosecutions of international crimes could be the new norm of adequate responses to international crimes. The paper therefore proposes a legal framework pursuant to which Iraq could assume its international legal responsibility of prosecuting international crimes in national courts, thus leading a model of national response to international crimes, with the support of UN mechanisms.

Postcolonial Liquidation of Residues of Unfinished Decolonization ‒ Review of the ICJ’s Advisory Opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 ‒

In the 21st century, the right of peoples to self-determination is firmly established as a norm of jus cogens under customary international law. Can the colonial rule be tolerated from the standpoint of the right of peoples to self-determination when a colonial ruler continues to exercise its administration of a part of the colonial territories by detaching it from the rest right before their independence in the 20th century of decolonization despite the world already is in the era of post-colonization? In international politics, this question may be interpreted as international liquidation of past that resolves, after a long time, a failed task due to the incomplete implementation of decolonization. In international law, it may be a matter of transitional justice, where development of history and changes in law are interrelated. In the Chagos Archipelago, the International Court of Justice (ICJ) reviewed the lawfulness of the continued administration by the United Kingdom of the Chagos Archipelago. The challenge facing the Court in this case is to choose between two conflicting values: the value of legal stability, which is the application of rules with definitive content at a given time; and the value of legal rationality to accommodate structural changes to legal issues of historical character. In this case, the Court could be understood to take the legal reasoning of applying the findings and holdings of applicable law, which appears to take the latter approach. First, the Court adopted an evolutionary approach that embraces the “evolution of the law” in determining applicable law. Second, the Court deduced the obligation to respect territorial integrity of a colonial country from the concept of the right to self-determination that is easier to prove general practice. The Court has identified and applied customary international law in a manner appropriate to derive the rights of colonial peoples to self-determination and the obligation of territorial integrity by colonial rulers as its corollary. First it interpreted State’s act of adopting resolution as State practice so that the type of State practice that underlies the general practice of self-determination can be expanded. Second, in finding established general practice of the States, the Court took multilateral approach which is more appropriate in making the majority countries obligate minorities, instead of the traditional State-centered consensus-based approach. Third, it avoided officially dealing with the rule of persistent objector, which is a safeguard for minority countries against the majority-generated customary international law. The Court s approach in this case has resulted in the identification and application of laws at the international level to realizing transitional justice. At the same time, however, it caused partial lessening of the standards and procedures in confirming customary international law.

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

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.

State immunity or State impunity in cases of violations of human rights recognised as jus cogens norms

ABSTRACT State immunity is an inalienable concept in international law designed to prevent abuses of inter-State relations; on the other hand, state immunity removes the threat to the State of being forced to face justice for its sovereign acts as it relates to the most serious of human rights abuses. For these reasons, the granting of immunities to the State may lead to impunity from jurisdiction in cases in which certain human rights recognised as peremptory norm of general international law (jus cogens) have been violated. This article analyses the tension between the violation of certain human rights and the preservation of State immunity by considering a landmark judgment by the International Court of Justice (Jurisdictional Immunities of the State – Germany v Italy). At the heart of this article lies a significant argument: State immunity (procedural rule) should not equate to State impunity when certain human rights recognised as jus cogens norms (substantive rule) are violated. It also highlights some exceptions to immunity ratione materiae against the backdrop of violations of jus cogens norms by applying State practices in order to support the criticism of the ICJ judgment and that the claim of immunity does not equal to impunity.

The status of customary international law under the Nigerian legal system

The status of customary international law, unlike treaties, has not been seriously addressed under the Nigerian legal system. This article therefore examines the status of customary international law in the Nigerian legal system. The article adopts a comparative approach and creates new norms from the existing ones which apply to treaties. The article finds that the common law ‘incorporates’ customary international law into the Nigerian legal system but what incorporation means, how it is done and by whom it is done is fraught with serious misunderstandings. The article therefore argues that customary international law should be regarded as law having effect as if so enacted by the law making organs in Nigeria. With this, the article recognizes customary international law in its common character and as a norm of jus cogens and maintains that they constitute federal ‘law’. As a norm of jus cogens, it is inferior to the Nigerian Constitution but superior to an Act whether implementing a treaty or not. Customary international law in its common character maintains a coordinate status with any Act implementing a treaty but superior to an Act not implementing a treaty. However, customary international law can be expressly negatived by an Act. Customary international law whether in its common character or as a norm of jus cogens is superior to state Law, common law, African customary law, administrative rule and an executive order. The article concludes that with globalization, customary international law may be a veritable source of law in Nigeria.

Zaštita temeljnih ljudskih prava pred međunarodnim investicijskim arbitražama kroz poseban osvrt na pravo na vodu

The concept of human rights penetrates into all spheres of law, acting as a protective mechanism against the abuse of rights by States and other entities. Human rights are a counterweight to the development of the neoliberal expansionism, embodied in the regime of foreign investment protection through international investment contracts. When states enter into such contracts, they bring along the previous commitments, in particular the obligation of protecting human rights. However, this obligation is not merely the result of existing international treaties because states are also obliged to to respect the higher rank norms of international law (jus cogens norms), which include the fundamental human rights, concentrated around the right to life. In such a legal framework, there is a notable increasing conflict between the protection of foreign investors' rights in international investment disputes and the protection of fundamental human rights. The right to water, as an indirect right to life, is a special indicator of this conflict in the practice of international investment tribunals. The issue of supremacy of rights is raised, particularly concerning the question which obligations have priority under international law: the protection of foreign investments or the protection of fundamental human rights, and especially the right to water? The hitherto practice of international investment tribunals is diverse and inconsistent in this regard; as such, it does not provide a clear answer to this key question.

Historical Overview of Jus Cogens Norms, Their Applicability by International Courts and Necessity for Unification

The principal aim of this paper is the need for standardization of jus cogens norms, which besides their definition by the Vienna Convention on the Law of Treaties have been further developed by international courts. The paper is divided in four parts that include the characterization of jus cogens norms, their development in the early history of international law, the development of these norms by international and regional courts and ends with the need of unification of jus cogens norms. A general conclusion thus can be drawn. The international courts, in order not to become inclined to use controversial terms of jus cogens norms, necessitate for a harmonized system and standardization of these norms in order to further develop jus cogens norms. Thus, the fulfillment of these norms through standardization allows us to think that one day all international wrongful acts will become at some point world-wide derogatory. Šī raksta galvenais mērķis ir vajadzība standartizēt jus cogens normas, kuras papildus to definīcijai Vīnes konvencijā par starptautisko līgumu tiesībām ir tālāk attīstījušas starptautiskās tiesas. Šis raksts ir sadalīts četrās daļās, kas ietver jus cogens normu raksturošanu, to attīstību starptautisko tiesību agrākajā vēsturē, šo normu izstrādi starptautiskajās un reģionālajās tiesās un noslēgumā – nepieciešamību unificēt jus cogens normas. Raksta noslēgumā iespējams izteikt galvenos secinājumus par analizēto jautājumu. Starptautiskās tiesas, lai nebūtu spiestas izmantot pretrunīgus jus cogens normu terminus, ir aktualizējušas nepieciešamību pēc vienotas sistēmas un šo normu unifikācijas / standartizācijas, lai turpinātu attīstīt jus cogens normas un to piemērošanu.

The widespread use of torture in Mexico and its impacts on the rule of law

ABSTRACTTorture is a widely diffused practice in Mexico, as has been reported for decades by civil society organisations, United Nations bodies and special procedures, and the National Human Rights Commission. Although torture has been used in various contexts, its use in criminal proceedings, as an ‘illegal’ method of criminal investigation to obtain confessions and incriminating statements, has been consistently denounced over the years. Encouraged by old court criteria, that translated into the lack of real judicial control, prosecutors have had no incentive to develop institutional capacities to investigate crimes on the basis of scientific evidence and excluding torture from their methods. Consequently, the possibility to develop institutional capacities to enforce the law according to human rights standards have been continuously undermined. With that in mind, the aim of this article is to analyse whether the systematic violation of the prohibition of torture (a jus cogens norm) by the Mexican State has had in impact on the rule of law, including in its substantive dimension, that is, the ‘democratic rule of law’.

Anti-Zionism, Jus Cogens, and International Law: The case of the Banjul Charter and Arab Charter

ABSTRACTThis article examines the legal and political implications of the anti-Zionism provisions in the 1981 African Charter on Human and Peoples’ Rights (Banjul Charter) and 2004 Arab Charter on Human Rights (Arab Charter), considering the International Law Commission’s current work on peremptory norms of general international law (jus cogens). The Banjul Charter and Arab Charter present what appear to be rare test cases of treaties that conflict with a jus cogens norm, which self-determination—in the case of the Banjul Charter and Arab Charter, this would be Zionism, which this article understands as Jewish self-determination—at least arguably is. This article has three parts. First, it sets forth the nature and parameters of jus cogens under international law, paying attention to the operation of these norms under international treaty law. It then examines the anti-Zionism provisions in the Banjul Charter and Arab Charter and explores their drafting history. Finally, on the assumption that self-determination qualifies as a jus cogens norm, this article applies the black letter law of jus cogens to the Banjul Charter and Arab Charter and looks at the political implications of the two treaties’ anti-Zionism provisions, whether or not self-determination qualifies as a jus cogens norm.