Jus Cogens Norms Research Articles

Apartheid, International Law, and the Occupied Palestinian Territory: A Reply to John Dugard and John Reynolds

I accept the authors' premise in their article entitled Apartheid, International Law, and the Occupied Palestinian Territory that apartheid, as practised in the former South African regime, remains today a crime against the law of nations applicable to states practising a similar regime. The obligation of a state and its officials to refrain from practising any policy of apartheid is considered a jus cogens norm under international law. Whoever practises apartheid bears international criminal responsibility and may be put on trial for committing that crime, either in any state in the world based on universal jurisdiction or before the International Criminal Court. However, the very gravity of the crime requires that accusations of apartheid be made with the greatest caution. The accusation that Israel practises apartheid against the Palestinian population in the West Bank, East Jerusalem, and Gaza is unfounded and based on gross errors. In this article I expand on two of these errors - the failure to differentiate between the norms governing occupied and sovereign territory, and the authors' complete failure to address Israel's policies in the context of an armed conflict characterized by the Palestinians' use of terror. As I show, once the authors' errors are exposed and considered, it is clear that Israel�s actions cannot be considered a basis for the crime of apartheid.

What a Pity! Sovereign Immunity, State Responsibility, and the Diminution of Accountability Under International Human Rights Law

Over the course of the past half century, some significant progress has been made in creating accountability mechanisms that have helped to serve human rights. Five are analyzed here: (1) the evolution of the European Court of Human Rights (ECHR), (2) Alien Tort Statute litigation, (3) universal jurisdiction, (4) the “terrorism” exception under US sovereign immunity law, and finally (5) the establishment of regional and international criminal tribunals. However, two related international law principles—sovereign immunity and state responsibility—stand squarely in the way of achieving greater human rights protection. This article analyzes an ECHR case (Al-Adsani v. United Kingdom) that could have changed much of this almost immediately. However, in an extraordinarily close (9–8) vote, the court upheld the principle of sovereign immunity—even when this serves to protect a state that engages in torture, which is a jus cogens norm. One of the dissenting judges in this case exclaimed: “What a pity!” But the missed opportunity to protect human rights is more than just a pity. Rather, it is contrary to why international human rights law exists in the first place. The article closes by calling for the use of much different standards for assigning state responsibility.

La sentenza della Corte internazionale di giustizia relativa al caso Germania c. Italia: profili di diritto intertemporale

The author comments on the judgment delivered by the ICJ on 3rd February 2012 in the case of Germany v. Italy, concerning jurisdictional immunity of the State against actions for compensation in respect of crimes committed during World War II. The article focuses on the intertemporal law aspects of the case, commenting that the ICJ, while correctly identifying State immunity rules as having a procedural nature, failed in clarifying that whenever their application requires a qualification of the relevant facts, this is to be performed pursuant to the law in force at the time they were committed. Arguably, at the time of the conflict, the category of jus cogens norms had not yet been sufficiently established, nor had a special regime of State responsibility for international crimes or for serious breaches of peremptory rules of general international law developed yet. Therefore, the supposed prevalence of the breached norms on State immunity rules, which the ICJ has correctly excluded due to the different nature of either set of rules, arguably was to be excluded for intertemporal reasons altogether.

Jus Cogens: Towards an International Common Good?

The nature of jus cogens has been an intellectual puzzle for international law academics to date. This article explores why an explanation of jus cogens lies beyond the formal sources of international law and cannot be reduced to either constitutional or public order explanations alone. It argues that jus cogens norms should instead be understood as shaped by the common good of the international community, and particularly as fundamental legal means for the international community to be able to achieve, or coordinate towards, this common good. If jus cogens norms are understood as arising from the normative commitments that states make by necessary implication for the achievement of the shared objectives and goods of the international community, then it becomes clearer why they would be both constitutive and public order in nature—supporting what Hersch Lauterpacht refers to as the reason for being of the international community.

Immunities of State Officials, International Crimes and Foreign Domestic Courts: A Rejoinder to Alexander Orakhelashvili

1 Introduction We are grateful to Alexander Orakhelashvili for engaging with the points we make in our recent EJIL article on immunity and international crimes. 1 He has written widely on this issue and his view that international law immunities are not available in judicial proceedings for violations of jus cogens norms is well known. In our article, we disagree with that view and show why that understanding of the relationship between jus cogens norms and international law immunities is untenable. However, it would be wrong to say, as he says, that we �attack� his views (or indeed those of others who share that same perspective). There is, we believe, a reasonable disagreement of view. As is well known, international law provides two types of immunity for state officials from the jurisdiction of foreign states. The first type are �status� immunities (�personal� immunities or immunities ratione personae) and the second is an �official act� immunity (�functional� immunity or immunity ratione materiae). In our view, international law confers two types of �status� immunity: the first type is limited to foreign heads of state and heads of government; it is absolute and applies even in cases alleging international crimes and even where the individual is abroad on private visit. The second type of immunity ratione personae applies only to those abroad on special mission (and therefore in the host state with its consent) and only for the duration of such mission. This special mission immunity is also applicable in cases concerning international crimes. However, we argue that the immunity ratione materiae which international law confers on those who perform official acts on behalf of the state will not be available in cases where the act amounts to an international law crime. This is not because international crimes may not be official acts, or indeed �

Crimini internazionali, immunitŕ degli Stati, giurisdizione italiana: il contenzioso italo-tedesco dinanzi alla Corte internazionale di giustizia

The Author deals with the dispute pending before the International Court of Justice (ICJ) between Germany and Italy regarding jurisdictional immunities enjoyed by foreign States in national proceedings relating to their civil liability for violation of norms of jus cogens. The Author highlights the position taken by the parties during and in relation to the proceedings (including the adoption of Italian Decree no. 63/2010) and criticizes the ICJ order declaring its lack of jurisdiction over the counterclaim introduced by Italy. Lastly, the Author suggests that the New York Convention on jurisdictional immunities of 2005 be ratified, although to implement it within the Italian legal system would require the adoption of ad hoc legislation (the so-called ordine di esecuzione being insufficient).

The Sources of International Human Rights Law and Their Application in the United States of America

Is the torture morally and legally justifiable in some cases? What is the relations between the Human Rights and the International Law? Is the International Law applied by the U.S. Courts? Can the Human Rights be considered jus cogens? What are the preemptive norms? Is the sentence less free but more safe true? These are some of the questions that this article tries to answer. This paper considers the sources of International Human Rights Law and their application by the Courts of the United States. Based on the recent decisions of different Courts and the Restatement (third) of the Foreign Relations law of the United States, the paper explains how the judges apply the Treaties and criticizes the self executing character as too strict described by the U.S. Supreme Court in Meddelin v. Texas .Further, the paper analyzes the concept of Customary International Law, its relation with Human Rights, and the different theories about the application of International Custom in U.S. Courts. The article argues that Customary International Law is federal Law of U.S., with the traditional theory of the Customary International Law. I think the needs to protect Human Rights and the fact that many national constitutions provides the automatic incorporation of customary international law caused the distortions of the definition of International Custom which is accepted by some scholars like a religious dogma. In my prospective, according to the Restatment and Schachter, only few Human Rights provisions can be retained Customary Law because in compliance with the two requirements: state practice and opinion juris.The most innovative part of the article is about the jus cogens, its definition and its content. Analyzing all the positions about it and its application by the Greek Aeropago and Italian Corte di Cassazione, the paper affirms the existence of jus cogens and rethinks its role in International Law. In particular, the paper answers to the three questions which Antony D’amato wrote in his article in which criticizes the concept of jus cogens: 1. What is the utility of a norm of jus cogens? 2. How does a purported norm of jus cogens arise? 3. Once one arises, how can international law change it or get rid of it?The conclusion is about the function of International Law and his role played in the defense of Human Rights. The paper argues that the principal purpose of International Law, in order to defend all the people and all the human beings, is avoiding this injection of hate in faithfulness bringing forth justice. That is settling common rules among the nations mainly through the agreement of the States but also through those norms essential for the pacific consistence of the people.

For Further Research on the Relationship between Cultural Diversity and International Criminal Law

AbstractUNESCO's Universal Declaration on Cultural Diversity sees cultural diversity as a source of creativity and progress. International criminal law can protect cultural diversity. However, the relationship between cultural diversity and international criminal law seems based on a paradox: everyone must respect cultural diversity, but no one may invoke it to violate international criminal law. On occasions, this paradox has been exposed to daylight in the practice of international criminal courts. For example, the Special Court for Sierra Leone held with regard to the practice of enlistment of child soldiers that it could not accept any cultural considerations as excuses for criminal conduct. Here we should note (i) that the prohibition of crimes under international law (genocide, crimes against humanity, war crimes, aggression) is generally accepted as belonging to the realm of jus cogens norms, i.e. norms from which no derogation is permitted, and (ii) UNESCO's Declaration aims at universality and not at uniformity.As international criminal law is intended to apply universally, it is vital that it takes cultural considerations on board. In this article the author reviews the literature available in the field, identifies some of the areas of international criminal law and procedure where problems with cultural diversity have been most conspicuous, and concludes that further research on the relationship between cultural diversity and international criminal law is needed.

Kiobel V. Royal Dutch Petroleum Co.: Corporate Liability Under the Alien Torts Statute

Kiobel v. Royal Dutch Petroleum Co., (2d. Cir.) overruled numerous 2d circuit decisions and contradicts sister federal appellate courts in other circuits, finding that corporate liability in international law is not a sufficiently specific norm to support a finding of liability under the Alien Tort Statute. That decision is clearly erroneous. Kiobel violates the general principle of legality, immunizing corporate conduct from liability even in cases where States would be liable for violating jus cogens norms and thus also violates the principle of sovereign equality of States due to principles of comity and res judicata. Kiobel also is an abnegation by the U.S. of U.S. obligations under international law. While no state is obliged to remedy jus cogens violations, each state is obliged to respect them. Because Kiobel reflects a deep and significant split at the circuit courts, because it concerns U.S. international legal obligations, because the stakes, in human and financial terms are high, because it was so obviously wrongly decided, the split that Kiobel represents will surely eventually reach the U.S. Supreme Court. This article explains precisely why the court's decision in Kiobel misapprehends the structure and sources of international law and consequently reaches the wrong result for the wrong reasons. The U.S. Supreme Court will likely conclude that the ATS governs jus cogens claims against natural and artificial persons without a showing of state action, but requires state action or complicity with state action otherwise.

Habeas Corpus as Jus Cogens in International Law

For hundreds of years procedural rights such as habeas corpus have been regarded as fundamental in the Anglo-American system of jurisprudence. In contemporary international law, fundamental norms are called jus cogens. Jus cogens norms are rights or rules that can not be derogated even by treaty. In the list that is often given, jus cogens norms include norms against aggression, apartheid, slavery, and genocide. All of the members of this list are substantive rights. In this paper I will argue that some procedural rights, crucial for the fair functioning of criminal proceedings, such as habeas corpus, should also have the status of jus cogens norms. I will begin by explaining what it means for a right to have jus cogens status. And I will follow this with a defense of having procedural rights like habeas corpus added to the list of jus cogens norms. I will then rehearse some of the debates about the jus cogens status of procedural rights in the European Commission on Human Rights. At the end of this paper, I will look at the attempts to deal with the abuses at Guantanamo by the American Commission on Human Rights, and by the US and Australian courts, as a way to understand why there needs to be a stronger support for habeas corpus than is today provided by regional courts.

The Sources of International Human Rights and their Application in U.S.

Is the torture morally and legally justifiable in some cases? What is the relations between the Human Rights and the International Law? Is the International Law applied by the U.S. Courts? Can the Human Rights be considered jus cogens? What are the preemptive norms? Is the sentence “less free but more safe” true? These are some of the questions that this article tries to answer. This paper considers the sources of International Human Rights Law and their application by the Courts of the United States. Based on the recent decisions of different Courts and the Restatement (third) of the Foreign Relations law of the United States, the paper explains how the judges apply the Treaties and criticizes the “self executing” character as too strict described by the U.S. Supreme Court in Meddelin v. Texas .Further, the paper analyzes the concept of Customary International Law, its relation with Human Rights, and the different theories about the application of International Custom in U.S. Court. The article argues that Customary International Law is federal Law of U.S., with the traditional theory of the Customary International Law. I think the needs to protect Human Rights and the fact that many national constitutions provides the automatic incorporation of customary international law caused the distortions of the definition of International Custom which is accepted by some scholars like a religious dogma. In my prospective, according to the Restatment and Schachter, only few Human Rights provisions can be retained Customary Law because in compliance with the two requirements: state practice and opinion juris.The most innovative part of the article is about the jus cogens, its definition and its content. Analyzing all the positions about it and its application by the Greek Aeropago and Italian Corte di Cassazione, the paper affirms the existence of jus cogens and rethinks its role in International Law. In particular, the paper answers to the three questions which Antony D’amato wrote in his article in which criticizes the concept of jus cogens: 1. What is the utility of a norm of jus cogens? 2. How does a purported norm of jus cogens arise? 3. Once one arises, how can international law change it or get rid of it?The conclusion is about the function of International Law and his role played in the defense of Human Rights. The paper argues that the principal purpose of International Law, in order to defend all the people and all the human beings, is avoiding this “injection of hate” in faithfulness bringing forth justice. That is settling common rules among the nations mainly through the agreement of the States but also through those norms essential for the pacific consistence of the people.

IMUNITAS NEGARA ASING DI DEPAN PENGADILAN NASIONAL DALAM KASUS PELANGGARAN HAM YANG BERAT KONSEKUENSI HUKUM JUS COGENS TERHADAP IMUNITAS NEGARA

Gross violation on human right has been occurred at many countries. Almost all of the perpetrators are state .In international law foreign state has immunity before national court. Developing of international law showed that in one side gross violation on human right is prohibited and has a status as jus cogens, peremptory nom under international law. However foreign state immunity before national court is fundamental right. International law doesn’t strictly and clearly governed legal consequences jus cogens norm over gross violation on human right. Some of national court remaining recognized state immunity to foreign state with some legal reason. However others national court denied that immunity. Key words : law’s consequences, state’s immunity, the International law

The Utility of Regional Jus Cogens in International Law

This article examines a regionalised set of international legal norms and values, and expunges whether they can be reconstituted as regional jus cogens norms. An analysis of the Brezhnev Doctrine, juvenile executions in the Americas, and Islamic human rights will be instructive in this manner. The practical utility of regional jus cogens norms will also be highlighted. Steeped in a positivist stance, the article suggests that a set of higher laws of overriding importance can assist in accomplishing certain political tasks that are deemed acceptable within a specific time-period by a group of nation-states. Moreover, regional jus cogens norms can be replaced by another super-norm, or eliminated entirely by the passing of their usefulness. The implications for the existence and practice of regional jus cogens norms will be considered, notably their effect on sovereign equality and the promotion of differential treatment. Given a current international community of nation-states characterized by unprecedented heterogeneity, this article will argue that the use of regional jus cogens norms are demanded in limited situations.

Using International Law to By-pass Domestic Legal Hurdles: On the Applicability of the Statute of Limitations in the Menendez et al. Case

Thirty-one years after committing their crimes, General Menendez and seven other represores were sentenced by an Argentinean Federal Tribunal to prison terms ranging from 18 years to life in prison for the kidnapping, torture and murder of four members of a political opposition group. The crimes were committed as part of a widespread and systematic attack against those opposed to the military regime that ruled Argentina from 1976 to 1983. According to national legislation, however, they should have been shielded from prosecution by the statute of limitations found in Article 62 of the Penal Code. To circumvent this procedural hurdle in domestic law, the Tribunal relied upon international criminal law, describing the offences as crimes against humanity, maintaining that the statute of limitations did not apply to such crimes, and then proceeded to sentence the accused exclusively for domestic crimes. After a concise summary of the facts of the case, the following paper shall, first, review the use of international law by the Tribunal, pointing out certain inaccuracies in the application of international criminal law notions to handle domestic offences. This will be followed by a comment on the Tribunal's arguments regarding the non-applicability of the statute of limitations, in particular concerning its approach to jus cogens norms. Finally, this article presents the Tribunal's use of domestic law to reach its verdict, and questions whether using international law as a tool to by-pass domestic procedural hurdles could ultimately hinder the international struggle to end impunity.

Expulsion to Face Torture? Non-refoulement in International Law

Non-refoulement is a principle of international law that precludes states from returning a person to a place where he or she might be tortured or face persecution. The principle, codified in Article 33 of the 1951 Refugee Convention, is subject to a number of exceptions. This article examines the status of non-refoulement in international law in respect to three key areas: refugee law, human rights law and international customary law. The findings suggest that while a prohibition on refoulement is part of international human rights law and international customary law, the evidence that non-refoulement has acquired the status of a jus cogens norm is less than convincing.

Fear and Loathing in Jus Cogens

We were somewhere around custom on the edge of the convention when the doctrine began to take hold.1 The purpose of this essay is to take a Hunter S. Thompson-like journey to the heart of international law, to circumvent the banality of the discipline-a place that is viciously overcrowded...where almost everybody seems vaguely happy2-and ascend the discipline's heights in search of norms that have profound meaning. Despite the attractiveness of seeking to remedy breaches of the most fundamental global rules, the trek may be a frustrating one. As will be seen, the unyielding proliferation of arguments has at times threatened to reduce the international legal world to one in which there is not much left except..., well, fill in the blank.3In its 2005 decision in the Bouzari case,4 the Ontario Court of Appeal stated categorically that the prohibition against torture has become a rule of cogens-a peremptory norm of international law that sits at the apex of the law's hierarchy. Likewise, in its National strategy for combating the US executive branch declared that violence against civilians is today viewed in the same light as slavery, piracy, or genocide: behavior that no respectable government can condone or support and all must oppose.5 Together, these abuses form the worst of contemporary human rights violations, joining a rarified-if growing-club of abuses that are universally condemned as beyond the pale of legally acceptable conduct in a world notoriously few universal rules. Like the sexual enslavement of women, the execution of children, and other unfathomable crimes, the twin evils of torture and terrorism have each become a jus cogens norm, [or] a proscription [that] binds the community of States.15It takes little imagination for international lawyers to perceive a benefit to the project of expanding the category of cogens. It is at once a compelling psychological association of normative superiority universality,7 leading to non-derogable obligations of states to refrain from the preempted conduct and, in addition, to extradite and/or punish those who engage in it.8 On the other hand, when it comes to civil remedies for Canadians who suffer torture or terrorism, the cogens label appears as to be, as one commentator has dubbed it in a famously cynical essay, a rhetorical device with no substantive content; ...merely an insubstantial image of a norm, lacking flesh and blood.9 The purpose of this article is to investigate that perplexing state of affairs. How can it be that torture and terrorism fit the bill for the worst possible international law violations, but in Canada, its tradition of proud adherence to advances in the field of human rights and its leading role in humanitarian legal developments both within and without international institutions, the category of cogenshas been rendered meaningless for the victims of these transgressions?The problem, of course, is that in international law, as elsewhere, one can have too much of a good thing. The doctrine of cogens is no exception to the rule of embarrassment of riches, civil rights such as gender equality and even contentious norms such as the right to food falling under its expanding girth.10 In a way that is reminiscent of a subject matter in a gonzo journalism tract, the nature of cogens has gotten lost in the swirl of debate around it. In writing about the doctrine, one is tempted to do as Hunter S. Thompson did in covering the car race that is the ostensible subject of his most renowned book, Fear and Loathing in Las Vegas:But first we need the car. And after that, the cocaine. And then the tape recorder, for special music, and some Acapulco shirts. The only way to prepare for a trip like this was to dress up like human peacocks and get crazy, then screech off across the desert and cover the story.11As arguments and counter-arguments circle around the barren terrain leading to cogens, it seems evident that one must keep moving the momentum of international rhetoric. …

Nihil Novum Sub Sole Since the South West Africa Cases? On Ius Standi, the ICJ and Community Interests

AbstractThe Democratic Republic of the Congo v Rwanda Judgement of 3rd February 2006 marked the first occasion in which the International Court of Justice expressly pronounced on the jus cogens character of a norm of international law. The Court did also expressly extend, for the first time, the scope of the principle of consensual jurisdiction to cover the relationship between peremptory norms of general international law and the establishment of the Court's jurisdiction. Against this backdrop, this piece revisits some of the main ICJ milestones regarding community interests in light of recent doctrine on the question of ius standi in disputes involving obligations erga omnes and jus cogens norms. It does so in order to examine the main alternatives put forward by the doctrine to circumvent the requirement of state consent for the protection of community interests by jurisdictional means at the international level.

The Effect of Jus Cogens Norms: Whoever Opened Pandora's Box, Did You Ever Think About the Consequences?

This article forms a contribution to the ongoing scholarly debate on the possible effect of jus cogens norms. For the purpose of the article, it is assumed that peremptory norms certainly exist in positive international law. According to the argument, even if we limit the effects of jus cogens norms to those described in the 1969 Vienna Convention, the jus cogens concept takes us farther than most commentators seem to realize. This is due partly to the power potential invested in the jus cogens concept, partly to the intricate structure typical of legal norms. In fact, as argued in this article, if we take the existence of peremptory international law to its logical consequence, it will carry too far: most actors on the international arena will consider the effects unacceptable. Using asan example the jus cogens norm most often referred to in the literature – the principle of non-use of force – it is a purpose of the present article to establish this proposition as valid. A second purpose is to attract attention to what appears to be the really crucial question for further discussion: How should the effects of jus cogens be limited? Whoever opened the Pandora’s Box that once contained the jus cogens concept obviously did not fully realize the consequences that this would have for international law in general. Howcan this situation be remedied? (Less)

Immunity for Torture: Lessons from Bouzari v. Iran

This article assesses the implications of the Canadian case of Bouzari v. Islamic Republic of Iran in which sovereign immunity barred recovery against a foreign state for acts of torture. Part 2 describes the case and the courts ' rejection of arguments centred on the hierarchy of jus cogens norms, implied waiver and common law principles. Part 3 evaluates parallel develop- ments in the United States and demonstrates the commonalities and differences associated with efforts to overcome immunity in the two countries. Part 4 examines potential amend- ments to Canada's State Immunity Act with a view to balancing considerations of comity with a just and workable means of holding states accountable for grave human rights abuses.

International prosecution of human rights crimes

Fundamental Questions.- Protection of Human Rights by Means of Criminal Law: On the Relationship between Criminal Law and Politics.- Global Constitutional Struggles: Human Rights between colere publique and colere politique.- The Future of Universal Jurisdiction.- On the Aims and Actual Consequences of International Prosecution of Human Rights Crimes.- Developments in Law and Practice.- Prosecuting International Crimes at the National and International Level: Between Justice and Realpolitik.- Addressing the Relationship between State Immunity and Jus Cogens Norms: A Comparative Assessment.- Universal Jurisdiction: Developing and Implementing an Effective Global Strategy.- German International Criminal Law in Practice: From Leipzig to Karlsruhe.- The Pinochet Effect and the Spanish Contribution to Universal Jurisdiction.- Implementing the Principle of Universal Jurisdiction in France.- The Political Funeral Procession for the Belgian UJ Statute.- The Approach of the United Kingdom to Crimes under International Law: The Application of Extraterritorial Jurisdiction.- Coming to Terms with Genocide in Rwanda: The Role of International and National Justice.- The War on Terror in Particular.- Military Necessity, Torture, and the Criminality of Lawyers.- The Prohibition of Torture: Absolute Means Absolute.- Litigating Guantanamo.- Universality, Complementarity, and the Duty to Prosecute Crimes Under International Law in Germany.