Peremptory Norms Research Articles

Anniversary Commemoration and Work of the International Law Commission's Seventieth Session

This essay analyzes the outcome of the seventieth session of the U.N. International Law Commission held in the summer of 2018 in New York and Geneva. Notably, the Commission completed on second reading two topics: subsequent agreements and subsequent practice in relation to the interpretation of treaties; and identification of customary international law. The Commission completed on first reading two further topics: protection of the atmosphere; and provisional application of treaties. Progress was also made in developing draft conclusions on peremptory norms of general international law (jus cogens), draft principles on protection of the environment in relation to armed conflict, and draft articles on succession of states in respect of state responsibility. The Commission commenced a debate but otherwise did not make progress with respect to its topic on the immunity of state officials from foreign criminal jurisdiction. The Commission, however, added a new topic to its agenda on general principles of law, and added two new topics to its long-term work program, namely on universal criminal jurisdiction and sea-level rise in relation to international law. The Commission did not work on a topic that completed its first reading in 2017 and that, after receiving reactions from governments and others, will likely undergo its second reading in 2019: crimes against humanity.

Legality of the Prespa Agreement Between Macedonia and Greece

In the present article we examine the legality 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 of the legal validity of Prespa Agreement is carried out by examining the legal basis 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), its legal consistence with the provisions of Vienna Convention on the Law of Treaties (1969) and legality with the general <i>jus cogens</i> norms of International Law enshrined in the UN Charter. It is demonstrated that the UN SC Res.817 (1993) is by itself an <i>ultra vires</i> act and cannot serve as a legal basis for the Prespa Agreement (<i>ex injuria jus not oritur</i>), that the Prespa Agreement violates the provisions of the Vienna Convention on the Law of Treaties (1969) and the peremptory norms of International Law, particularly the principle of <i>self-determination</i> and enters into legal matters that belong <i>stricto sensu</i> to the domain of domestic jurisdiction of Macedonia. For these reasons the Prespa Agreement cannot be considered a legally valid treaty and, consequently, it is null and void.

A CRITIQUE OF THE DEMISE OF HEADS OF STATE IMMUNITY IN THE AGE OF HUMAN RIGHTS

This paper presents an unspoken aspect of Head of State immunity, namely that such immunity is at odds with the expectation that international law should be applied to challenge resistance to and promote respect for human rights. It considers the question of whether Head of State immunity gives rise to de facto impunity in the case of violations of human rights recognised as peremptory norms (jus cogens) committed by such Heads of State. While this paper emphasises the critical role of Head of State immunity in the context of international relations, it argues that Heads of State should not exempt from punishment when violations of those human rights are at stake.

Procurement from the Sole Supplier

Along with the Federal Law No. 44-FZ of April 5, 2013, "On the contract system in the sphere of procurement of goods, works and services to provide state and municipal needs" that regulates the procurement of wholly state-owned budget companies, the Federal Law of July18, 2011, № 223-FZ "On the procurement of goods, works, services by legal entities of certain types" regulating procurement of state-owned companies with state participation came into force on January 2, 2012, to meet state municipal needs. Having established only a number of peremptory norms, the legislator in Law No. 223-FZ limited himself to specifying general principles and objectives for performing such procurements, implying that buyers will independently regulate procurement issues in procurement clauses. The author concludes that the arguments that prompted the legislator to create only a framework law, have caused new problems associated with inefficient spending of funds when concluding a number of contracts with a single supplier (contructor, subcontractor).

Securitisation, non-refoulement and the rule of law in Kenya: the case of Somali refugees

ABSTRACTThis article adopts the securitisation theory to examine the relationship among securitisation, non-refoulement, a peremptory norm, and the rule of law in Kenya. The arguments raised are that Somali refugees and refugee camps predominantly occupied by Somalis are falsely, in blanket fashion, socially constructed as abetting terrorism hence existential threats to national security so that the state can prioritise the implementation of refoulement, a norm-violating counterterrorism measure. The rights of Somali refugees and rule of law have been violated in the context of legality and legal certainty, discretionary powers, equality before the law and non-discrimination. It is only with regard to access to justice that the rights of Somali refugees have been protected under both domestic and international law. Kenya has, therefore, derogated from the doctrine of non-refoulement hence violating the rule of law domestically and internationally. The conclusion offers ways of mitigating the adverse effects of securitisation on non-refoulement and the rule of law.

OS FUNDAMENTOS DO JUS COGENS INTERNACIONAL

O artigo enfoca as teorias justificadoras do jus cogens internacional, especificamente as mais conhecidas internacional: a jusnaturalista, a juspositivista, a da ordem pública internacional e outras de aspecto sociológico. Não tencionamos propor solução para o problema maior de quais seriam os exatos contornos do direito cogente ou de seu processo nomogenético – isto é, a questão de por que uma norma ordinária de Direito Internacional seria alçada (ou mereceria ser alçada) à qualidade de norma peremptória. Contentamo-nos em expor as limitações de cada uma das fundamentações, com destaque para a juspositivista. A proposta por nós avançada é que essas diferentes óticas fundamentadoras muito teriam a ganhar se dialogassem entre si.

International order, the rule of law, and US departures from refugee protection

ABSTRACTCompliance with international human rights norms and respect for the rule of law are mutually sustaining pillars of a liberal international order. State behaviours undermining customary and jus cogens legal norms are exceptionally disruptive to possibilities of global justice. This article posits that non-refoulement and a responsibility to protect refugees are connected to universally binding and peremptory norms in important ways such that state violations of these principles undermine the premises of international legal order. The article focuses on US norm violations in these areas, contextualising policy changes under the Trump administration within previous US departures from refugee protection principles. Given the position of the United States as a hegemonic and democratic actor in the international system, the article argues that US actions contra non-refoulement and efforts to shirk refugee responsibility-sharing in the wake of jus cogens crimes are particularly damaging to the foundations of global human rights governance and attendant notions of legitimacy and the rule of law.

Economic, Social and Cultural Human Rights: The Journey towards Peremptory Norms in International Law

ABSTRACTThe past 50 years of national effort and international cooperation have produced a mixed legacy of unequal enjoyment of economic, social and cultural (ESC) rights. Despite a wide framework of national, regional and international ­­norms and mechanisms for observance of ESC rights and obligations, a systemic tendency disconnects ESC rights from economic and financial decisions necessary for their realisation. To be truly effective, the ‘customary core’ of minimum ESC rights obligations should play a priority role in the economic and financial decision-making of states, international institutions and non-state actors. While this core has not now reached the status of peremptory norms, the duty of international cooperation to realize human rights requires transnational coordination that gives priority to core ESC rights obligations in economic, financial and development policies and operations. Action in three areas is needed: first, building a common approach to ‘core’ content in the inter-institutional interpretation and supervision of ESC rights; second, targeting the widespread practice of international cooperation to better coordinate responsibility for extraterritorial effects on core ESC rights; and third, holding international organisations and their members responsible for the effects of their action on national effort and international cooperation for ESC rights.

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.

THE MAXIM “LAW DOES NOT ARISE FROM THE VIOLATION OF LAW” AND THE MODIFICATION OF PEREMPTORY NORMS

Maxim “ex injuria jus non oritur” is not only a general legal, but also an international legal principle, which states that law doesn’t arise from the violation of law. However, peremptory norms of international law (jus cogens) are not something frozen. They develop, like international law in general, so the latter expressly provides for the possibility of their modification by subsequent norms of the same nature. This inevitably means that, in the period of changing such norms, the behavior of some states will contradict the previous peremptory norm until the emergence of a new peremptory norm is recognized by the international community of states. Does the change of imperative norms result in an exception to the abovementioned maxim? And how do you know whether the actions of the state or group of states have created a new peremptory norm of international law, or they are merely a violation of the already existing peremptory norm? Can moral considerations justify the state’s withdrawal from the maxim of “ex injuria jus non oritur” in the name of creating a new peremptory norm of international law? Or is such a deviation justified by the conformity of the state’s actions to any other norms? Having examined these issues, the author comes to the conclusion that, unlike the positive law, natural law does not know exceptions to the maxim. The author proves that the ground for the emergence of new peremptory norms of international law creates changes in natural law.

State Responsibility for the Destruction of Cultural Property

International cultural property law has significantly developed at the level of standard-setting and to some extent at the level of ‘secondary rules’ concerning the individual criminal responsibility for the damage and destruction of cultural objects (in particular when it is intentional). But a gap remains as to State responsibility, an issue carefully shunned in treaties concerning the conservation of cultural property (especially during peacetime). This article addresses the question of how this lacuna can be filled by the application of general principles governing State responsibility for internationally wrongful acts. The analysis highlights that in this field there is a constant interplay between the conduct of States and private actors, with the consequent need to devise some form of shared responsibility for cultural offences, especially when they affect properties of outstanding value. Although no peremptory norm has yet emerged in this field, practice has shown the tendency to make a distinction between ordinary and serious breaches entailing international crimes. This affects the question of who may invoke the responsibility for destruction of cultural objects of great importance to humanity, and raises the question of the applicability of the ‘responsibility to protect’ doctrine to prevent and suppress crimes against cultural property. Keywords: Cultural Property, Destruction, Crimes against Humanity, War Crimes, State Responsibility, Shared Responsibility, Responsibility to Protect

The Internal Morality of International Law

In this essay we build on public fiduciary theory and Lon Fuller’s notion of the internal morality of law. We posit two criteria necessary to establish the internal morality of international law. We argue that the internal morality of international law is derived from the synthesis of a fiduciary criterion of legitimacy and the prohibition of unilateralism. The former refers to the idea that any public action which cannot be reasonably said to be made in the name of, or on behalf of, those subject to it is illegitimate. The latter refers to the prohibition of one state imposing its will on another. We argue that the fiduciary criterion and the prohibition of unilateralism are complementary, and their synthesis provides a compelling explanation of international law’s authority. This is evident from the character and legal effects of jus cogens or peremptory norms. Finally, we address numerous challenges that could be raised against this conception of international law, and its implications for the rule of law in the international realm.

ORDRE PUBLIC PROTECTION AS LEGITIMATE AIM FOR FREEDOM OF EXPRESSION RESTRICTION IN THE INTERNATIONAL LEGAL ORDER

The right to freedom of expression (FOE) is one of the cornerstones of the rule of law, but it is not an absolute right. It can be restricted on specific conditions. International criminal justice, in its fight against war crimes, and more recently against terrorism, by issuing contempt orders restricting FOE, reveals at first sight a disrespect of this fundamental right. The aim of this paper is to evaluate the legality of the restrictions imposed by international criminal courts, according to the international standards set by international human rights conventions. The applicability of the principles enshrined in the International Covenant on Civil and Political Rights, in particular the restrictive circumstances allowing limitation of FOE before international criminal courts, raises doubts. Restriction of FOE for ordre public protection, in particular, is of great interest. This notion of ordre public appeared in recent international case-law but it is quite difficult to pin down. In an attempt to define the notion of ordre public, this paper made first the distinction between ordre public and neighbouring notions, especially with public policy notion and tried to find out if there was a recognized and identified international public order, and if jus cogens and public order had the same meaning or could be interchanged. Here also, few distinctions with neighbouring notions was conducted in order to answer to the final question which is to know if the administration of justice was part of the international ordre public or a jus cogens norm. As a conclusion, it was found that international human rights conventions are not directly applicable to international criminal courts and that their extension to such sector requires an additional effort from the lawmakers; and that administration of justice was not a peremptory norm of international law; it is not part of the international ordre public and cannot serve as legal ground for FOE restriction.

Defining the Imprecise Contours of Jus Cogens in International Law

The concept of jus cogens or “peremptory norms” is not new to students and practitioners of international law, but the practical identification and application of jus cogens norms is not without its own set of disagreements and debate. The purpose of this paper is to identify some of the details of the development of the common understanding of jus cogens within international law, with particular emphasis on the Asian-African perspective, and to outline the work of the International Law Commission (ILC) on the topic since its inclusion on the ILC’s work programme in 2015.

HAK ASASI MANUSIA SEBAGAI JUS COGENS DAN KAITANNYA DENGAN HAK ATAS PENDIDIKAN

Jus cogens as a norm of general international law accepted and recognized by the community as a whole interasional with the main characteristics are non-derogable nature. The right to education is a fundamental human rights, so that its presence can not be reduced under any circumstances based on the benefits and importance of education for children. The national education policy is not fully aligned with the international human rights instruments led to the development of the education sector is not entirely based on human rights. Government is obliged to fulfill the right to education, especially with regard to the budget for building and repairing school buildings and improve the quality of education in Indonesia. The importance of the right to education as the main vehicle for elevating and empowering children from poverty, as a means to actively participate in the construction and total social community and as a powerful path towards human civilization itself. So it can be understood that a peremptory norm, also called jus cogens is a basic principle of international law that is considered to have been accepted in the international community of the country as a whole. Unlike general treaty law that traditionally requires treaties and allows for changes in obligations between countries through treaties, peremptory norms can not be violated by any country.

An Exposition of Liberal Constitutionalism in Practice

Constitution as a codification of rules and peremptory norms that guarantee democratic values and principles of constitutionalism is the first requirement of constitutional governance. This article expose the principles of liberal constitutionalism which is hailed as the highest constitutional ideal in the modern times. It briefly discusses the practice of this principle in three jurisdictions, namely in Australia, India and Singapore and relates how rule of law is an essential indicator of the exercise of constitutional governance.

UK GOVERNMENT CANNOT HIDE FROM COMPLICITY IN HUMAN RIGHTS ABUSES

IN the joined appeals of Belhaj v Straw and Rahmatullah (No 1) v Ministry of Defence [2017] UKSC 3, the UK Supreme Court held that state immunity and the foreign act of state doctrine did not prevent claims against the British Government alleging complicity in human rights abuses and breaches of peremptory norms of international law.

Legal Feasibility of a Lawsuit Against the United Nations

On 9 October 2013, human rights lawyers filed a class-action lawsuit against the United Nations seeking compensation for Haitian victims of a cholera epidemic which they blame on U.N. peacekeepers. This suit rekindled a debate over the feasibility of an action against the legal liability of the UN for its failure to halt the Rwandan genocide. Based on the assumption that the UN has legal personality which gives it the ability to sue and be sued, this paper explores the issue of jurisdiction for a lawsuit against the UN. It finds that though the UN had a legal duty under article 24 of the UN Charter to prevent the Rwandan genocide, it is difficult to establish a claim of criminal omission against it due to the absence of an appropriate court. Also, criminal omissions do not fall under the category of peremptory norms, which qualify a state to assume jurisdiction over the UN under the principle of universal jurisdiction.

طبيعة قواعد القانون الدولي الإنساني في قضاء محكمة العدل الدولية

إن الفقه في مجمله، يؤكد أن قواعد القانون الإنساني، هي قبل كل شيء لها طابع آمر، كما تضمنته المادة 53 من اتفاقية فيينا لقانون المعاهدات لسنة 1969. غير ان محكمة العدل الدولية لم تصل بعد إلى اعتبار القانون الإنساني ضمن القواعد الآمرة، بالرغم أن الفرصة كانت مواتية لها في العديد من القضايا والآراء الاستشارية التي عرضت عليها وتناولت بمناسبتها تحليل قواعد القانون الإنساني أو قانون حقوق الإنسان بشكل أعم. إن دراسة شاملة للقضايا التي تطرقت فيها محكمة العدل الدولية إلى قواعد القانون الإنساني، والتي حللت فيها الطبيعة القانونية العليا لتلك القواعد تثبت بالفعل أن المحكمة كانت تتجنب وصف القانون الإنساني بصفة القواعد الآمرة، والاكتفاء بإبراز الطبيعة المطلقة لتلك القواعد والالتزامات الناشئة عنها تحت مسميات ومصطلحات متنوعة، ولكنها لم تجرئ على إلحاق صفة القاعدة الآمرة بالقانون الإنساني ولو لمرة واحدة ؟ وهو ما يؤكد بشكل عام تمسك المحكمة بفكرة السيادة وسلطان الإرادة في القانون الدولي. Summary : The jurisprudence in its entirety, confirms that the rules of humanitarian law, is first and foremost a commanding character, as the contents of Article 53 of the Vienna Convention on the Law of Treaties of 1969. However, the International Court of Justice has not yet reached the considered humanitarian law within the peremptory norms, although that opportunity were favorable in many of the issues advisory opinions offered by Bmanasptha addressed the rules of humanitarian law analysis or, more generally, human rights law. The comprehensive study of the issues in which the International Court of Justice touched on the rules of humanitarian law, which analyzed the Supreme the legal nature of those rules already shown that the Court was to avoid description humanitarian law as peremptory norms, and only highlight the absolute nature of those rules and obligations arising there from under the names and terms variety, but they did not dare to inflict recipe jus humanitarian law Qaeda even once? Which confirms the generally hold court with the idea of sovereignty and authority will in international law.

Piracy and Empire: The Campaign against Piracy, the Development of International Law and the British Imperial Mission

This article will examine the issue of piracy and how the prohibition of piracy developed in international law from the 19th century onwards. The campaigns against piracy in the 19th century influenced the development of international law into the 21st century with the prohibition on piracy achieving the status of peremptory norm ‘jus cogens’ under international law. The anti-piracy campaign of the British led to the signing of treaties which, although ostensibly designed to prohibit the trade, had the effect of consolidating British power and influence over the Gulf States and furthered imperial interests there. The campaign also further contributed to the notion of the ‘civilising mission’. The legacy of the campaigns reverberate in the contemporary debates about piracy, particularly in relation to the so-called pirates who operate off the west coast of Africa.