Peremptory Norms Of International Law Research Articles

Withdrawal from a Human Rights Treaty and Peremptory Norms of International Law: The case of “Belarus 2020”

Abstract The article analyzes the general concept of withdrawal from human rights treaties and addresses a specific case of withdrawal from the Optional Protocol to the International Covenant on Civil and Political Rights. The article argues that the human rights regime, due to its axiological nature, the non-reciprocal character of treaty parties’ relations, and the final beneficiaries´ expectations, needs lex specialis provisions on the withdrawal matters. Moreover, the results of analyses of the United Nations’ bodies show that the general clause on withdrawal being requested by a non-democratic state may lead to the denial of access to international justice for indivi duals and jeopardize the entire human rights protection system. Nowadays, however, the Vienna Convention on the Law of Treaties does not satisfy the needs of the human rights regime. The United Nations and its mandate holders are recommended to request an advisory opinion of the International Court of Justice to clarify the compliance of the termination clause of the human rights treaties with the common values of the international society of states as a whole and the principles of the United Nations.

Translating Educational and Cultural Literacy Works under Berne, Ius Cogens, and Linguistic Genocide

The lack of works for educational and cultural literacy purposes in their own languages threatens the cultural survival of many vulnerable minority and indigenous groups worldwide. Translation could satisfy related access needs. A strict reading of international copyright law, however, does not facilitate the translation of works into other languages. Yet, it is often forgotten that, in accordance with the integration rule of treaty interpretation, the Berne Convention, and other relevant international intellectual property instruments, would have to be read in the light of internationally protected linguistic human rights in education and for cultural literacy. This mechanism could go some way towards assisting the easier translation of (parts of) works for the stated purposes into other languages. The argument made in this article, however, is that a harmonious reading of existing international copyright law with international human rights law cannot go as far as to sufficiently resolve the access needs of vulnerable groups speaking an endangered language, insofar as translated texts are concerned. In fact, it is contended that the existing regulation of translation under international copyright law is so inimical to the survival of vulnerable groups and their languages that it must be held to promote cultural or linguistic genocide. For that reason, the relevant copyright rules must be considered to conflict with ius cogens, that is, peremptory norms of international law, and to be void in their application to neglected languages. The article makes suggestions as to how countries could design national copyright law regulating translation rights and limitations and exceptions in a way that facilitates translation generally, and into neglected languages specifically. These suggestions are based on a reappraisal of the true character of translation, which must be seen to be highly transformative in nature and resulting in the creation of autonomous new works.

Draft Conclusions of the International Law Commission on Peremptory Norms of International Law (Jus Cogens) and the Turkish Translation of the Study

Genel uluslararası hukukun emredici normları (jus cogens), uluslararası toplumun temel değerlerini korumayı amaçlayan, evrensel nitelikte ve hiyerarşik açıdan uluslararası hukukun diğer kurallarının en tepesinde olduğu düşünülen normlardır. Kendilerinden sapılmasına izin verilmeyen bu normların içeriği uzun yıllar tartışma konusu olmuştur. Genel uluslararası hukukun emredici normları (jus cogens) 1969 Viyana Antlaşmalar Hukuku Sözleşmesinin 53. ve 64. maddelerinde düzenlenmiş olsalar da, söz konusu iki madde bu normun içeriği konusunda yeteri kadar açıklayıcı değildir. Ayrıca bu Sözleşme sadece uluslararası antlaşmalar bağlamında jus cogens normları ele aldığı için aydınlatılması gereken farklı uluslararası hukuk meseleleri söz konusudur. Bu nedenle Uluslararası Hukuk Komisyonu jus cogens normların içeriğini aydınlığa kavuşturmak amacıyla 2015 yılında çalışmaya başlamış ve bu çalışmalar 2022 yılında tamamlamıştır. Bu çalışmada Uluslararası Hukuk Komisyonu’nun Genel Uluslararası Hukukun Emredici Normları (jus cogens) hakkındaki taslak sonuçlar çalışmasının Türkçe çevirisi yer almaktadır.

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

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

Should the ICC accept Taiwan’s delegation of ad hoc criminal jurisdiction? A debate on Taiwan’s functional statehood in the context of Article 12(3) of the Rome Statute

This paper provides a comparative study of Taiwan (Republic of China) (ROC) and Palestine. It argues that Taiwan (ROC), while not recognised as a State and thus unable to ratify the Rome Statute, could still delegate criminal jurisdiction to the International Criminal Court (ICC) by means of an ad hoc Article 12(3) declaration. This is because Taiwan (ROC) practises and enforces an autonomous domestic criminal justice system and has the capacity to cooperate with the ICC under Part 9 of the Rome Statute. By carefully studying the jurisdictional decisions on Palestine, this paper argues that the door is still open for future Pre-Trial Chambers to consider the functional interpretation of ‘State’ under Article 12(3). However, the major challenge for Taiwan (ROC) is not one of impracticability but illegitimacy. A declaration would require consideration of why jurisdiction ought to be extended to Taiwan (ROC) but not to other contested entities. In this respect, the paper argues that the ICC should follow the mandatory non-recognition of contested entities created and sustained in violation of peremptory norms of international law. In addition, the paper argues that, as the ‘interests of justice’ clause under Article 53 would, in any event, serve as the final bar to filter out ‘sham’ declarations that intend to advance entities’ statehood before an investigation, political consequences alone should not prevent the ICC from accepting Article 12(3) declarations lodged by contested entities such as Taiwan (ROC) at the jurisdictional stage.

The Principle of Non-Recognition of States Arising from Serious Breaches of Peremptory Norms of International Law

Abstract The concept of recognition of States comprises both political and legal aspects. Over time, its nature has been addresssd in different ways that have given rise to a debate encompassing the topic of what statehood is, according to international law. The notions of international personality, which is bestowed upon certain international actors, and of capacity to act, as a manifestation of the former, aid in understanding recognition in the present day. On this basis, an “obligation of non-recognition” when faced with new States arising as a result of the commission of unlawful international actions takes the shape of a restriction upon the capacity to act. Moreover, it may be observed that when the breach is of peremptory norms of international law, the corollary of a principle of non-recognition would come into play, affecting the appearance of elements of statehood.

COOPERATING THROUGH THE GENERAL ASSEMBLY TO END SERIOUS BREACHES OF PEREMPTORY NORMS

AbstractThe International Law Commission's 2019 Draft Conclusions on Peremptory Norms of International Law assert that States have an obligation to cooperate to end serious breaches of peremptory norms. International law provides scarce guidance, however, regarding how States are expected to fulfil that obligation. This article seeks to elaborate: first, whether the prohibition of crimes against humanity and the ‘basic rules’ of international humanitarian law are peremptory norms; second, what States are required to do to fulfil their obligation to cooperate; and third, how States might utilise the General Assembly as a forum through which to fulfil that obligation.

Statism’s Catch-22: An Austro-Libertarian Analysis of 'Self-Determination of Peoples' under International Law

“Self-determination of peoples” is a relatively new international law principle which has gone through numerous changes in its history, making it an elusive concept. The principle has received interest the last 30 years, prompted at first by the Soviet breakup, more recently by growing nationalist movements, and most recently by states’ totalitarian measures enforced in the name of combating COVID-19. Important issues concerning the future of self-determination’s status in and impact on the international system remain. This paper outlines and analyzes the history of self-determination using a three-phase framework. In Phase One, the principle was a non-legally binding political principle. In Phase Two, the principle became legally binding but was limited to the decolonization context. In Phase Three, the principle becomes a universally accepted human right that some judges and jurists argue has become a peremptory norm of international law (jus cogens), which no state can violate under any circumstances. This historical inquiry reveals that the principle has always been asserted and argued against by states with the goal of maintaining or gaining power for themselves. This paper then summarizes the principle’s modern incarnation as a human right under international law, whereby “peoples” – i.e., the entire population of a state’s territory – have the right to both “external” and “internal” self-determination. “External” self-determination is the right of a people to have a state with independent international status. “Internal” self-determination means that the people in the state must be free to pursue their economic, social, and cultural development, while having adequate ability to participate in government. Self-determination and secession are often paired together, but current international law does not directly allow or disallow secession. This paper then delineates theoretical issues the modern incarnation of the self-determination principle poses for statism and the international system, including: how to define “peoples” under the principle; what the relationship of the principle to states’ sovereign territorial integrity should be; how to redraw state boundaries after a successful secession; whether radical self-determination leads to violent conflict; and what is the relationship of unfettered secession to liberal-democratic theory that much of the international system is based upon. Then, this paper applies Austro-libertarian theory to these issues, arguing that: the principle relies on an unfounded collectivist conception of rights; the international system slavishly adheres to the incoherent concept of states’ sovereign territorial integrity; the principle, when its inconsistencies are removed, must theoretically justify unfettered secession; and the conflation of democracy with both liberalism and government by consent keeps properly understood self-determination from being achievable in fact. This paper concludes that the modern self-determination principle’s theoretical deficiencies and inconsistencies present a catch-22 dilemma for the international system. Either self-determination must be extended to take supremacy over state territorial integrity, or it must be rejected explicitly and entirely. Either choice, or trying to split the difference between them, incentivizes delegitimization of statism and the international system.

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: 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.

Zabrana proterivanja (non-refoulement) u praksi Ustavnog suda Srbije u svetlu opšteprihvaćenih pravila međunarodnog prava - od prihvatanja do neprimenjivanja

The absolute prohibition of torture and other forms of ill-treatment stands as one of the most fundamental values of democratic societies and represents the peremptory norm of international law. The respect of this prohibition implies non-refoulement - an obligation of the States to refrain from sending individuals back to the territory of the receiving countries where substantial grounds have been shown for believing that the person in question, if removed, would face ill-treatment. Taking into consideration that the jurisprudence of the European Court of Human Rights has significantly developed in the last two decades, the principle of non-refoulement has become one of the most exciting human rights topics worldwide. The Constitution of Serbia stipulates that the generally recognized rules of the international law form an integral part of Serbian legal system, including the rules of international customary law. Moreover, interpretation of the human rights provisions of the Constitution must be conducted in line with the practice of regional and universal human rights bodies. The author of this paper analyses to which extent the Constitutional Court of Serbia has managed to successfully apply the human rights standards developed in the jurisprudence of the European Court which relate to the principle of non-refoulement with regards to the safe third country concept.

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.

The Non-Proliferation Treaty in the Mirror of Contemporary International Public Order

International law is aimed to control self-interest seekers’ behaviors with respect to very universal values which present foundations of the contemporary international community as a whole. The global pluralism may be considered as a product of international public order regulating common interests or needs. Achieving comprehensive results necessitate unified approaches to the most essential issues of international affairs such as non-proliferation of mass destructive nuclear weapons; however, paradoxical treatments in the context of nuclear international co-operations by influencer states show confusing directions against object and purpose of the Non-Proliferation Treaty. This paper through reviewing non-proliferation regime as a tool for global governance establishes that universal public policy requires nuclear-weapon states’ compliance from integrity of the Treaty, including disarmament, non-proliferation, and peaceful use. Therefore, selective approach as well as inconsistency to object and purpose of the treaty weakens the pillars of the international public order consolidated by peremptory norms of international law.

Des Pouvoirs Souverains des Assemblées Constituantes Post-Révolutions : Réflexion à Partir du Cas de L'assemblée Constituante Tunisienne (ANC)

The experience of Tunisia's Constituent Assembly has raised important constitutional questions regarding the assembly's powers, and has provoked a dispute both political and doctrinal between two opposing constitutionalist discourses. One discourse would like to attribute to the Assembly an ‘original’ and absolute power, thereby exempting it from an obligation to respect a pre-Constitution road map and to ‘prepare’ the constitution within a one-year deadline; the other contests the Assembly's very legitimacy following the deadline's expiration, arguing that the real constituent power belongs to the people. In referring to multiple constitutional experiences, the present article will seek to the find a middle ground between these opposing views, and argue that the Assembly does not have a constituent power; rather, the Assembly has an inherent constituting competence that is limited by pre-constituent moral obligations, and especially by the peremptory norms of international law.

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.

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.

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.

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.

Recogntion in International Law: Recognition of States and European Integration - Legal and Political Considerations

Recognition of States in international law is a political act based on interests and assessments made by states individually. However, in granting recognition, it is the legal arguments that must prevail. The recognizing State should base its decision on a legal framework which makes the act of recognition valid and credible. At the same time, such political decision supported by legal arguments may in no way threaten international peace and security, and may not be in collision with the peremptory norms of international law. Following is a paper on recognition of States in international law as seen from the aspect of international peace and stability. The primary objective of the international community, particularly since the establishment of the United Nations Organization, has been the maintenance of peace and security in the world. Therefore, the international recognition of entities that have demonstrated wide and strong capacity to be states, and whose attitude has been to serve the greater interests of peace, security, harmony and prosperity among people, must be a principled decision, not conditioned by mere political interests. International recognition of states is a precondition for the prosperity of new states. As such, it must obtain the status of a stabilizing instrument of new entities as well. When it comes to small states, this act is even more significant, for it secures and protects them from potential threats, hence strengthening the commitment for peace and stability. In the context of European Union membership process, it must be underlined that recognition may not become an obstacle to the aspiring States, though it seems to be the case at present. Macedonia and Kosovo are case in point. Recognition must become a catalyst and incentive for a quicker, more efficient and full-fledged euro-integrating process, which is crucial for preserving long-term stability, functioning democracy and peace and understanding among people.

Recogntion in International Law: Recognition of States and European Integration - Legal and Political Considerations

Recognition of States in international law is a political act based on interests and assessments made by states individually. However, in granting recognition, it is the legal arguments that must prevail. The recognizing State should base its decision on a legal framework which makes the act of recognition valid and credible. At the same time, such political decision supported by legal arguments may in no way threaten international peace and security, and may not be in collision with the peremptory norms of international law. Following is a paper on recognition of States in international law as seen from the aspect of international peace and stability. The primary objective of the international community, particularly since the establishment of the United Nations Organization, has been the maintenance of peace and security in the world. Therefore, the international recognition of entities that have demonstrated wide and strong capacity to be states, and whose attitude has been to serve the greater interests of peace, security, harmony and prosperity among people, must be a principled decision, not conditioned by mere political interests. International recognition of states is a precondition for the prosperity of new states. As such, it must obtain the status of a stabilizing instrument of new entities as well. When it comes to small states, this act is even more significant, for it secures and protects them from potential threats, hence strengthening the commitment for peace and stability. In the context of European Union membership process, it must be underlined that recognition may not become an obstacle to the aspiring States, though it seems to be the case at present. Macedonia and Kosovo are case in point. Recognition must become a catalyst and incentive for a quicker, more efficient and full-fledged euro-integrating process, which is crucial for preserving long-term stability, functioning democracy and peace and understanding among people.