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This article explores the persistent gap in receptivity to feminist approaches to public international law within international institutions, using the International Court of Justice (ICJ) as an example. The article argues that the ICJ, as the main judicial organ of the United Nations, remains non-receptive to feminist analyses of public international law. Mainstream public international law, therefore, still has a long way to go before we can affirm that feminist critiques of public international law are fully acknowledged and being addressed. In order to defend this argument, the article analyses the ICJ's position on the notion of jus cogens, including the dissenting and separate opinions of individual judges, through the lens of feminist legal methods. [ABSTRACT FROM AUTHOR]

Jus cogens is receiving renewed interest both in legal practice and academia. A number of recent books approach the subject from different angles, attributable to different strands of the debate. Some approaches are predominantly technical and cannot adequately address the symbolic value of jus cogens. Others argue that considerable legal effects derive from the value dimension of jus cogens but risk skipping over technical niceties. Reading several works that represent these tendencies together points to an insurmountable tension between value orientation and formalism that is indicative of the current state of jus cogens in international law. In this review essay, I discuss a legal technique approach, a value approach relying on social contract theory and a practice-oriented approach to the study of jus cogens, represented by the three books under review. On the basis of the current state of case law and research, I also identify the most pressing challenges for our understanding of jus cogens and reflect on the relation of scholarship and the parallel work of the International Law Commission and, more generally, on the performative force of theories. I conclude that jus cogens as a manifestation of 'value formalism' in international law is an even greater conceptual conundrum than it was 20 years ago. [ABSTRACT FROM AUTHOR]

Upon conceiving constitutionalism on the scale of the nation-state as transparent and unproblematic, one may think global constitutionalism to be a mere utopia. On closer analysis, however, legitimation of nation-state constitutionalism turns out to be much more complex and contested than initially apparent, as becomes evident based on the contrast between liberal and illiberal constitutionalism. Upon the realization that nation-state liberal constitutionalism can only be legitimated counterfactually, the social contract metaphor emerges as a privileged heuristic tool in the quest for a proper balance between identity and difference. Four different theories offer plausible social contract justifications of nation-state liberal constitutionalism: a deontological theory, such as those of Rawls and Habermas, which privileges identity above difference; a critical theory that leads to relativism; a thick national identity based one that makes legitimacy purely contingent; and a dialectical one that portrays the social contract as permanently in the making without any definitive resolution. Endorsing this last theory, I argue that differences between national and transnational constitutionalism are of degree rather than of kind. Accordingly, it may be best to cast certain transnational regimes as constitutional rather than as administrative or international ones. [ABSTRACT FROM PUBLISHER]

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. [ABSTRACT FROM PUBLISHER]

Recent years have seen increasing references to jus cogens in the case law of several international and even domestic courts. Despite significant discussion in the literature, it remains difficult to identify the real consequences of this trend. The chapter on jus cogens in Antonio Cassese’s last book looks for operative means of enhancing jus cogens. The three proposed paths are not necessarily realistic, but to what extent do they need to be? The hypothesis here is that perhaps it is the act of reflection that sustains the notion of jus cogens ̶and therefore keeps jus cogens itself alive and able to perform its rhetorical function. [ABSTRACT FROM PUBLISHER]

A response is provided to Alexander Orakhelashvili's analysis of the author's article "The Peremptory Norms of the International Community" which appears in the same issue of the "European Journal of International Law." The author discusses public policy, human rights, and the international law concept of jus cogens in relation to the legal framework of the international community. The Statute of the International Court of Justice is also mentioned.

A response is provided to William E. Conklin's article "Peremptory Norms of the International Community" which appears in the same issue of the "European Journal of International Law." The author suggests that Conklin's advocacy for imposing peremptory norms (jus cogens) on the international community presupposes the universality of jus cogens. The author also discusses the European Court of Justice's examination of the legality of sanctions promulgated under European Union law.

The article presents the author's views regarding the state officials' international law immunities. The author discusses the intrinsic governmental and restrictive natures of the mentioned immunity theory. The author denotes the connectivity of jus cogens and immunities. The author also notes the information about extraterritorial jurisdiction.

The article focuses on the issues regarding international law immunities and jus cogens norms. It discusses the statements of Alexander Orakhelashvili concerning the issues engulfing the mentioned law immunities. It highlights the status of immunities such as functional and special mission immunity. Moreover, the extra-territorial jurisdiction of immunities is also discussed.

This article uses the emergence of the protection of community interests in international law as a theoretical framework to explain a number of legal notions and regimes, such as jus cogens, obligations erga omnes, international responsibility towards the international community as a whole, and individual criminal responsibility. With reference to various international conventions, the work of the International Law Commission, and the case law of different international tribunals, it describes how changes in social intercourse at the global level have entailed structural transformations of the international legal order, as well as tensions caused by the concurrent legal protection of community and individual interests. The article further explains how the proposed theoretical framework may be used to address several concrete issues which have arisen in the contemporary legal debate, such as the question of exceptions to the immunity of state officials from foreign criminal jurisdiction, countermeasures by states other than the injured state in international responsibility, the legal regime of jus cogens, etc. [ABSTRACT FROM PUBLISHER]

There is an almost intrinsic relationship between jus cogens and human rights. Peremptory human rights norms, as projections of the individual and collective conscience, materialize as powerful collective beliefs. As such, they inherently possess an extraordinary force of social attraction that has an almost magical character. This article investigates the legal effects of peremptory human rights norms at both the systemic and contextual levels. If these norms have been successful in providing the societal body with a set of identity values, they have dramatically failed to operate as an ordering factor of social practices. To wonder why this is so and to see what can be done (and by whom) to enhance their impact on the contextual level is the main goal of this article. [ABSTRACT FROM AUTHOR]

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 as an 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. How can this situation be remedied? [ABSTRACT FROM AUTHOR]

The United Nations Security Council is the most powerful institutional body ever established at the global level. Its existence and powers, as based on the United Nations Charter, firmly evidence the support of the entire international community. At the same time, the will of the international community as a whole can be expressed at different levels and in different ways. In today's international law, there can be little doubt that the international community as a whole attaches special importance and effects to peremptory norms of general international law (jus cogens) and endows them with high status. The interaction between those high-ranking norms and the powers of the Security Council is therefore among the most central issues of international law. In searching for a preferable approach, it is proposed to consider the treaty-based character of the Security Council's powers. The Council is not free of legal limitations, and this conclusion cannot be rebutted even by referring to the classical debate on the interaction between the concepts of peace and justice in international relations, because the General Assembly and Security Council have repeatedly affirmed the relevance of the observance of law in maintaining and restoring international peace and security, notably with regard to the conflicts of the Middle East and Former Yugoslavia. Bearing all this in mind, this article will examine the scope and legal effects of the legal limitations imposed on the Security Council by the operation of peremptory norms. [ABSTRACT FROM AUTHOR]

This comment argues that Koskenniemi's postmodern irony with regard to concepts such as human rights and jus cogens, which views these concepts either as 'kitsch' or as mere 'instruments in hegemonic struggle', is not plausible, because there is, contrary to Koskenniemi's postmodern-ironist assertions, no neutral platform permitting us to stand outside (and to look through) concepts such as human rights, democracy, jus cogens, and so on. [ABSTRACT FROM AUTHOR]

The article explores the validity of the Furundzija dictum in accordance with which jus cogens has to bind the state in its treaty relations and with respect to acts of the legislature, executive and judiciary. It mainly focuses on the implications of the prohibition of torture as a limitation to the national (constitutional) legislative process (an 'internal manifestation' of jus cogens), as well as to national legislation pertaining to sovereign immunity (an 'external manifestation' of jus cogens). The article also gives some indication of the role of jus cogens in determining the applicable law in conflict of law disputes and in fulfilling the double criminality requirement in extradition proceedings. In the process, it reflects the highly complicated nature between jus cogens and national law. For example, whereas the 'internal manifestation' can result in a strengthening of international norms within the national legal order, the 'external manifestation' has the potential to undermine the binding character of general international law, or even destabilize the international legal order itself. The article also exposes an emerging hierarchy of norms in international law, which is underpinned by a deepening of the international consensus pertaining to the content and hierarchical order of the international value system. [ABSTRACT FROM AUTHOR]

Discussions surrounding the concept of the international state crime have focused to a large extent on the mode of reaction to breaches of peremptory norms of the international legal order. In particular, the question arose whether UN mechanisms aimed at preserving international peace and security should be regarded as a privileged -- or even exclusive -- means to implement this type of 'aggravated' responsibility. Drawing on Security Council practice, Special Rapporteurs Ago and Riphagen suggested that UN organs should play a central role in such a situation. Ascribing a central function to UN organs in reaction to international crimes has, however, drawn criticism on several grounds, such as the limits to the Security Council's ratione materiae competence and its lack of legitimacy in representing the international community. Proposals to develop new institutional mechanisms, put forward by Arangio-Ruiz, have, however, proved no more successful, and have been condemned as 'utopian'. Article 54 of the final version of the Articles on State Responsibility appears to leave the question open, since, following Special Rapporteur Crawford, the ILC chose not to exclude any specific mode of reaction to serious breaches of peremptory norms of international law, whether carried out within or outside existing international institutions. This probably better reflects the present state of institutionalization of the international society. [ABSTRACT FROM AUTHOR]

The use of countermeasures by indirectly injured states, subjectively analyzed as a means of the defence of general interests -- referred to as 'countermeasures of general interest' -- is not specifically embodied in the ILC's Draft Articles on the International Responsibility of States. This omission raises questions about the substantial international practice of states on this point, which the article considers. The Draft Articles refer to jus cogens in preference to the previously utilized notion of the 'international crime'. The article considers how this fits in with the notion of countermeasures of general interest, and also considers the link between international responsibility and the guarantee of international legality. [ABSTRACT FROM AUTHOR]

The invocation of responsibility for the breach of an international obligation is a matter involving numerous substantive issues. This paper examines only two -- the law of diplomatic protection and the process of international adjudication. Both these issues raise particular problems where the obligation in question is a peremptory norm of international law. All states have a legal interest in ensuring compliance with peremptory norms, whether or not they or their nationals are materially injured by any given breach. That this entails a multilateral, as opposed to a bilateral, delictual relationship was recognized by the International Law Commission when it drafted the 2001 Articles on the Responsibility of States for Internationally Wrongful Acts. Although Articles 42 and 48 of these Articles recognize that states not directly injured by the breach of a peremptory obligation are entitled to invoke the responsibility of the delinquent state, these two Articles are not self-contained. In particular, they are expressly subject to Articles 44 and 45. These preclude the invocation of responsibility unless the nationality of claims rule is satisfied (Article 44) or if the injured state has validly waived or acquiesced in the lapse of the claim (Article 45). These conditions restrict, if not negate, the practical utility of Articles 42 and 48. [ABSTRACT FROM AUTHOR]

In Article 41 of its Draft Articles on State Responsibility, the International Law Commission gave expression to community interests in relation to serious breaches of peremptory norms, without giving in to the pitfalls of an over-progressive development of the subject. However, when it came to the rules on invocation of responsibility, the ILC fell back into a stale, bilateralistic response. This imbalance, more than being a symptom of schizophrenia or a sign of disingenuousness, is probably the undesired result of a dichotomy in the ILC Draft between 'serious breaches of peremptory norms' and 'violations of obligations owed to the international community as a whole'. Yet, overall, the ILC's choices accurately reflect the current transitional state of international law. [ABSTRACT FROM AUTHOR]

Considerable confusion has surrounded the question of whether there exists a hierarchy of human rights in contemporary international law. Most human rights studies do not recognize such a hierarchy, mainly because of their emphasis on the indivisibility of human rights. This paper provides a possible coherent understanding of this issue from the perspective of non‐derogable rights, which demonstrate the existence of a hierarchy of human rights most clearly in international law concepts. It is a serious mistake to regard non‐derogable rights as a unitary concept. Rather, the concept may be identified in at least three different ways: by means of value‐oriented, function‐oriented and consent‐oriented criteria. Within this analytical framework, and particularly with respect to the first two criteria, non‐derogable rights need to be distinguished from similar concepts such as core human rights, jus cogens and obligations erga omnes. These concepts display the same character when identified by the value‐oriented criterion, but this is not the case when they are identified by the function‐oriented criterion. Throughout this discussion, it is argued that non‐derogable rights provide the key to understanding hierarchy in international law in general. [ABSTRACT FROM PUBLISHER]