Search

The article focuses on the European Union (EU) intervention in Cyprus and concrens regarding right to self-determination is a jus cogens right for the EU and the Council of Europe. Topics discussed include EU could argue that United Nations Security Council Resolution 550 justifies the isolation of Northern Cyprus, 1960 Settlement which did not permit the economic or political unification of the island partially and interventions by the European Court of Human Rights (ECtHR).

The Internationalist doctrine reserved an ample space to debate the identification criteria of peremptory norms - jus cogens-considering as insufficient the criteria stated in article 53 of the 1969 Vienna Convention regarding treaty law, more specific the status of these norms in International General Law, and also the no derogation quality in relation to these norms whose regulations stated in particular treaties will consequently be drastically sanctioned as invalid. This is why it is considered that the main principle of identification is internationalist practice of the States , the only one capable to agist in international relations and in the international law hierarchy the imperative nature of some of these norms in this law branch. [ABSTRACT FROM AUTHOR]

If legal positivists wish to sustain their account of the international legal system, arguably, they have yet to explain how jus cogens obligations can derive from the usual norm-creating processes recognized by international law. This article provides such an explanation exactly The explanation builds on the distinction between first order rules of jus cogens (commanding or prohibiting some certain action) and second order rules of the jus cogens regime (specifying the legal consequences ensuing from the postulated superiority of jus cogens over ordinary international law). As argued in this essay, the jus cogens status of a rule of law (R) derives from the existence of the second order rules of the jus cogens regime and from the application of those rules to R. Consequently; the explanation of the source of jus cogens obligations lies in the source of the second order rules, rather than in the source of the first order rules themselves. The second order rules are general customary international law, why this must also be the source of jus cogens obligations. This essay ends by inquiring into the implications of this analysis for the concept of jus cogens and for international legal theory in general. [ABSTRACT FROM AUTHOR]

One of the most exciting innovations within 'practical democratic theory' in recent years has been the emergence of deliberative democracy, as a theoretically refined ideal with by now some well-honed mechanisms for its implementation on a small scale. Its greatest remaining challenge is to figure out some way to connect those highly controlled, small-scale deliberative exercises to the 'main game', politically. I sketch some limited and indirect ways in which that might happen in national politics, before going on to propose a more novel way in which such deliberative events might be used literally to make international law of a certain sort. [ABSTRACT FROM AUTHOR]

Abstract What, exactly, is it about Jus Cogens that distinguishes it from ordinary international law? In answering this question, international lawyers usually resort to the 'the Legal-Consequences-as-Criterion Theory': while ordinary international law can be rebutted or modified in accordance with the duly expressed will of states, Jus Cogens norms permit no derogation and allow modification only by the creation of a new norm having the same character. In the present essay, this theory is subjected to analysis and assessment. Section 2 inquires into the relationship between the Legal-Consequences-as-Criterion Theory and the general definition of Jus Cogens reflected in Article 53 of the 1969 Vienna Convention. As argued, Article 53 is entirely reliant upon the validity of the Legal-Consequences-as-Criterion Theory. Sections 3 and 4 inquire into the assumptions underlying this same Theory. As argued, the Theory does not provide good reasons for the distinction between Jus Cogens and ordinary international law. [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]

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]

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]

The article discusses the author's view on the relationship between power and the second element of customary international law. The author reflects the influence of theoritical developments including the sociological constitutionalism, which explores the sharing of perspectives and understanding within the different actors of international law and institutions. Also mentioned is the subsequent literature to explain the intersection of international relations and international law.