The Legal Consequences of Peremptory Norms in International Law
| Autor: | KAWASAKI, Kyoji |
|---|---|
| Jazyk: | japonština |
| Rok vydání: | 2018 |
| Zdroj: | 一橋法学. 17(3):3-30 |
| ISSN: | 1347-0388 |
| Popis: | The notion of jus cogens was introduced into international law in 1969 by Article 53 of the Vienna Convention on the Law of Treaties. Half a century has passed since then, jus cogens is currently being used far beyond the original idea of being a cause of “nullity” of a “treaty” “between States.” Jus cogens is instead now being employed in other areas by a variety of actors, not only by States, but also by NGOs and individuals. This paper examines a variety of arguments on the legal effects of peremptory international rules that go beyond the original effect of the “nullity” of a “treaty” “between States.” First, international legal acts other than a treaty, including a binding resolution of an organ of an international organization, will become void if it conflicts with a peremptory norm. Secondly, with regard to factual circumstances, the wrongfulness of a State act is not precluded if it is not in conformity with a jus cogens obligation. However, this is not because the obligation in question has a peremptory nature, but rather because several other considerations, including the erga omnes nature of the obligation, the essential nature of the interest to be protected by the obligation and the composite type of the obligation, all eventually lead to the same conclusion. Thirdly, increasing reliance on jus cogens before domestic courts may facilitate the establishment of specific customary derogatory rules from the principal rules on exercising criminal jurisdiction, etc. Fourthly, in cases of a serious breach of a peremptory obligation by a State, all other States are under the obligation not to recognize the situation created by that breach as being lawful. However, to demand that all other States do not recognize the situation as being lawful is nothing more than evidence of the incapacity of the international community to directly invalidate the laws and orders of the responsible State. It therefore follows that the scope of the obligation remains a modest one, in the sense that it attempts to prevent an illegal situation from spreading beyond the territory of the responsible State. *Related articles in English written by the author : Kawasaki, A brief note on the legal effects of jus cogens in international law, Hitotsubashi Journal of Law & Politics, vol. 34（2006）, pp. 27-43; Kawasaki, International jus cogens in the Law of State Responsibility, in Focarelli（a cura di）, Le nuove frontiere del diritto internazionale （Morlacchi Editore, 2008）, pp. 145-165. (佐藤哲夫先生 退職記念 = Commemorating Professor Tetsuo SATOʼs Retirement) |
| Databáze: | OpenAIRE |
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