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Jus Cogens as a Vision of the International Legal Order
... Due to the superior nature of the dignity of the human person, 6 it has been described as a value rather than a norm. According to Petsche, values are the foundation of the normative system and they give rise to norms (Petsche, 2010). "Thus, for example, the prohibition of degrading treatment (a norm)," states Petsche, "is based on the dignity of the human person (a value) and gives rise to the corresponding individual right not to be made subject to such treatment" (Petsche, 2010). ...
... According to Petsche, values are the foundation of the normative system and they give rise to norms (Petsche, 2010). "Thus, for example, the prohibition of degrading treatment (a norm)," states Petsche, "is based on the dignity of the human person (a value) and gives rise to the corresponding individual right not to be made subject to such treatment" (Petsche, 2010). The African Charter follows this value→norm approach. ...
Deepfake, the manipulation of videos, audio and images using Artificial Intelligence (AI) technology, is popularly gaining attention in different areas of law since its first creation in 2017. Recent scholarships have considered its impacts on evidence law and proofs in courtrooms. Other areas of law that have been tested with deepfake include criminal law, torts, intellectual property and national security law, among others. In Africa, one of the challenges in addressing issues relating to deepfake is illiteracy. Most Africans are said to be ignorant of what deepfake is. Yet, with its nature and as a form of AI, deepfake impacts almost all known human rights since human rights are interdependent and interrelated. This paper seeks to introduce and underscore the impacts of deepfake on human rights in Africa, particularly the rights contained in the African Charter on Human and Peoples' Rights (African Charter). Although an analysis of the impact of deepfake on all the rights contained in the African Charter is outside the scope of this paper, the most impacted human rights-the right to dignity, privacy and information-will be discussed. As a prolegomenon (introduction) on this topic, the paper aims to highlight the human rights violations in the creation of deepfakes in Africa. The paper argues that while most deepfakes are created by private individuals, under the 'duty to respect' framework of human rights, both individuals and State Parties have obligations to respect human rights.
There is substantial support in literature of the idea that all norms of jus cogens are erga omnes, in that they produce obligations applicable towards all states. However, not all obligations erga omnes invariably flow from a jus cogens characterisation. Indeed, although this is the case, there is no simple criterion by which one can determine the extent of the overlap between jus cogens and erga omnes. This relationship is further complicated by questions relating to the kind of measures that states may be permitted to take in order to protect or ensure compliance with obligations erga omnes, bringing to light, the debates surrounding the concept and the place of third-party countermeasures regarding state responsibility. Against this backdrop, this article will assess the concept of obligations erga omnes, its relationship with jus cogens as well as the legal position and the place of third-party countermeasures in relation to the protection of obligations erga omnes and/or as a way of invoking state responsibility by reacting to breaches of international law obligations with erga omnes status.
أثبت القانون الدولي إنه قانون متطور ومرن على مر السنين، ورغم ذلك فإن هذا التطور يأخذ زمناً طويلاً جداً، فمفهوم القواعد الآمرة إستغرق 83 سنة حتى تبلور وأصبحت له تطبيقات ملموسة وذات تأثير، وقد ظهر ضمن هذا التطور مفهوم حديث آخر هو الإلتزامات تجاه الكافة في قضية برشلونة تراكشن 1970م، وقد إستنتجنا إن هذين المفهومين يندرجان تحت مفهوم أوسع هو القواعد القطعية، ويمثل هذا المفهوم المصالح العليا المشتركة للمجتمع الدولي، ويتكون من قواعد تسمو على كافة القواعد الأخرى في القانون الدولي، ولا يجوز الإتفاق على خلافها أو الحيد عنها؛ وتحمل من جهة أخرى واجب الإنفاذ على جميع الدول في المجتمع الدولي.
The chapter examines the relationship between AI- generated wealth and IP protection. It examines the existing and potential impact of AI on the economic circuit in terms of wealth creation and redistribution. It also examines the potentially disruptive impact of AI on labor market and social equality. On the basis of such potential impact, it addresses the role of intellectual property norms and the need to re- visit them, on the grounds of AI expanding autonomy and the need for a public compensatory scheme for the disruptions that AI brings in the labor market.
El presente artículo examina la importancia del trabajo de la Comisión de Derecho Internacional en el desarrollo del concepto del ius cogens, el cual inició con su inclusión en los artículos 53 y 64 de la Convención de Viena sobre el Derecho de los Tratados. En un segundo momento, la Comisión, con base en un análisis de la práctica internacional, ha definido en cuatro informes la naturaleza del ius cogens, los requisitos para considerar una norma internacional como tal, sus consecuencias jurídicas y una lista ilustrativa de estas normas. De esta forma, la Comisión de Derecho Internacional ha hecho una contribución útil al desarrollo progresivo del derecho internacional público.
The proposition that obligations erga omnes flow from peremptory norms of general international law (jus cogens) is generally accepted since no clear test for the identification and determination of obligations erga omnes exists. This article seeks to propose a tentative legal framework to govern the identification of obligations erga omnes, particularly for norms that have not reached the status of peremptory norms of general international law (jus cogens), or at the very least, determine erga omnes without placing reliance on whether the obligation in question arises from a norm with jus cogens status.
Hierarchy is one of the important topics in contemporary international law, because it reveals the structure of law and the international community and its basic values, and it also contributes to clarifying which sources and rules apply to the conflict brought before the courts or in international relations when dealing in general between states.
The implementation of the principle of hierarchism requires many constants, with specific context and concept variables to reach a satisfactory and reasonable result, and this is where the difficulty is applied to international law, because the latter has a flexible and relative nature in comparison with domestic law, and this necessitated starting in the first part by clarifying the origins of the Hierarchal principle to know how Its formation and what developments have accompanied it over time; Starting with the ancient civilization of Iraq; being the oldest civilization of mankind; Passing through Roman civilizations and Abrahamic laws in the first chapter, then forward in the second chapter to define the concept of legal Hierarchy in modern and contemporary law, by reviewing its foundations on which it was based, and the most important basis is the emergence of the modern constitutional state, and in particular some of the principles that became the backbone of it, such as the principle of supremacy The constitution, the principle of separation of powers and the principle of legitimacy. Which the development in the forms of political systems and systems of government has showed another principles emerging as a result of different practices, which are the principle of the Hierarchy of the main authorities in the state, and the bureaucratic hierarchy in government and administration institutions.
When we trying to develop a legal definition of the principle of hierarchism in internal law, we found that jurisprudence has developed greatly in monitoring the various concepts surrounding the aspects of the principle of hierarchism, and one of the most important theories in contemporary law was formed, which it is the pure theory of law, famous known by the theory of the Hierarchy of legal rules, led by the Austrian philosopher Hans Kelsen, Which caused a great conceptual and information revolution, and jurists started between supporters and opponents to discuss its foundations and principles, and this led to the emergence of another theory by several jurists, led by French jurists such as Carr de Malberg, Michel Trooper, and Joseph Sieys. A theory of the Hierarchy of legal acts that examines the contrast between the Hierarchies of Legal rules and the authorities in the state and the bureaucratic hierarchy in its institutions, and after reviewing and analyzing all of the above, we came to the conclusion that there are two general standards that can be used in the detection of Hierarchy, namely the formal standard and the objective standard.
After completing the clarification of the origins of the principle and its method of formation and crystallization in the first part, we proceeded to the second part to apply the concept of hierarchism in general international law, and it is not surprising that the application differs significantly from the internal law, and we began in the first chapter by reviewing and analyzing the different theories that justified the existence of a hierarchism in the public international law, and how to apply it in light of a highly decentralized and multi-legislator system, and the absence of a comprehensive judicial system binding on all states in the international community. We found theories that establish the formal Hierarchy, which is the second part of Kelsen's theory, which explains Hierarchy at the international level, and constitutional theories of international law that focus on Highlighting the existence of a constitution in international law according to certain concepts, such as the fundamental rules that show how international law was established, and the concept of the international public order consisting of peremptory rules, and then we moved to the theories that establish the existence of an objective hierarchy concerned with the essence and quality of the rules and the basic values they contain representing the main goal of Contemporary international law, which has transformed from a law of coexistence into a law of organization and coordination for the purpose of establishing common values and foundations among all states in society. These theories were represented by the theory of the British philosopher Herbert Hart in law, in which he explained his concept of the legal system in general and sees that it is the result of a union of what he called the primary rules and secondary rules, while the primary rules impose certain duties, the secondary rules give certain powers in order to apply the first, and then We reviewed one of the emerging modern theories, which is the relativistic normative theory, which focuses on the essence of law significantly, and which indicated the existence of a value hierarchy in international law, whereby the most fundamental values occupy the top of the pyramid and then progressively descend, and it can be said that they all led to the same downstream, but from points of Multiple view.
Then, in the second chapter, we set out to apply what we have reached in terms of Hierarchy to the sources of public international law, by fixing the concept of sources in the philosophy and theory of public international law, then on the Hierarchy between the various types of customs and treaties, and we came to the supremacy of the general custom as it is the most applicable, as it applies towards All states in the international community, followed by general treaties, regional custom, special treaties, then bilateral custom and bilateral treaties, and one of the results of this Hierarchy is that it is not possible to change, amend or abrogation one of the sources except by applying a rule of parallel forms, that is, if the sources are equal or that one of them is higher in Hierarchy.
After that, we reached the practical field of Hierarchy, which is the Hierarchy between the rules, and we have found rules that are distinguished by their superiority, and nullity is the penalty for violating them, which are peremptory rules, which consist of Jus Cogens, which are objective rules, and obligations Erga omnes, which are the procedural rules that ensure the implementation of Jus Cogens and repel flagrant violations of them with cooperation of the international community as a whole, then we moved to a set of Jus Dispositivum rules of necessary precedence that surpasses other Jus Dispositivum rules, which are the rules of the United Nations Charter in accordance with Article 103 of the Charter, and the rules that may not be reserved, then we reviewed some of the means that states use to derogate from the rules The general international law, which is the persistent objection and the permissible reservation, and then we moved to study the consequences of the existence of the Hierarchy between the rules, which is the invalidity of the rules contrary to the peremptory norms, and the priority of enforcing obligations Erga omnes regarding gross violations of peremptory norms, and the exclusion of conflicting rules or their integration, and we found that contemporary international law is concerned with By implementing the principle of integration of rules and limiting the exclusionary effects of other principles and rules, that is because the absence of the superior authority to states in the international community, and to enable international law to applicable towards all states in the international community at the same level.
O objetivo do artigo é analisar o movimento de ataque às instituições internacionais a partir do caso da Venezuela na visão da teoria denominada backlash e os prejuízos à cláusula democrática no sistema interamericano de direitos humanos. O trabalho abordará a situação da Venezuela perante o ordenamento jurídico doméstico e diante dos sistemas internacionais de proteção aos direitos humanos para contextualizar os efeitos do backlash no sistema interamericano, bem como as consequências da denúncia dos tratados internacionais e a retirada da Organização Internacional para a cláusula democrática e para a prevalência dos direitos humanos. O desenvolvimento do trabalho seguirá o método dedutivo, com a análise jurisprudencial e doutrinária relativa ao tema, no sentido de afirmar que não pode um Estado exonerar-se do dever de cumprir com os direitos humanos em razão da universalidade desses direitos, do direito transnacional e da globalização.
Since the second circuit's 1980 decision in Filartiga v. Pena-Irala, federal courts have generally recognized that violations of international human rights may be pursued under the Alien Tort Claims Act and the Torture Victim Protection Act. In addition, the courts have accepted that an expanding list of prohibited conduct may serve as the basis for such actions. However, there emerged in a series of cases the suggestion, if not the holding, that the remedy provided for by the ATCA is only available for violations of jus cogens norms.A jus cogens norm is a peremptory rule of international law that prevails over any conflicting rule or agreement. Such a norm permits no derogation and may be modified "only by a norm... of the same character" (Vienna Convention on the Law of Treaties, Article 53). While the allegation that such a norm has been violated would be sufficient to invoke federal jurisdiction un the ATCA, that such an allegation is necessary to invoke such a norm is far from clear. As this paper discusses, this distinction matters because there is little consensus regarding what satisfies the term jus cogens. But it is certainly true that many of the human rights violations already accepted as the basis of ATCA claims might not appear on that list.This article addresses this proposed jus cogens limitation on human rights litigation in federal courts. It considers the concept of jus cogens itself; discusses the cases which have considered such a limitation and the extent to which this limitation is required by the ATCA; considers the extent to which international law compels or allows this concept to limit human rights enforcement; and concludes that neither domestic law nor international law supports the application of jus cogens in this context, nor is there any good policy which would argue for the use of jus cogens in a way that would lessen rather than enhance protection of human rights.
- See Giorgio Gaja
See Giorgio Gaja, Jus Cogens Beyond the Vienna Convention, 172, RECUEIL DES
COURs 275, 284 (1981).
Your Honor, I am here today requesting the Court's permission to torture Mr
- Williams
Williams, "Your Honor, I am here today requesting the Court's permission to torture Mr.
The Legality of Torture as a Means to and End v. The Illegality of Torture as a Violation of Jus Cogens Norms under Customary International Law, 12 U. MIAMI INT'L & COMP
- Doe
Doe ": The Legality of Torture as a Means to and End v. The Illegality of Torture as a
Violation of Jus Cogens Norms under Customary International Law, 12 U. MIAMI INT'L
& COMP. L. REv. 301 (2004);