Thursday, July 25, 2019

The scope and application of jus cogens Dissertation

The scope and application of jus cogens - Dissertation Example It is the objective of jus cogens and erga omnes to promote and preserve the common interests of nations to a much greater extent than the international law. These tenets constitute constitutional rules that describe the basic features of the international legal system. They are also quite influential in determining the manner, in which international law is developed, preserved and modified. In addition, these rules protect civil liberties and human rights that are central to the individuality of the international legal system. A norm is regarded as jus cogens upon being accepted by the countries of the world, in their entirety. However, this does not require unanimous acceptance. Importantly, a few subjects of international law, acting in isolation or in association with other subjects, do not result in jus cogens; nor can they veto a decision of the majority of nations. This research work proves that the principle of jus cogens is procedurally ineffective with respect to the international norms prohibiting torture. The best way to address this issue is for the ICJ to become more proactive and clarify, via its rulings, the inherent ambiguity. In addition, a convention should be framed that implements the peremptory norms in a consistent manner. Jus Cogens Introduction Jus cogens or peremptory norms are uniquely situated in the hierarchy of international law. These norms have a binding effect upon every nation, which is a major difference between them and conventional treaty and international laws. In addition, this binding effect is independent of the willingness of a nation to be bound by these norms.1 As such, Jus cogens can be regarded as a body of rules, when certain fundamental universal principles that have a binding effect upon all the States are created. In addition, these rules should prove to be crucially important for the entire international community. As there is no established international legislative power, implementing competent international peremptory norms has its own peculia r necessity.2 Article 53 of the Vienna Convention on the Law of Treaties, enabled State Parties to implement the concept of jus cogens in positive international law; initiating the utilisation of this notion. Specifically, jus cogens safeguards overriding interests and values of the comity of nations, and averts their deterioration and selective modification. 3 Jus cogens, in the contemporary milieu, finds general acceptance by State practice, as a rule of the traditional international law. This research work comprises of five sections. The first of these relates to the historical development of jus cogens. The second section describes the methods for identifying

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