Peremptory Norms in International Law

Abstract

This monograph analyses the questions raised by the legal effects of peremptory norms of international law (jus cogens), reflected in Article 53 of the 1969 Vienna Convention on the Law of Treaties. A comprehensive study of this problem has been lacking so far in international legal doctrine. Peremptory norms, although often criticised and even more often approached with sceptical nihilism, nevertheless attract growing doctrinal and practical attention, and have increasing importance in determining the permissible limits on the action of State and non-State actors in different areas. In view of this overriding impact on what might otherwise be instances of the law-making process, peremptory norms concern a constitutional aspect of international law. Peremptory norms are non-derogable norms, and the concept of derogation is among the key concepts analysed here. Derogation from peremptory norms can be attempted in a wide variety of situations, but if peremptory norms are to operate as norms and not merely as aspirations, they must generate consequences that are also peremptory. This effects-oriented character of peremptory norms is examined in a variety of fields. The hierarchical superiority of peremptory norms is not limited to the sphere of primary legal relations, but becomes most crucially relevant after a specific peremptory norm is breached. A norm's peremptory character is relevant not only for its substance but also for its consequences; peremptoriness consists primarily in the capacity to impact through its effects upon conflicting acts, situations and agreements.

Jus Cogens Norms in International Space Law

“…Jus cogens norms practice in the international space law is out of the question at all. However, according to the fair remark of Alexander Orakhelashvili the absence of practice and refusal of justice to make references to the legal principle do not mean that this principle does not exist (Orakhelashvili, 2009). We should agree with this remark and in my opinion this excessive myphologization of the jus cogens norms negatively affects the progress of international legal doctrine and the system of international law itself.…”

“…II). In his major work "Peremptory norms in international law" Orakhelashvili also mentions that "jus cogens norms embody a transcendent common good of the international community" and their purpose is to protect interests and values which are common for all States and other subjects of international relations (Orakhelashvili, 2009). Despite the fact, that presented opinions are characterized by different categories and notions, which are used to define jus cogens norms, all above-mentioned authors agree that peremptory norms serve the purpose and protect legal interests, which are common for the members of international community and are required to maintain international legal order.…”

“…Orakhelashvili notices that "this natural law of nations is necessary, because Nations are absolutely bound to observe it. Such law "is not subject to change" by agreement of states or unilaterally" (Orakhelashvili, 2009).…”

Crimea’s Separation from Ukraine: An Analysis of the Right to Self-Determination and (Remedial) Secession in International Law

“…158 In even stronger terms, Alexander Orakhelashvili, has argued that the application of the principle of territorial integrity 'necessarily outlaws secession without the consent of the parent state'. 159 Such an understanding of the principle of territorial integrity, however, seems to be too far-reaching considering the cautious language employed by the relevant sources. When reading the Friendly Relations Declaration's safeguard clause carefully, it is striking that it merely indicates that the 'dismemberment' or 'impairment' of the territorial integrity of a State is not 'authorized' or 'encouraged'.…”

Injustice ignored: a case study of the irregular sea migration of the Rohingyan boat people

“…In the absence of explicit consent to be bound, resort to international customary norms on the right to life, free movement, and the principle non-refoulement are in order. These human rights "… are not just individual rights; they are rights not disposable by States, individually or in consort" and enjoy a peremptory character Orakhelashvili (2006). Dame Rosalyn Higgins also believes that these human rights are so fundamental that they are nonderogable Higgins (1976)(1977).…”