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Documenti di Professioni
Documenti di Cultura
Nejra Hodi
National Judiciary & Jus Cogens
Contents
I.
Introduction..............................................................3
Nejra Hodi
National Judiciary & Jus Cogens
I.
Introduction
of
jus
cogens
has
not
followed
the
normative
Nejra Hodi
National Judiciary & Jus Cogens
not to invalidate the treaty, but rather to exclude some treaty provisions
from being functional under circumstances of jus cogens violation.In a
purely technical sense, the jus cogens concept provides a technique for
solving conflicts occurring between different rules of international law
(Linderfalk, 2007). A detailed analysis of two such cases in two different
states will be offered in the following sections.
Nejra Hodi
National Judiciary & Jus Cogens
Nejra Hodi
National Judiciary & Jus Cogens
Nejra Hodi
National Judiciary & Jus Cogens
of
detainees
from
one
country
to
another
in
order
to
Nejra Hodi
National Judiciary & Jus Cogens
Nejra Hodi
National Judiciary & Jus Cogens
Nejra Hodi
National Judiciary & Jus Cogens
continued
to
move
through
different
phases
from
civil
Nejra Hodi
National Judiciary & Jus Cogens
mainly revolved around these two decisions that were analysed. The basis
of the argument was the idea that after the collision of peremptory norm
of torture prohibition and customary norm of state immunity occurs, the
former carries precedence over the latter. Such rulings emphasise the
growing tendencies of national courts to employ the peremptory norms
against the claim of state immunity.
8 On 11 July 2000, a bailiff, after gaining access to the German Goethe Institute,
began assessing the German property there although there was no consent from
Greek Minister of Justice for the seizure of foreign country's assets according to to
Art. 923 of the Greek Code of Civil Procedure. Courts dismissed these efforts as
unlawful. (Bartsch & Elberling, 2003).
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National Judiciary & Jus Cogens
IV. Conclusion
The enforcement of international law, and particularly peremptory
norms, remains a challenge for the future of international legal system.
The application of jus cogens by national judicial bodies constitutes an
important step towards this because they generally remain more effective
than international courts reflecting the still prevalent nation-state structure
of the world. Two cases that were analysed demonstrated two jus cogens
references by national judicial bodies in two different states. The first took
place in Switzerland and dealt with the issue of extradition that could have
created a scene for jus cogens violation. The second dealt with the issue of
demanding compensation from Germany based on the Greek courts
decision which violated state immunity; however, the courts referred to
the alleged peremptory norms breach and invalidated immunity claims.
These two cases seem singled out in the batch of opposing cases where
states residue immune or in power, but they nevertheless prove an
important point. Sovereignty no longer grants absolute independence from
the legal order. International law prevails over the State community as a
whole (Tomuschat & Thouvenin, 2006). If the evolution continues in this
direction, there is an open possibility that this claim would become
accurate. The first step along the way is surely the development and valid
enforcement of the jus cogens.
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V. References
BOOKS
Cassese, A., 2012., ed. Realizing Utopia: The Future of International Law.
Oxford: Oxford University Press.
Fassbender, B., 2009. The United Nations Charter as the Constitution of
the International Community. Leiden: Martinus Nijhoff Publishers.
Tomuschat, C. & Thouvenin, J.M. , eds., 2006. The Fundamental Rules of
International Legal Order. Leiden: Brill Academic Publishers.
De Wet, E., Nollkaemper,A. & Dijkstra, P., 2003. Review of the Security
Council by the Member States. Antwerp: Intersentia.
JOURNAL ARTICLES
Bartsch, K. & Elberling, B., 2003. Jus Cogens vs. State Immunity, Round
Two: The Decision of the European Court of Human Rights in the
Kalogeropoulouet al. v. Greece and Germany. German Law Journal, [online]
Vol. 4 (No. 5), p. 478-490. Available at:
http://www.germanlawjournal.com/pdfs/Vol04No05/PDF_vol_04_no_05_477491_european_bartsch_elberling.pdf [Accessed: 15 December 2014].
Bassiouni, M. C., 1996. International Crimes: Jus Cogens and Obligatio Erga
Omnes. Law and Contemporary Problems, [online] Vol. 59 (No. 4), p. 6374. Available at: http://scholarship.law.duke.edu/lcp/vol59/iss4/6
[Accessed: 15 December 2014].
Bianchi, A., 2008. Human Rights and the Magic of Jus Cogens. The
European Journal of International Law, [online] Vol. 19 (No. 3), p. 491-508.
Available at: http://www.ejil.org/pdfs/19/3/1625.pdf [Accessed: 15
December 2014].
De Wet, E., 2004. The Prohibition of Torture as an International Norm of jus
cogens and Its Implications for National and Customary Law. The European
Journal of International Law, [online] Vol. 15 (No. 1), p. 97-121. Available
at: http://ejil.org/pdfs/15/1/349.pdf [Accessed: 17 December 2014].
Linderfalk, U., 2007. The Effect of Jus Cogens Norms: Whoever Opened
Pandoras Box, Did You Ever Think About the Consequences?. The
European Journal of International Law, [online] Vol. 18 (No. 5), p. 853-871.
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OTHER SOURCES
Crimes of War, 2011. Jus ad bellum, jus in bello. Available at:
http://www.crimesofwar.org/a-z-guide/jus-ad-bellum-jus-in-bello/
[Accessed: 20 December 2014].
Council of Europe, 1957. European Convention on Extradition. Paris.
Available at:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/
file/117678/european-convention-extradition.pdf [Accessed: 18 December
2014].
European Court of Human Rights, 2010. European Convention on Human
Rights. Available at:
http://www.echr.coe.int/Documents/Convention_ENG.pdf [Accessed: 18
December 2014].
International Military Tribunal Nuremberg, 1946. Judgement. Available at:
http://crimeofaggression.info/documents/6/1946_Nuremberg_Judgement.p
df [Accessed: 20 December 2014].
International Tribunal for the Prosecution of Persons Responsible for
Serious Violations of International Humanitarian Law Committed in the
Territory of the Former Yugoslavia since 1991, [1998]. Prosecutor v. Anto
Furundzija, Case No.: IT-95-17/1-T. p. 59. Available at:
http://www.icty.org/x/cases/furundzija/tjug/en/fur-tj981210e.pdf [Accessed:
17 December 2014].
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