International law, Sixth edition
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International Law MALCOLM N. SHAW
(Jus Cogens) in International Law, Helsinki, 1988. See also article 26 of the ILC’s Articles
on State Responsibility, 2001, and below, chapter 16, p. 944. 238 Yearbook of the ILC, 1966, vol. II, p. 248. See, as regards the prohibition of torture as a rule of jus cogens, the decision of the International Criminal Tribunal for the Former Yugoslavia in the Furundˇzija case, 121 ILR, pp. 257–8 and 260–2; Siderman v. Argentina 26 F.2d 699, 714–18; 103 ILR, p. 454; Ex Parte Pinochet (No. 3) [2000] 1 AC 147, 247 (Lord Hope), 253–4 (Lord Hutton) and 290 (Lord Phillips); 119 ILR, pp. 135, 200, 206–7 and 244, and the Al-Adsani case, European Court of Human Rights, Judgment of 21 November 2001, para. 61; 123 ILR, pp. 24, 41–2. See also, as regards the prohibition of extrajudicial killing, the decision of the US District Court in Alejandre v. Cuba 121 ILR, pp. 603, 616, and as regards non-discrimination, the decision of the Inter-American Court of Human Rights in its advisory opinion concerning the Juridical Condition and Rights of the Undocumented Migrants, OC-18/03, Series A, No. 18 (2003). 239 See e.g. Lord Slynn in Ex Parte Pinochet (No. 1) who stated that ‘Nor is there any jus cogens in respect of such breaches of international law [international crimes] which require that a claim of state or head of state immunity . . . should be overridden’, [2000] 1 AC 61, 79; 119 ILR, pp. 50, 67. s o u r c e s 127 of states, crossing ideological and political divides. 240 It is also clear that only rules based on custom or treaties may form the foundation of jus cogens norms. This is particularly so in view of the hostile attitude of many states to general principles as an independent source of international law and the universality requirement of jus cogens formation. As article 53 of the Vienna Convention notes, a treaty that is contrary to an existing rule of jus cogens is void ab initio, 241 whereas by virtue of article 64 an existing treaty that conflicts with an emergent rule of jus cogens termi- nates from the date of the emergence of the rule. It is not void ab initio, nor by article 71 is any right, obligation or legal situation created by the treaty prior to its termination affected, provided that its maintenance is not in itself contrary to the new peremptory norm. Article 41(2) of the ILC’s Articles on State Responsibility, 2001, provides that no state shall recognise as lawful a ‘serious breach’ of a peremptory norm. 242 Reserva- tions that offended a rule of jus cogens may well be unlawful, 243 while it has been suggested that state conduct violating a rule of jus cogens may not attract a claim of state immunity. 244 The relationship between the rules of jus cogens and article 103 of the United Nations Charter, which states that obligations under the Charter have precedence as against obli- gations under other international agreements, was discussed by Judge Lauterpacht in his Separate Opinion in the Bosnia case. 245 He noted in Download 7.77 Mb. Do'stlaringiz bilan baham: |
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