Details
- The first ever comprehensive treatment of peremptory norms in international law
- Examines the basis for the peremptory character of norms, as well as the effect of peremptory norms in a variety of legal fields
- Covers the wide variety of cases and situations in which the relevance of peremptory norms has been raised, including the use of force in an aggressive war
- Combines a systemic analysis with an examination of current issues, bringing together the practical and academic heritage accumulated in different legal traditions and languages
This monograph analyses the questions raised by the legal effects of peremptory norms of international law (jus cogens). 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.
Despite the growing relevance of peremptory norms in practice, doctrine has failed to treat the issue comprehensively and has often been limited to examining specific aspects of the problem, such as the impact of peremptory norms in the law of treaties.
This fresh effort to examine and explain the phenomenon of peremptory norms in key areas fills an important doctrinal gap through presenting in a systematic way the effects of peremptory norms and reappraising the significance of such effects, bearing in mind their overall nature. It also demonstrates that 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.
Readership: Academics, practitioners, and specialists in the fields of public international law, jurisprudence, public law or international relations
- Contents:
- Acknowledgments
- Introduction
- Part I - The Concept and Identification of Peremptory Norms; 1. Peremptory Norms as International Public Order
- 2. The Identification of Peremptory Norms
- 3. Distinctive Characteristics of Peremptory Norms
- 4. Concepts Cognate to Jus Cogens
- 5. Sources and Modification of Peremptory Norms
- Part II - Effect of Peremptory Norms in General International Law; 6. Effect of Jus Cogens in the Law of Treaties
- 7. Peremptory Norms and the Validity of the Actions of States
- 8. Remedies for Breaches of Peremptory Norms
- 9. Peremptory Norms and the Allocation of Jurisdiction to States
- 10. Peremptory Norms and State Immunity
- 11. Problems of Subsequent Validation of Breaches of Jus Cogens
- Part III - Peremptory Norms and the Powers of International Organisations; 12. The Nature and Scope of Jus Cogens Limitations on the Security Council's Powers
- 13. The Normative Conflict between a Security Council Resolution and Jus Cogens: the Practice of the Security Council
- 14. Legal Consequences of the Conflict of Security Council Resolution with Peremptory Norms
- Part IV - Peremptory Norms and the Powers of International Tribunals; 15. Peremptory Norms and International Judicial Jurisdiction
- 16. Jus Cogens and the Standing to Bring Judicial Claims
- 17. Impact of Jus Cogens on Friendly Settlement and Discontinuance of Cases
- Part V - Effect of Peremptory Norms in National Legal Systems; 18. Techniques of Interaction of International Jus Cogens with National Law
- 19. Peremptory Norms and Acts of Foreign States in Private International Law
- Conclusion
- Appendices ;
Alexander Orakhelashvili, Junior Research Fellow, Jesus College, Oxford
"...the grand monograph of Orakhelashvili, which is indisputably a valuable contribution to the development of the doctrine of jus cogens as regards more specific aspects of the concept." - Varro Vooglaid, Finnish Yearbook of International Law
"There is no doubt at all that this is a very powerful, well-argued piece of work, which will become a major point of reference for all international lawyers" - The British Yearbook of International law 2007
"...this book is an excellent and lasting contribution to the study of international law. The author admirably deals with this difficult subject-matter and presents a complete ... analysis of the norms of jus cogens, based on meticulous research." - Malgosia Fitzmaurice, Queen Mary, University of London, in International and Comparative Law Quarterly
