Human Rights Legal Framework

International law, in both its theoretical and practical dimensions, must consistently adapt to its dynamic nature. One of the most significant transformations has been in the realm of human rights, a shift that began in earnest after World War II and has continued to evolve, particularly in response to historical events such as the Holocaust and more recent crises in regions like Kosovo, Iraq, and Libya. These developments have imbued international law with a renewed purpose and function, yet they also highlight the often conflicting principles that govern the field.

The definition and application of both international law and human rights law are continually challenged by these evolving circumstances.

General Overviews

Research on jus cogens, a fundamental concept in international law, can be categorized into several predominant trends, each reflecting different theoretical foundations and practical approaches. Jus cogens, rooted in the principles of natural law, represents a collection of powerful norms that enforce fundamental values, constraining states in an objective manner rather than by voluntary agreement. Its acknowledgment within positive international law is frequently viewed as indicative of the moral advancement and maturity of the international legal system.

In an idealistic vein, Kolb (2001) envisions jus cogens as a foundational framework upon which an emerging international community can cultivate a robust normative hierarchy and articulate its core principles. Similarly, Orakhelashvili (2006) explores the potential of jus cogens to enhance the fairness and efficacy of international law. Conversely, another perspective posits that jus cogens is merely a reflection of state consensus, emphasizing voluntarism as a practical approach, as highlighted by Hannikainen (1988). This view contends that jus cogens' authority is grounded in the decisions of states and is sometimes seen as the sole means to impart rationality to the concept. Finally, a group of skeptics, including Schwarzenberger (1965), questions the practicality and ideological undertones of jus cogens, reflecting a more realist approach. The diversity of views on jus cogens is further exemplified by the array of articles in Tomuschat and Thouvenin (2006).

Jus Cogens: Peremptory Norm

Jus cogens, or "compelling law," refers to norms that are impervious to derogation through specific agreements. This concept, rooted in Roman law, underscores that certain legal rules are indispensable due to the fundamental values they protect. Although there is widespread recognition of jus cogens in international law, opinions differ regarding its precise content, sources, and impact. Despite ongoing debates, jus cogens is referenced in multiple legal instruments, notably the 1969 and 1986 Vienna Conventions on the Law of Treaties, which render treaties conflicting with jus cogens void (Articles 53 and 64).

While there is no universal consensus on which norms qualify as jus cogens or how they achieve this status, it is widely accepted that they include prohibitions against genocide, maritime piracy, slavery and the slave trade, torture, refoulement, and wars of aggression. Scholarly discourse has recently introduced the notion of regional jus cogens, highlighting the evolving nature of this concept.

Domestic Human Rights Norms

Human rights are inherently linked to all individuals, irrespective of nationality, residence, gender, ethnicity, religion, language, or any other status. These rights are inherently interrelated, interdependent, and indivisible. In countries like Kenya, human rights are enshrined and protected by law through treaties, customary international law, and other international legal sources. International human rights law imposes obligations on governments to act in ways that uphold and protect the fundamental rights and freedoms of individuals and groups.

International Human Rights Norms

International human rights are often codified in law through treaties, principles, and other legal sources, which mandate governments to promote and safeguard the fundamental rights and freedoms of individuals and groups. The Universal Declaration of Human Rights (UDHR), adopted by the United Nations General Assembly on December 10, 1948, established a common standard of achievement for all nations. Although non-binding, the UDHR has served as an international Magna Carta, inspiring the development of binding human rights treaties.

Unfortunately, the non-binding nature of the UDHR has contributed to ongoing human rights violations worldwide, underscoring the need for stronger enforcement mechanisms.

Crimes Against Humanity

The Rome Statute, under Article 5, limits the International Criminal Court's jurisdiction to the most severe crimes of international concern, including genocide, crimes against humanity, war crimes, and the crime of aggression.

Case Law

War Crimes

In the case of "The Prosecutor v. Abdallah Banda Abakaer Nourain," the International Criminal Court (ICC) confirmed war crimes charges against Abdallah Banda in March 2011. Although Banda initially appeared voluntarily, an arrest warrant was later issued due to his absence. The ICC's inability to try individuals in absentia highlights challenges in international criminal justice.

Similarly, the case against Jean-Pierre Bemba of the Central African Republic ended with his acquittal on June 8, 2018, highlighting the complexities of proving war crimes and crimes against humanity.

The post-election violence in Kenya in 2007/2008 also exemplifies the difficulty of securing convictions in cases involving high-profile individuals, as seen in the case of "The Prosecutor v. Uhuru Muigai Kenyatta," which was closed due to insufficient evidence.

Torture

The case of "Agiza v. Sweden" is a significant example of the absolute prohibition of torture. Ahmed Agiza, an Egyptian national, was deported from Sweden despite the risk of torture in Egypt. The UN Committee on Torture found Sweden in violation of Article 3, emphasizing the non-derogable nature of the prohibition on torture.

Slavery

The case of "Koraou v. Niger" demonstrates the application of jus cogens norms in combating slavery. Ms. Hadijatou Mani Koraou was sold into slavery as a child and faced significant legal challenges in asserting her rights. The ECOWAS Community Court of Justice recognized slavery as a human rights violation, setting a precedent for future cases.

Conclusion

In conclusion, jus cogens encompasses domestic human rights norms by addressing international human rights and humanitarian law. Ensuring that individuals involved in crimes against humanity are accorded their humanistic rights is essential in combating terrorism and other international criminal law violations. This recognition of jus cogens as a foundational element of human rights law underscores its vital role in shaping a more just and equitable international legal order.

Did you like this example?

950

50