HUMAN RIGHTS ENFORCEMENT VIA PEREMPTORY NORMS – A CHALLENGE TO STATE SOVEREIGNTY

Sumber: Predrag Zenovic, 2012, Human Rights Enforcement Via Peremptory Norms – A Challenge To State Sovereignty, RGSL Research Papers, No. 6, Riga Graduate School of Law.

Berikut disajikan Abstrak dari Paper di atas berjudul:

HUMAN RIGHTS ENFORCEMENT VIA 
PEREMPTORY NORMS –

A CHALLENGE TO STATE SOVEREIGNTY

This research paper is focused on the issue of peremptory norms (jus cogens), formulated in the Vienna Convention on the Law of Treaties, and its applicability in human rights implementation. Jus cogens, ʺcompelling law,ʺ is the technical term given to those norms of general international law that are argued to be hierarchically superior. There is an intrinsic correlation between peremptory norms and human rights. Peremptory human rights norms, as projections of individual and collective ethics, being the fundamental principles of the international community, materialize as powerful collective values. This analysis is focused on the legal impact of these norms. If certain human rights can be considered jus cogens it subsequently brings superior procedural effects to their implementation in relation to the principles associated with state sovereignty.

The research examines the nature of jus cogens and its formation vis‐a‐vis human rights and elaborates on the additional value that jus cogens can bring to human rights implementation. The central part of the study is devoted to human rights which are affirmed as jus cogens and the different aptitude of certain rights (social, economic, cultural) to gain peremptory character.

The focal problem that the research addresses is the lack of will or capabilities of certain states to implement human rights, and the barrier to human rights implementation imposed by the doctrine of state sovereignty. This is mainly reflected in jurisdictional issues, immunities of the state and state officials, and extradition. The principle of sovereign immunity, although it remains an inviolable tenet of international law subject to no exceptions for grave international crimes in national case law, has no legal ground to supervene jus cogens. The argumentation clearly stems from the normative hierarchy advocated in international case law and doctrine.

The author firmly believes that the jus cogens concept brings a significant contribution to human rights implementation, putting them at the foundation of the international legal order. This effect is procedural but on the other hand substantial to future human rights development.