The necessity of reviewing the concept of Fundamental Human Rights as Peremptory Norms of International Law (jus cogens)

Document Type : Original Article

Authors

1 Shahid Beheshti University, School of Law

2 حقوق/دکترا/حقوق عمومی/دانشگاه سوربن فرانسه

10.22034/jlr.2021.220239.1817

Abstract

One of the most significant sources of Public International Law is the Peremptory Norms (jus cogens); According to Article 53 of the 1969 Vienna Convention: "the Peremptory Norm of General International Law is a norm accepted and recognized by the International Community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of General International Law having the same character." Nowadays, the Famous viewpoints of lawyers are that: Fundamental Human Rights became part of the Peremptory Norms of International Law (jus cogens). According to article 4, paragraph 2 of International Covenant on Civil and Political Rights, 1966 (ICCPR), Fundamental Human Rights are those rights, under any circumstances, States cannot violate or restrict them.

This article explains the characteristics of both categories (Peremptory Norms of International Law and Fundamental Human Rights Norms) and makes it clear that the Peremptory Norms of International Law are changeable and can be modified by a subsequent norm of General International Law having the same character, contrary to the fundamental human rights. Therefore, the relation between these two categories of norms is kind of "Generality and peculiarity in some respect" Considering the characteristics of both of them, modifying the Fundamental Human Rights into Peremptory Norms are incompatible with the nature and essence of Fundamental Human Rights. Therefore, instead of putting Fundamental Human Rights in the position of Peremptory Norms, it would be better if they were seen as their immutability position.

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References

  1. Book:

    1. S. McDougal, Harold. Lasswell and Lung-chu Chen. Human Rights and World Public Order: The Basic Policies of an International Law of Human Dignity, First Ed. the US: Oxford University Press, 1980.

    ICJ Case:

    1. The Barcelona Traction, Light and Power Company, No. 50 (ICJ February 5, 1970) p 32, para.34, http://www.icj-cij.org/files/case-related/50/050-19700205-JUD-01-00-EN.pdf last visit 02/11/2019.

    International Instruments:

    1. Vianna International Convention on the law of Treaties 1969.
    2. International Covenant on Civil and Political Rights 1966.
    3. European Convention on Human Rights 1950.
    4. The American Convention on Human Rights 1969.

    UN General Assembly Resolutions:

    1. UN General Assembly, resolution (A/RES/43/131) 1988.
    2. UN General Assembly, resolution (A/RES/45/100) 1990.

    UN Security Council Resolutions:

    1. UN Security Council, resolution (S/RES/688) 1991.
    2. UN Security Council, resolution (S/RES/706) 1991.
    3. UN Security Council, resolution (S/RES/733) 1992.
    4. UN Security Council, resolution (S/RES/746) 1992.
    5. UN Security Council, resolution (S/RES/794) 1992.

     

     

     

     

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History

  • Receive Date: 21 October 2020
  • Revise Date: 15 February 2021
  • Accept Date: 24 February 2021

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