3 mai 2017

OUVRAGE : J. Christófolo, Solving Antinomies between Peremptory Norms in Public International Law

João Ernesto CHRISTÓFOLO

Ius cogens has been a subject of great interest in international law studies. But the inquiry into the collision between peremptory norms has been virtually non-existent. This book aims at addressing this particular doctrinal gap. Antinomies between ius cogens norms may arise in the conflicting simultaneous application of the peremptory norms on human rights, the non-use of force and self-determination. In order to determine how norms of ius cogens might be applied in situations of normative conflict - either apparent or real ones -, the author suggests the use of “weighing and balancing” techniques. After analysing the main theories on the issue, and describing the most commonly accepted peremptory norms in current international law, this work approaches the problem of antinomies between peremptory norms by applying “weighing and balancing” techniques to two case studies.

First, the apparent conflict between the prohibition of the use of force and the prohibition of the most serious violations of human rights and international humanitarian law, as embodied in the notion of “humanitarian intervention”. Second, the real conflict between the prohibition of the use of force and the right to self-determination as conveyed by a hypothetical Israeli-Palestinian peace agreement entailing the partial cession of occupied territories. Norms of ius cogens are known for regulating sensitive and highly axiological matters, as shown by these two case studies. As a result, finding answers to the problem of conflicting peremptory norms is important not only as regards the doctrinal advancement in the field of international law, but also for the purpose of reaching lawful solutions to central concerns of the international community at large.


TABLE OF CONTENTS

Table of cases
Abbreviations
Introduction

Part I. THE PROBLEM OF ANTINOMY IN LAW

Chapter I. Antinomy in Law
Section I. Identifying legal antinomies
Section II. Conflict of norms in public international law
Chapter II. Solving legal antinomies in public international law
Section I. Interpretation as a means of harmonizing conflicting norms
Section II. Meta-rules for solving legal antinomy in public international law
Section III. Insufficiency of traditional methods (meta-rules): the problem of the “hard cases”

Part II. IUS COGENS NORMS IN PUBLIC INTERNATIONAL LAW:
THEORIES AND DEFINITION

  Chapter I. Material theories

Section I. Natural Law Theories
Section II. Public Policy Theories
Section III. Ius cogens as the expression of an institutionalized internationalcommunity
Section IV. Ius cogens as a material representation of ius publicum
Section V. Concluding remarks on Material theories
Chapter II. Hierarchical theories on ius cogens
Section I. The UN Charter and ius cogens
Section II. Concluding remarks on hierarchical theories
Chapter III. Horizontal theories
Section I. Ius cogens as a rule of horizontal collision
Section II. Consensual theories
Section III. Customary theories
Section IV. Ius cogens as the general principles of law and the principles of international law
Section V. Concluding remarks on horizontal theories
Chapter IV. Definition of ius cogens
Section I. The question of the sources of ius cogens
Section II. Non-derogability
Section III. Imperativeness
Section IV. Universality
Section V. Determination of peremptory norms
Section VI. Concluding remarks on the definition of ius cogens
Part III. THE MATERIAL CONTENT OF IUS COGENS  

Chapter I. Ius cogens and the use of force
Section I. Historical development
Section II. The prohibition of the use force as a norm of ius cogens
Chapter II. The principle of Self-Determination
Section I. Historical development and the positive nature of the right to self-determination
Section II. The peremptory nature of the principle of self-determination
Chapter III. Ius cogens and human rights
Section I. The peremptory nature of human rights norms
Section II. The prohibition of Torture
Section III. The prohibition of genocide
Section IV. The prohibition of slavery, the slave trade, and slavery-like practices
Section V. The prohibition of crimes against humanity
Section VI. The prohibition of systemic discrimination
Section VII. The prohibition of the most serious violations of International Humanitarian Law (IHL)
Part IV. ANTINOMY BETWEEN NORMS OF IUS COGENS

Chapter I. Identifying a conflict between peremptory norms
Chapter II. The insufficiency of traditional meta-rules
Chapter III. Antinomy between peremptory norms: a “hard case” in international law?
A typology of antinomies between peremptory norms
Chapter IV. Conclusion 


Part V. COLLISION BETWEEN THE PROHIBITION OF THE USE OF FORCE AND THE PROHIBITION OF THE MOST SERIOUS HUMAN RIGHTS VIOLATIONS: THE PROBLEM OF HUMANITARIAN INTERVENTION

Chapter I. A lingering question: Is unilateral humanitarian intervention legally compatible with the peremptory regime on the use of force?

Section I. A brief historical overview of doctrine
Section II. Humanitarian intervention as lex posterior?
Section III. Humanitarian intervention and ius cogens: the perspective of the UN Charter
Section IV. Humanitarian intervention as lex specialis?
Section V. Conclusion on unilateral humanitarian intervention
Section VI. The concept of “responsibility to protect”
Chapter II. The accumulative process of human rights norms of a peremptory character and the prohibition of the use of force
Section I. Accumulation as a result of legal interpretation
Section II. A real or an apparent antinomy?
Chapter III. Solving the conflict through legal interpretation
Section I. Gross and systematic human rights violations as threats to international peace and security
Section II. A coherent operationalization of the concept of “responsibility to protect” as a result of weighing and balancing
Chapter VI. Conclusion


Part VI: ANTINOMY BETWEEN THE PROHIBITION OF THE USE OF FORCE AND SELF DETERMINATION: THE CASE OF A PEACE AGREEMENT BETWEEN ISRAEL AND PALESTINE

 Chapter I. The illegal character of the Israeli occupation of Palestinian territories
Section I. Illegal occupation of foreign territories through the use of force: an overview
Section II. The Israeli occupation of Palestinian territories: historical overview
Chapter II. Consent to international agreements as an exercise of the right to self-determination by non-self-governing territories
Section I. Could Palestinian consent preclude the effects of the prohibition of territorial acquisition through the use of force?
Section II. Consent of non-self-governing peoples and self-determination
Chapter III. Where the conflict lies: the real antinomy between the prohibition of territorial acquisition by the use of force (prohibition) and the principle of self-determination (permission) as a “hard case” of public international law
Section I. Determining whether there is an antinomy
Section II. A “hard case” in international law?
Section III. Balancing and weighing between the peremptory norms on the prohibition of the use of force and the right to self-determination

Conclusion 

Bibliography



João Ernesto CHRISTÓFOLO, Solving Antinomies between Peremptory Norms in Public International Law, Zürich, Schulthess, 2016 (370 pp.)


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