Ius cogens

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Under jus cogens ( Latin for mandatory law , even peremptory norm written) is defined as the part of the legal system that does not waived may be (as amended by other agreements or declarations). In addition to private law , the term is mainly used in international law . The opposite term is the ius dispositivum ( mandatory right ).

Significance in international law

In international law, ius cogens is the term used to describe those legal clauses which, in contrast to soft law, represent mandatory international law and which stand in the hierarchy of norms above international treaties and above customary international law . They have an absolute effect (effect inter omnes ). The theoretical basis of this category of norms is, on the one hand, natural law , and, on the other hand, the conviction of all states that these legal clauses represent an indispensable foundation for a coordination system.

The existence of the ius cogens is denied by some authors. One of the most important codifications of international law, the Vienna Convention on the Law of Treaties , presupposes this existence in Art. 53 and Art. 64 and orders the nullity of contractual provisions that contradict ius cogens . Which norms belong to the ius cogens is disputed in individual points. It is undisputed that the general prohibition of violence , the prohibition of genocide , the slave trade , racial discrimination and torture as well as the prohibition of systematic and arbitrary persecution and injury to life and limb belong to the minimum human rights standard of international law.

There are differing views as to whether the ius cogens is superior or subordinate to the decisions of the United Nations Security Council .

In his essay The Right to a Fair Trial ( Art. 6 ECHR ), the legal scholar Rainer Hofmann explains that the right to a fair trial , a fair trial, is one of the fundamental rights of a person who predominantly even has the rank of ius cogens is awarded on the grounds that only strict observance of this right ensures that it is not degraded to a mere object of state law.

See also

literature

Web links

Wiktionary: ius cogens  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. Jost Delbrück , Georg Dahm , Rüdiger Wolfrum : Völkerrecht , Volume I, de Gruyter, 2nd edition 2002, pp. 707 ff.
  2. OpinioIuris / Shajkovci: ius cogens , accessed on August 11, 2016.
  3. ^ Claudia Kissling: Minimum standard of human rights , Humboldt Forum Recht , 2001, p. 81 ff.
  4. Nico Krisch: Self-defense and collective security , Springer, 2001, p. 304 ff.
  5. ^ Rainer Hofmann: § 16. The right to a fair trial. Retrieved May 14, 2019 .