International Law
Mahshid Ajeli lahiji; S. Ali Hosseiniazad; Majid Zahmatkesh
Abstract
Undoubtedly, jus cogens or preemptory norm is always recognized as the highest source of international law. Nevertheless, the judicial review of International Court of Justice caused doubt in the absolute priority of jus cogens when violation of jus cogens and immunity are simultaneously argued in a ...
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Undoubtedly, jus cogens or preemptory norm is always recognized as the highest source of international law. Nevertheless, the judicial review of International Court of Justice caused doubt in the absolute priority of jus cogens when violation of jus cogens and immunity are simultaneously argued in a case. Especially, in the cases concerning the Arrest Warrant (Congo v. Belgium 2002) and the Jurisdictional Immunities (Germany v. Italy 2012), ICJ tried to separate procedural and substantive norms and declared that the norms of immunity and jus cogens are different in nature, thus they couldn’t oppose each other but immunity as a procedural norm could prevent deciding about merits. In this article, by using descriptive – analytic method, the rationale behind the decision of ICJ is analyzed in order to know that if immunity is considered procedural and jus cogens is recognized as substantive norm in international law and how these norms interact. Evaluation of doctrine shows that there is no certainty about the quality of the separation of procedural and substantive norms and their proof in international law. Therefore, the court’s decision in choosing the approach could cause an insecurity in the peremptory place of jus cogens.
S. Ali Hosseiniazad; Mahshid Ajeli lahiji; Majid Zahmatkesh
Abstract
Idealism and Realism have always been under considerations by different fields of studies, inter alia, the law. While Idealism pays attention to the emergence of the ideals, Realism relies on the necessity of the acceptance of existent realities. International law from the prospect of its legal basis ...
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Idealism and Realism have always been under considerations by different fields of studies, inter alia, the law. While Idealism pays attention to the emergence of the ideals, Realism relies on the necessity of the acceptance of existent realities. International law from the prospect of its legal basis has been an obvious area of confrontation of this two schools of thought. The International community tries to reach far and unavailable goals persistently; but, usually has been stuck in the realities of the world order. Nevertheless, international law could also form some ideals as its legal rules. Thus, international law is the place where the two ideas meet. This article is an attempt to find the answer of the question that the legal order of international law depends more on which one of the foregoing schools of thought and by which it has been more impressed. Finally, it will be observed that the international law passes the way to reach its admirable ideals by always considering the realities of the international community.
