MultiRights Seminar: The Multi-Level Supervision of Human Rights and Jus Cogens: A Case for Special Consideration?
Matthew W. Saul will be presenting one of his latest works in collaboration with the MultiRights project.
The concept of peremptory international legal norms (jus cogens) is about the fundamental values of the international community. It is therefore understandable that human rights figure prominently in the debates surrounding which norms have jus cogens status. Certain scholars argue that all human rights have jus cogens status. Others prefer a more cautious, list based approach, with the right to self-determination, the prohibitions of torture, slavery, and racial discrimination, being some of the more generally accepted examples. This working paper addresses how human rights supervisory bodies at the national, regional, and universal levels have dealt with the identification of jus cogens norms. It seeks to highlight and develop a clearer understanding of the manner in which supervisory bodies have adapted the practice of norm identification to accommodate the unique nature of the jus cogens concept. The analysis considers not only the extent to which there is evidence of a special approach to the identification of jus cogens norms, but also how the approach taken relates to the credibility of human rights supervisory bodies and the notion of jus cogens as mechanisms for the protection of human rights. This latter element provides a basis for thinking about whether there is scope for practice in this field to be improved. The paper proceeds with an account of the debate surrounding the jus cogens concept in international law, particularly its implications for the protection of human rights. This leads to consideration of three elements of the norm identification process that might be expected to vary for the jus cogens context: general strategy, technical issues, and judicial co-ordination. The paper then turns to how the identification of jus cogens norms has been dealt with in the practice of the supervision of human rights. A central argument of the paper is that certain features of the jus cogens concept (such as universality, contested nature, and value for human rights protection) provide a basis for human rights supervisory organs to develop a special approach for the identification of norms with this status.
For more information and distribution of the seminar's material please contact our project coordinator.