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학술연구/단체지원/교육 등 연구자 활동을 지속하도록 DBpia가 지원하고 있어요.
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In international law, some consider jus cogens and the principle of erga omnes effect are an identical concept expressed in different wordings but others do not. Presumably, this conceptual confusion was made by the expressions in Barcelona Traction case in which the ICJ first introduced the term, obligations erga omnes which derive from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. These enumerations are very similar to the rules which are classified as the peremptory norms of international law so-called jus cogens. That is the reason why those two concepts could be confused. In order to clarify those two concepts, reviews were made on the concepts of jus cogens and the principle of erga omnes effect and the foundations of those concepts. Jus cogens is a norm which shall be observed by all the components of the international society without exception. Jus cogens can only be created by the universal customary inter- national law. Treaties and general principles of law mentioned in Article 38 of the ICJ Statute can not be the source of jus cogens. The rights and obligations created by j us cogens inevitably have the erga omnes effect because it is a rule which should be abide by the international community as a whole. Thus jus cogens is a concept based on the nature of norms. Jus cogens is compared to jus dispositivum which may be altered by the consent of parties. However, although rights/obligations erga omnes may be created by jus cogens, all the norms which create rights/obligations erga omnes can be jus cogens. Treaties and unilateral acts may create rights/obligations erga omnes but they can not be jus cogens. Thus, rights/obligations erga omnes is just a concept which classify the effects of rights and obligations as such.
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참고문헌 (42)
참고문헌 신청
1. [학술지(정기간행물)] - 金奭賢 / 2002 / 國際法上 對世的 權利·義務의 確立 / 국제법학회논총 47 (3) : 3 ~ 76
2. [단행본] - Brownlie I / / Principles of Public International Law, 5th ed / Oxford University Press
3. [학술지(정기간행물)] - Byers M / 1997 / Conceptualizing the Relationship between Jus Cogens and Erga Omnes Rules / Nordic J. of Int'l L 66 : 211 ~ 239
4. [단행본] - Cassese A / 2005 / International Law, 2nd ed
5. [기타자료] - / / Commentaries to the Draft Articles on Responsibility of States for International Wrongful Acts
2. [단행본] - Brownlie I / / Principles of Public International Law, 5th ed / Oxford University Press
3. [학술지(정기간행물)] - Byers M / 1997 / Conceptualizing the Relationship between Jus Cogens and Erga Omnes Rules / Nordic J. of Int'l L 66 : 211 ~ 239
4. [단행본] - Cassese A / 2005 / International Law, 2nd ed
5. [기타자료] - / / Commentaries to the Draft Articles on Responsibility of States for International Wrongful Acts
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