In its recent report, the ILC addressed two main outstanding issues relating to jus cogens norms: the existence of regional jus cogens and the possibility of an illustrative list. The report concludes with draft conclusion 24, which proposes a non-exhaustive list of the “most widely recognised” peremptory norms, such as the prohibition of genocide and aggressive use of force. Peremptory norms are no doubt a “positive part of international law,” yet are still conceptualised by some as “a dramatic (or threatening) magic.” The ILC’s report is perhaps an attempt to concretise jus cogens as, in Kolb’s words, an “operational concept of law”, rather than a mere extension of natural law theory or lofty ideals. This post offers the thesis that, whilst such a mission is admirable, the operation of peremptory norms as envisaged by the ‘hierarchy theory’ remains impeded by the dominance of treaties as a source of international law. Furthermore, this seems unlikely to change in the immediate future because treaties are a primary vehicle for the enforcement of state sovereignty, which remains paramount in an international legal sphere dominated by positivist notions of state consent. The conflict is thus characterised by the dichotomy between realpolitik and international ideals.
{"title":"Treaties, Peremptory Norms and International Courts: Is the Hierarchy Theory Treading Water?","authors":"Madeleine Lusted","doi":"10.61315/lselr.84","DOIUrl":"https://doi.org/10.61315/lselr.84","url":null,"abstract":"In its recent report, the ILC addressed two main outstanding issues relating to jus cogens norms: the existence of regional jus cogens and the possibility of an illustrative list. The report concludes with draft conclusion 24, which proposes a non-exhaustive list of the “most widely recognised” peremptory norms, such as the prohibition of genocide and aggressive use of force. Peremptory norms are no doubt a “positive part of international law,” yet are still conceptualised by some as “a dramatic (or threatening) magic.” The ILC’s report is perhaps an attempt to concretise jus cogens as, in Kolb’s words, an “operational concept of law”, rather than a mere extension of natural law theory or lofty ideals. This post offers the thesis that, whilst such a mission is admirable, the operation of peremptory norms as envisaged by the ‘hierarchy theory’ remains impeded by the dominance of treaties as a source of international law. Furthermore, this seems unlikely to change in the immediate future because treaties are a primary vehicle for the enforcement of state sovereignty, which remains paramount in an international legal sphere dominated by positivist notions of state consent. The conflict is thus characterised by the dichotomy between realpolitik and international ideals.","PeriodicalId":514338,"journal":{"name":"LSE Law Review","volume":" 6","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141222208","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Feminist Judgments Project has been utilised in a number of jurisdictions, including the UK, US, Canada and Australia, to critique real-life judicial judgments and to re-write these problematic judgments using feminist judging methodologies. This paper seeks to demonstrate the utility of the application of feminist judging methodologies to judgments and decisions from international criminal law mechanisms, with a specific focus on sexual and gender-based crimes, as a means to improve gender-sensitivity in international criminal judicial decision-making. Through an analysis of feminist judgments and feminist dissenting opinions from the UK, US and International Criminal Court, the main hallmarks of feminist judging are identified. The author uses the hallmarks of feminist judging to create her own Feminist Judgment based on a decision from the Prosecutor v Ongwencase before the International Criminal Court, to display the indeterminacy of judicial decision-making in international criminal law and to demonstrate how greater gender-sensitivity can be achieved at the International Criminal Court through feminist judicial reasoning.
{"title":"How Can the Methodology of Feminist Judgment Writing Improve Gender-Sensitivity in International Criminal Law?","authors":"K. Gooding","doi":"10.61315/lselr.79","DOIUrl":"https://doi.org/10.61315/lselr.79","url":null,"abstract":"The Feminist Judgments Project has been utilised in a number of jurisdictions, including the UK, US, Canada and Australia, to critique real-life judicial judgments and to re-write these problematic judgments using feminist judging methodologies. This paper seeks to demonstrate the utility of the application of feminist judging methodologies to judgments and decisions from international criminal law mechanisms, with a specific focus on sexual and gender-based crimes, as a means to improve gender-sensitivity in international criminal judicial decision-making. Through an analysis of feminist judgments and feminist dissenting opinions from the UK, US and International Criminal Court, the main hallmarks of feminist judging are identified. The author uses the hallmarks of feminist judging to create her own Feminist Judgment based on a decision from the Prosecutor v Ongwencase before the International Criminal Court, to display the indeterminacy of judicial decision-making in international criminal law and to demonstrate how greater gender-sensitivity can be achieved at the International Criminal Court through feminist judicial reasoning.","PeriodicalId":514338,"journal":{"name":"LSE Law Review","volume":" 20","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141221902","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this piece, I discuss the recent case of R v Evans, in which the Court of Appeal allowed the defence to adduce evidence regarding the complainants’ sexual history with third parties in the context of a rape trial. I will assess the academic debate surrounding the controversy the case brought through the expansion of s 41(3)(c) of the Youth Justice and Criminal Evidence Act 1999 to allow such evidence to be adduced. As such expansion has been criticised on the basis that it has created a tension between the complainant’s right to privacy and the defendant’s right to a fair trial, I will outline the criticism of Evans by various academics, addressing whether these criticisms are sound, and put forward my ideas regarding how the problems of Evans can be resolved (i.e. through a cultural change, as opposed to legislative change).
在这篇文章中，我将讨论最近的 R v Evans 案，在该案中，上诉法院允许辩方在强奸案审判中援引有关原告与第三方性史的证据。我将评估围绕该案通过扩大《1999 年青少年司法与刑事证据法》第 41(3)(c)条的适用范围以允许援引此类证据而引发的争议所展开的学术辩论。由于这种扩展被批评为在原告的隐私权和被告的公平审判权之间制造了矛盾，我将概述不同学者对埃文斯的批评，讨论这些批评是否合理，并就如何解决埃文斯的问题（即通过文化变革而非立法变革）提出我的想法。
{"title":"R v Evans: An Uneasy Precedent?","authors":"Ann-Marie Sous","doi":"10.61315/lselr.80","DOIUrl":"https://doi.org/10.61315/lselr.80","url":null,"abstract":"In this piece, I discuss the recent case of R v Evans, in which the Court of Appeal allowed the defence to adduce evidence regarding the complainants’ sexual history with third parties in the context of a rape trial. I will assess the academic debate surrounding the controversy the case brought through the expansion of s 41(3)(c) of the Youth Justice and Criminal Evidence Act 1999 to allow such evidence to be adduced. As such expansion has been criticised on the basis that it has created a tension between the complainant’s right to privacy and the defendant’s right to a fair trial, I will outline the criticism of Evans by various academics, addressing whether these criticisms are sound, and put forward my ideas regarding how the problems of Evans can be resolved (i.e. through a cultural change, as opposed to legislative change).","PeriodicalId":514338,"journal":{"name":"LSE Law Review","volume":" 17","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141222041","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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