Monday, February 13, 2017
MARIO SOARES SOLD INDIGENOUS GOANS THROUGH THE ILLEGAL TREATY OF PORTUGAL AND INDIA - IUS COGENS (PEREMPTORY NORMS) EXPLAINED By A Pereira
Goa, a creation of Portugal which forms a part of the Lusofone belongs not to Portugal and the Indian Union. Goa belongs to Indigenous Goans and not Indians, as also not to the overseas citizens who seek refuge in Goa.
The significance of self-determination in this context is not so much that it cures illegality as that it may allow illegality to be more readily accommodated through the processes of recognition and prescription, whereas in other circumstances aggression partakes of the nature of a breach of Ius Cogens.
An act of violation of a norm having the character of Ius Cogens is illegal and is therefore null and void. This applies to the creation of States, the acquisition of territory and other situations.
As per the Art. 53 of the Vienna Convention on the Law of Treaties 1969, we examine the following in terms of : definition and meaning of the term, origin in the roman law (IUS STRICTUM and IUS DISPOSITIVUM), example of Ius Cogens norms (genocide, crimes against humanity, slavery trade, torture, use of force, piracy, violation of human rights et cetera) and the legal effect of an agreement violating a jus cogens norm: void.
Ius Cogens is the higher and founding set of rules of the international legal system, these rules are compulsory and bind all states as they override any other principles of international law.
The roots of Ius Cogens habitually comes from the Roman Law, where the ancient Rome distinguished between two legal concepts - Ius Strictum on one side and Ius Dispositivum on the other, while the latter allows to ignore certain legal rules by prevailing the consent of the contractual parties, this is not possible with Ius Strictum which pays no attention to the consent of parties when it comes to derogation from certain higher rules.
In modern days the international law granted the following rules, the Ius Cogens label, first the prohibition on the use of force, like an agreement between two states to invade other countries or to pirate other states boats, second prohibiting international crime and atrocity, like committing genocide, crimes against humanity and war atrocities, and rules prohibiting the violation of human rights, like slavery trade agreements between two governments and international convention between two states to co-operate on human trafficking, or a convention between two or more countries to co-operate on torture.
The concept of Ius Cogens is based upon an international acceptance of fundamental and superior values which is similar to the notion of public order in domestic legal systems. As a result, an international convention that conflicts with the Ius Cogens rule is considered void and produces no legal value.