David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
Criminal Law and Philosophy 4 (3):249-265 (2010)
For hundreds of years procedural rights such as habeas corpus have been regarded as fundamental in the Anglo-American system of jurisprudence. In contemporary international law, fundamental norms are called jus cogens. Jus cogens norms are rights or rules that can not be derogated even by treaty. In the list that is often given, jus cogens norms include norms against aggression, apartheid, slavery, and genocide. All of the members of this list are substantive rights. In this paper I will argue that some procedural rights, crucial for the fair functioning of criminal proceedings, such as habeas corpus, should also have the status of jus cogens norms. I will begin by explaining what it means for a right to have jus cogens status. And I will follow this with a defense of having procedural rights like habeas corpus added to the list of jus cogens norms. I will then rehearse some of the debates about the jus cogens status of procedural rights in the European Commission on Human Rights. At the end of this paper, I will look at the attempts to deal with the abuses at Guantanamo by the American Commission on Human Rights, and by the US and Australian courts, as a way to understand why there needs to be a stronger support for habeas corpus than is today provided by regional courts.
|Keywords||Habeas corpus Jus cogens Equity Procedural rights Guantanamo|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
References found in this work BETA
Larry May (2007). Crimes Against Humanity: A Normative Account. Cambridge University Press.
Larry May (2007). War Crimes and Just War. Cambridge University Press.
Larry May (2008). Aggression and Crimes Against Peace. Cambridge University Press.
Henry Shue (1983). Basic Rights. Revue Philosophique de la France Et de l'Etranger 173 (3):342-342.
Citations of this work BETA
No citations found.
Similar books and articles
Matthew Lister (2011). The Legitimating Role of Consent in International Law. Chicago Journal of International Law 11 (2).
Graham Parsons (2012). The Incoherence of Walzer's Just War Theory. Social Theory and Practice 38 (4):663-88.
Lindsay Farmer (2012). Paul D. Halliday: Habeas Corpus. From England to Empire. [REVIEW] Criminal Law and Philosophy 6 (2):273-275.
P. Takis Tridimas & Jose A. Gutierrez-Fons, EU Law, International Law and Economic Sanctions Against Terrorism: The Judiciary in Distress?
D. Boucher (2012). The Just War Tradition and its Modern Legacy: Jus Ad Bellum and Jus in Bello. European Journal of Political Theory 11 (2):92-111.
Marc Froment Meurice (2009). Habeas Corpus. Derrida Today 2 (1):66-83.
Jordy Rocheleau (2007). State Consent Vs. Human Rights as Foundations for International Law. Social Philosophy Today 23:117-132.
Matthew K. Mulder, Finding the “Eternal and Unremitting Force” of Habeas Corpus: § 2254(D) and the Need for de Novo Review.
Mark Evans (2009). Moral Responsibilities and the Conflicting Demands of Jus Post Bellum. Ethics and International Affairs 23 (2):147-164.
Louis Henkin (1998). Religion, Religions, and Human Rights. Journal of Religious Ethics 26 (2):229 - 239.
Toby Handfield & Patrick Emerton (2009). Order and Affray: Defensive Privileges in Warfare. Philosophy and Public Affairs 37 (4):382 - 414.
Jeff McMahan (2004). The Ethics of Killing in War. Ethics 114 (4):693-733.
Added to index2010-09-13
Total downloads20 ( #142,353 of 1,726,249 )
Recent downloads (6 months)3 ( #231,316 of 1,726,249 )
How can I increase my downloads?