強行規範と国家免除：強行規範研究（一）

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  • Jus Cogens and State Immunity : When They Meet with the Legal Process of Resolving Violation ofHuman Rights
  • キョウコウ キハン ト コッカ メンジョ キョウコウ キハン ケンキュウ 1

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This article is not the fi rst time to research the problem about “jus cogens and state immunity meet with the legal process of resolving of violationa of human rights ”, because I tried to clearing the problem in my another article “Who Has the Authority to Arrest Saddam Hussein, When He was Iraqi President ? ”before fi ve years ago. In that article I noticed the relationaship between jus cogens and state immunity. Now in this article I tried to analyze the two functions, jus cogens and state immunity. The two international norms are different, of course, but when we use them to judge the violation of human rights, which one is superior that confuses us. Jus cogens is a superior norm, and also a premptory norm too, already became a principle. May be we can say that it is not difficult to apply jus cogens. But it is not easy to judge the tort that came from the violation of human rights or from the resposibility of state. Finaly, I have to say the Japanese courts could not apply jus cogens, so they could not make any conclusions to judge the violation of human rights that occured during the World War Ⅱ . So the victims could not to win the suit, that is be called to“postwar compensation trial”. 　 I thanks the Italian, Germany, American, and another foreign scholars and lawyers. We use different languages to think about same problem, the relationaship between jus cogens and state immunity

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