This article is written by Muskaan Garg from Symbiosis Law School, Pune. This article explains the international principle of jus cogens and the various instances of its existence and authority. It also encircles the various views and important cases around the matter.

Introduction

Jus cogens, also known as the peremptory norm, is a fundamental and overriding principle of international law. It is a Latin phrase that translates to ‘compelling law’. It is absolute in nature which means that there can be no defense for the commission of any act that is prohibited by jus cogens. These norms, though limited, are not cataloged. They are derived from changing social, political attitudes and major case laws and are not defined by any authoritative body.

This principle aims to seal the slightest suppression of any law in any form and manner. 

Idea of development

The idea of universal jurisdiction and individual responsibility for violations of international law developed largely with the laws of war. A major step in the development of universal jurisdiction for jus cogens violations is the War Crimes Convention which requires states to provide for universal jurisdiction. The War Crimes Convention enumerates war crimes and expands the definition of crimes against humanity as set out in the Nuremberg Charter during World war II.

What is Jus Cogens?

Jus cogens or peremptory norm means a body of fundamental principles of international law which binds all states and does not allow any exceptions. It is basically a compilation of norms that lays down the international obligations which are essential for the protection of the fundamental interest of the international community and any violation of these norms is thereby recognized as a crime against the community as a whole.

It is binding upon all the members of the international community in all circumstances. Jus cogens imply absolute restrictions on genocide, slavery or slave trade, torture or other inhuman treatment, prolonged arbitrary detention, and racial discrimination. Any activity or treaty carried out by the states or international organizations that contradict human dignity and rights will offend the concept of jus cogens and thus, be void. It can be said that jus cogens exist to protect and uphold human dignity and rights.

Origin of the doctrine

It stemmed from the idea of a binding law which would be in alignment with natural law and would render contrary customs and treaties invalid. This idea led to the existence of hierarchical superior norms that would invalidate the treaties and customs. The doctrine of Jus cogens was initially defined in Article 53 of the Vienna Convention on the law of treaties 1969. It was later stated as a customary principle but Article 53 of the Vienna Convention, however, contains no reference to any element of practice.

What is Jus Positivism?

Jus positivism, when translated from Latin, is legal positivism which refers to the human-made laws that define the establishment of specific rights for an individual or group. It is basically the laws made by the state for the swift, efficient and proper functioning of the state itself.

Difference between Jus Cogens and Jus Positivism

 The only difference between jus cogens and jus positivism is that the former is a set of norms applicable internationally while jus positivism is the phenomena of formulating laws for the state which shall be applicable within the state only.

Jus cogens and jus positivism stay at debate since their applicability is contradicting each other. Jus cogens are mandatory, constant and binding on all states irrespective of their consent while jus positivism is not binding and can be changed from time to time. An aspect of universal jurisdiction is personal jurisdiction by all states over the alleged violator of such crimes, hereby keeping the norm of jus cogens at a higher pedestal than jus positivism.

Article 2(6) and Article 53 of the Vienna Convention 

Article 2(6) of the Vienna convention deals with the definition of a ‘contracting state’. It mentions that ‘contracting state’ means that a state has consented to be bound by the treaty, whether or not the treaty has entered into force. It is in regard to the non-parties of the UN and states that they shall act in accordance with the principles so far as may be necessary for the maintenance of international peace and security. It is a mandatory provision and has set a limit, determined by the general interest of the international community.

Article 53 of the Vienna convention is the origin of the principle of jus cogens. It states that a treaty is void if, at the time of its conclusion, it conflicts with the peremptory norm of general international law. The norm should be accepted and recognized by the international community of states as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of international law having the same character.

Article 64 of the Vienna Convention 

Article 64 of the Vienna convention deals with the emergence of a new peremptory norm of international law. It states that if a new peremptory norm of the international law emerges, any existing treaty which is in conflict with that norm becomes void and is terminated.

Criticism of Jus Cogens

This principle has been mainly criticized for its superiority, practical implementation and the obligation upon the states to follow it:

• The doctrine of international jus cogens developed from the principles of natural justice. These norms are actually a set of rules where no derogation is allowed under any circumstances and they cannot be abrogated. They are argued to be hierarchically superior because the power of a state to make treaties is subdued when it confronts a super customary norm of jus cogens. The point of criticism being that these norms are putting limitations on the ability of states to change or introduce an international law.
• The second point of criticism being about the consent and obligation of states to follow the norm. The states which are a part of the international community have to mandatorily comply with the norms, regardless of their consent and their individual opinion to be bound. They are not provided with an option to choose since these rules are too fundamental for states to escape responsibility. States consider these rules to be so important to the international society of states and to how the society defines itself that they cannot conceive  an exception and cannot, therefore, escape liability.
• As known, international laws and decisions only have an advisory role and none of their provisions are enforceable as the law of any state. Hence, when it comes to the enforceability of jus cogens, the states under an obligation have not initiated any noticeable provisions for the implementation of the same which raises numerous queries on the existence and requirement of the widely recognized norms.
• Problems also remain as to the application of the norm, in terms of which rules must necessarily be covered under the said norms. There were serious doubts concerning the fact that the norm could be misused in interpreting the rules to be covered under jus cogens.

Oppenheim’s view 

Professor Oppenheim of Cambridge University has republished treatise in his name for nine editions. His treatise begins with major definitions and works towards all aspects of international law at a time when not much was certain and progressive about international law.

In his book, he mentioned that a number of other universally recognized principles of international law existed in the jus cogens with the capability to render any conflicting treaty void and therefore, the norm of jus cogens was unanimously recognized as a customary rule of international law.

Therefore, obligations which are at variance with universally recognized principles of International Law cannot be the object of a treaty.

Bosnian Case: View of Justice Lauterpacht 

In the case of Bosnia and Herzegovina v Serbia and Montenegro [2007], Serbia was alleged to have attempted extermination of the Muslim population of Bosnia and Herzegovina which led to violations of the Convention on the Prevention and Punishment of the Crime of Genocide, thereby invoking an article of the genocide convention. It was unanimously held in this case that Serbia was neither directly involved nor was complicit in it but it rather committed a breach of genocide convention by failing to prevent it from occurring, he genocide convention being a part of jus cogens.

In this case, Justice Lauterpacht was in favour of the decision and defined jus cogens as a concept which is superior to both customary law and treaty as it stands on the very fundamentals of natural law and humanity. He also associated jus cogens with the general principles of law and said that irrespective of its origin, jus cogens encircles all the fundamentals of a necessary law at the international level and hence, is the superior-most in  hierarchy. 

Views of Prof. Michel Byers and David Kennedy 

Professor Michel Byers quoted a somewhat similar definition as that of Professor Oppenheim. He focused on  conceptualizing the relation between jus cogens and erga omnes rules. Erga omnes obligations are those in which all states have a legal interest because the subject matter is of importance to the states and the international community as a whole. In case of a breach in these obligations, every state is considered justified in invoking responsibility upon the guilty state that committed the internationally wrongful act.

According to David Kennedy, jus cogens was termed as the super-customary norm. In fact, there are two views which dominate the foundation of the concept of  jus cogens. The first view is that jus cogens originated directly from international law and the second view is that it is based on one of the existing sources of international law.

Customary international law is an aspect of international law involving the principle of customs. It basically means that the principles and reasonable ideologies which the society has been practising since time immemorial should be given the status of international law and should remain operational  at all times and circumstances.

Hence, terming jus cogens as a super-customary norm justifies both the concepts of the foundation of jus cogens.

Nicaragua case

In the case of the Republic of Nicaragua v. the United States of America, the U.S. decided to plan and undertake activities against Nicaragua. Armed interventions were led by the U.S. in Nicaragua and they also undertook the military and paramilitary forces in and against Nicaragua.

It was held by the International Court of Justice that the U.S. could not rely on collective self-defense to justify its use of force against Nicaragua. The United States violated its customary international law obligation of not to use force against another State when it directly attacked Nicaragua. The Court has also noted that while it may be aware that political aspects may be present in any legal dispute brought before it, the purpose of recourse to the Court is the peaceful settlement of legal disputes. The Court of Justice upheld the essential justiciability of even those disputes raising issues of the use of force and collective self-defense.

This case introduced the principle of opinio juris in international law, which states that it is an opinion of law or necessity. It is a necessary element within customary laws and acts as a defense as if the acts have done were of necessary or lawful opinion. In this case, it was noticed that the actions of the U.S. were not in alignment with this principle.

Pablo Najera case

An early decision referring to the concept of jus cogens is the Pablo Najera case where the issue was an arbitral award named Pablo Najera between France and Mexico. The question of the concerned case was the registration of treaties and sanctioning of invalidity in the event of non-registration. Mexico had raised the issue of non-registration by France in the Franco-Mexico compromise as a preliminary objection. The President of the Arbitration Commission characterized the obligation as non-derogatory and used the principle of jus cogens to justify it.

Conclusion

The jus cogens norm has retained its strong position since 1969. The principle of jus cogens has generated hope that developing standards of law would result in a higher realization of justice in domestic actions and in an enhanced outlook for justice, peace, and cooperation among nations. A major result of that hope has been the increasing vitality of the principle of jus cogens and its developing dominance in international law. The use of jus cogens in human rights actions should overcome the court invoked barriers to redress the grievances and should act as a compelling factor in the progressive enforcement of human rights.

References

• https://ruwanthikagunaratne.wordpress.com/2012/11/15/nicaragua-vs-us-case-summary/
• https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1011&context=scujil
• https://books.google.co.in/books?id=04swDwAAQBAJ&pg=PA9&lpg=PA9&dq=Pablo+N%C3%A1jera+(France)+v+United+Mexican+States+facts&source=bl&ots=rZxVHiAcIF&sig=ACfU3U1dxBMb-w2a_0uYCAfs2V6c63Z-wQ&hl=en&sa=X&ved=2ahUKEwjVz4qH4bjnAhXDZCsKHUWpCBYQ6AEwB3oECAcQAQ#v=onepage&q&f=false

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