This article is written by Damini M.
This article has been published by Sneha Mahawar.
Table of Contents
Introduction
The best organization that can address the interests of all states, and all peoples, is the United Nations, whose membership comprises practically all the States in the world. States can advance human progress by utilizing this all-encompassing, essential tool by acting in the best interests of through identifying shared interests and pursuing them jointly with their citizenry. The United Nations was established as a body to safeguard humanity. Following the end of two world wars, governments began to share an interest in building and preserving a peaceful world that all states and people might enjoy. Respect for the sovereignty and equality of all nations served to highlight this interest. Jus cogens, a concept of international law that safeguards the most significant values and interests of the community, is based on the recognition of the shared interests of states. The latin term “jus cogens” (sometimes known as “ius cogens”) literally translates to “compelling law”, they are peremptory norms and no derogation is allowed for such acts even if they are allowed in any treaty. It is based on the Roman legal principle that because of the basic principles they uphold, some legal requirements cannot be disregarded. This article focuses on the issue of peremptory norms (jus cogens), formulated in the 1969 Vienna Convention on the Law of Treaties, and their effectiveness. It thus examines the nature of jus cogens and its enforcement in international law and the powers and limitations of the Security Council with respect to jus cogens.
What is jus cogens
Jus cogens, often known as “compelling law,” is an absolute attribute that attaches to a rule and is binding on all states. This means that no deviations from the rules will be permitted, not even for reciprocity-related reasons. By describing how it can act as a check on one of the most powerful institutions in the world the United Nations Security Council this dissertation aims to show the genuine importance of jus cogens. Jus cogens were adopted into the Vienna Convention on the Law of Treaties (VCLT) provisions, which helped to clarify the application and application of the customary concept. According to the VCLT, any rule or conduct that conflicts with a rule of jus cogens is void ab initio Due to the fact that no international actor may take any action that might be considered to have violated jus cogens, this provides jus cogens with some real force. Even while there is no complete list of jus cogens norms, there are a number of standards that have been unmistakably recognised by society as possessing this highest status. Both the proscription on the use of aggressive force and the freedom of individuals to self-determination are crucial values recognised as jus cogens and safeguarded by the UN Charter. Given that there is no agreement among nations as to what constitutes a human right, human rights norms are more complicated. Exploring jus cogens and its conditions is a fascinating theoretical exercise, but until the principle is used in exercise, it might not be very useful. The Security Council has taken decisions that have resulted in outcomes that are inconsistent with jus cogens numerous times since its founding. This should render the action invalid, but that hasn’t always been the case. Jus cogens has greater authority and could provide a more effective check on the Council because any act that conflicts with it is void from the beginning. In instances of incorrect decisions, this gives the Courts and Member States additional authority.
What is the effectiveness of jus cogens
Finding a strong legal foundation for some substantive norms becomes more difficult when they are recognised as jus cogens, not Art. 53 of the VCLT. One may look for such a legal foundation in a treaty, custom, or general principles of law in the framework of theory on the sources of international law. Jus cogens are universal standards that the entire international community of states accepts and recognises, therefore specific standards, including regional and bilateral ones (even if they forbid any derogations), shouldn’t be regarded as the foundation for peremptory standards. Determining when these standards progressively become accepted as part of customary law and become general norms or if they conform to broad treaty provisions is a challenge. In this scenario, certain rules will just serve as the foundation (approval and recognition) of jus cogens. But by themselves, they won’t provide a strong enough foundation. Finding the legal foundation for peremptory rules in treaty norms with a general scope appears more logical. Even in this situation, one must use caution. In other words, treaty standards should be included in more than simply a standard multilateral Jus Cogens in Contemporary International Law treaties.
If one follows the traditional definition of custom, it would be necessary to demonstrate, in the context of jus cogens, that there is widespread, continuous, uninterrupted, and long-standing practise of states, from which a particular rule of conduct emerges, along with a conviction that such a rule is binding and of a peremptory character (double opinio iuris). Showing a general, continuous, long-lasting practice, on the other hand, might be incredibly challenging, if not impossible. The ICJ’s decision in the Nicaraguan case from 1986, which allows a practice that is not completely consistent as the basis of custom, is not especially helpful. It’s possible that there is no such thing as practice, defined as an active attitude toward subjects of international law.
On the other hand, there might only be instances where crucial conventions have been broken. When peremptory norms are treated as traditionally understood norms of customary law, the question of whether it is acceptable to have a persistent objector at the stage of norm formation (in the case under analysis, both during the process of forming the norm and during the process of recognising its peremptory character, if these two processes occur at different times) arises. If one adheres to the traditional meaning of custom, it is debatable whether or not a persistent objector should be excluded from an institution. An argument to prevent its identification as a customary norm or peremptory norm can always be used to claim that a peremptory standard does not yet exist. Acceptance of the objection, however, is not a viable choice in light of Art. 53 of the VCLT (as well as the works of the International Law Commission). This would imply that the development of a peremptory norm cannot be prevented by the objection of a single state or a small group of states.
One critique can be related to the possibility of judicial imperialism (judicial arbitrariness), which is the scenario in which a court or courts impose on states what ought to be regarded as the peremptory norm (what is jus cogens in the opinion of a court). On the other hand, one can contend that jus cogens can spread and be accepted through court-to-court discussion, which will help it become more firmly established and gain genuine legitimacy. Furthermore, it can be argued that peremptory rules cannot be derived from conventional international law sources. Accepting the notion that there is a new (or rather ancient) source of international law—the international legal conscience (a type of natural law)—which is applicable to the international community at large and can be referred to as modern natural law—seems to be the only viable option.
Peremptory standards (and the responsibilities that flow from them) are typically thought of as being applicable to all subjects of international law or all states.But occasionally, a judgment is made that transcends this comprehension. For instance, the IACHR held that jus cogens, by its definition and development, is not limited to treaty law but has expanded to encompass general international law, including all legal acts, and has an influence on the fundamental principles of the international legal order. This was stated in its advisory opinion on the legal status and rights of undocumented migrants from September 17, 2003. In particular, the idea of equality and non-discrimination permeates all state actions and is a peremptory standard “inasmuch as it applies to all States, whether or not they are parties to a particular international treaty, and gives rise to effects with regard to third parties, including individuals. The decisions of international criminal courts make this increased effectiveness of jus cogens even more apparent. One of the effects of jus cogens at the individual level is a responsibility on the part of a state to look into, prosecute, punish, and extradite anyone accused of violating jus cogens norms (in this case, extraditing A. Furundzija), as the ICTY held in the case A. Furundzija of 10 December 1998.
What are the issues faced in the enforcement of jus cogens
The most significant factor from the perspective of jus cogens application is to the procedural possibilities for its enforcement. Only treaties were used to address these difficulties (arts. 65 and 66 VCLT). According to VCLT Article 65.3 if a challenge has been made to a claim intended to invalidate a treaty, the parties may turn to the peaceful procedures of resolving disputes set forth in Article 33 of the UN Charter. However, Art. 66(a) of the VCLT stipulates that the following procedure should be followed if the parties have not reached an agreement within 12 months of the date the objection was raised:
Unless the parties mutually agree to arbitrate the problem, any party to a disagreement about the implementation or interpretation of Articles 53 or 64 may, by writing application, refer the matter to the International Court of Justice for a ruling.
On the other hand, there is a fundamental difference between the existence and binding force of obligations arising under international law and the existence of a court or tribunal with jurisdiction to resolve disputes about compliance with those obligations, as emphasised by the ICJ in the Case concerning the application of the Convention on the prevention and punishment of the crime of genocide of 26 February 2007. The absence of a court or tribunal of this kind does not imply that the responsibilities do not exist. They continue to be valid and have legal effects. States have responsibilities under international law, including international humanitarian law, and they are nonetheless liable for any actions that violate that law and can be linked to them.
The aforementioned assertion is crucial for international law under the current procedural context (lack of general and obligatory jurisdiction with regard to jus cogens), and consequently, for the fulfilment of jus cogens-based responsibilities and accountability for its infringement.
The question of whether immunity is regarded as a component of substantive or procedural law is of utmost significance in the context of the link between jus cogens and jurisdictional immunity. In terms of substance, it would be challenging to establish that a state’s or its officials’ immunity (either criminal or civil) should take precedence in the event of a violation of a peremptory rule. Contrary to those who seek the highest level of jus cogens effectiveness, this understanding of the connection is false. The immunity defence largely includes a procedural component, which should be discussed in light of the potential for pursuing a claim for a jus cogens breach.
In a case involving Germany and Italy, the International Court of Justice correctly stated: “Assuming for this purpose that the provisions of the law of armed conflict prohibiting the killing of civilians in occupied territory, the deportation of civilian residents to slave labour, and the deportation of prisoners of war to slave labour are provisions of jus cogens, there is no conflict between those provisions and the provisions on State immunity.” The two sets of regulations cover various topics. State immunity laws are procedural in nature and are limited to assessing whether or not one State’s courts may have jurisdiction over another State.
They have no bearing on the issue of whether the behaviour that gave rise to the proceedings was legal or not.
The principle outlined in Article 41 of the International Law Commission’s Articles on State Responsibility cannot be violated because, for the same reason, recognising the immunity of a foreign State in accordance with customary international law does not equate to recognising as legal a situation caused by the violation of a jus cogens rule or providing aid and assistance in maintaining that situation.
The question of whether immunity should be unlimited or limited is obviously a very different one given the significance of the value that the peremptory rule protects and the general acceptance of that standard.
Are the criterion under jus cogens sufficient
Regarding the function of the basic criterion in the determination of jus cogens standards, scholars disagree. One aspect of the doctrine consistently makes the case that jus cogens cannot be distinguished without the prohibition of derogation. On the other hand, there is a perception that this standard is categorically insufficient and even misleading in the practice of international law (as well as among some professors). This position is reflected in the ILC’s activity as well as in the viewpoints held by some international organisations. The Commission has rejected the notion that a treaty provision “possesses the character of jus cogens solely because the parties have indicated that no derogation from that provision is to be authorised” in its commentary to Art. 50 of the draught VCLT. Any treaty may include this clause with regard to any topic for any reason that the parties may deem appropriate. The treaty is not nullified merely because the clause is broken.
The specific characteristics of the subject matter that the prohibition protects are crucial. The Commission adopted a similar stance in its guidelines on reservations to treaties and interpretative declarations (2010), where it made a distinction between reservations that violated a jus cogens rule and reservations that were made in response to provisions relating to the non derogation of rights (guidelines 3.1.9 and 3.1.10). In doing so, it cited a number of sources, including General Comment No. 24 (1994) of the UN Human Rights Committee on the subject of reservations made upon ratification or accession to the Covenant or the optional protocols if such a relationship was rejected. Additionally, the school of international law occasionally asserts that the ban against derogation is an effect of jus cogens rather than a standard for identifying it.
This strategy assumes that the international legal system has two types of rules that forbid derogations: jus cogens and jus dispositivum. Jus dispositivum also falls into two categories: those that forbid deviation and those that authorise it. There is a great deal of confusion as a result, which could even be dangerous for protected entities (especially individuals), as it leads to a relativization of the minimum set of norms that are regarded as non-derogable, even in circumstances that are particularly dangerous for the operation of a state, such as in times of war. Whatever the assessment of the relationship between the prohibition of derogation and jus cogens, the situation discussed above (i.e., jus cogens only pertains to those norms which are non-derogable and which, at the same time, protect fundamental values of a universal nature) further strengthens the case for the perception of a close relationship between the formal and sociological criterion, and by extension, also a criterion of special content for such norms.
What are the powers and limitations of the Security Council’s with respect to jus cogens
The issue of enforcement is one of the main barriers to applying jus cogens to the Security Council. In Certain Expenses, when this topic was covered, Judge Morelli found that the Council had de facto “absolute legality” because no court system had been formed to hold it accountable. The majority concluded that the presence of a judicial body was not necessary for the existence or application of jus cogens to the Security Council.
The enforcement issue
Given that the Security Council only started to become seriously active during the Cold War, it is not unexpected that the issue of enforcement against the Council has not been thoroughly investigated. The UN Charter was written with a series of clauses that, when taken together, would place some restrictions on the Council’s use of its authority. The Council’s ability to make judgments is constrained by Articles 24, 25, and 39. However, because of their ambiguity, particularly Article 39, these rules have become ineffectual. Instead of states being utilised by the Security Council to advance international goals of peace and security, members now use the Security Council as a weapon to further their own national interests. It is reasonable to assume that the UN’s founders would not have expected the Security Council to use its authority in this manner. Enforcing jus cogens compliance is more crucial than ever because Security Council resolutions are no legal enforceability (under Articles 25 and 103) States might be required to carry out illegal Council instructions if there is no way to enforce the law. This result is obviously unsatisfactory.
Determinations of invalidity and non-binding nature
It is commonly accepted that the ICJ’s judicial examination of the Security Council’s decisions would include a determination of a resolution’s legality. The review would serve as an impartial, substantive evaluation of the viability of a resolution, with a focus on court examination of any jus cogens norm violations. This raises the issue of how violations of jus cogens principles are void ab initio and how the ICJ is unable to render any decisions that are legally enforceable on the Security Council. The Court lacks the authority to declare a resolution unlawful since they lack the authority to render any conclusive legal judgments regarding actions that are ultra vires (outside the purview of the Security Council’s founding document).
Conclusion
Jus cogens is a very significant principle of international law that, when applied properly, ensures the safeguarding of the most crucial values in the community of nations that make up the international system. Giving this idea genuine weight requires creating a standard by which to judge norms. Accepting jus cogens as a tool to defend the important principles and beliefs of the international community opens the door to a standard that can declare any international legal standard peremptory, provided it satisfies all the necessary criteria. This prevents the principle from having an overly narrow scope or becoming imprisoned in positive law. The Security Council can only be held to the rule of law if there is some sort of external accountability in place. It is not rational and has not been successful to rely on certain political aspects of the Security Council itself to serve as valid checks and balances. Important doubts are raised about the ICJ’s jurisdiction and the ability of states to decide whether something is legal on their own. Jus cogens clearly has legal significance. It is strong in principle and has a great deal of potential to be strong in practice. International law is, of course, such that what is described in theory may not necessarily be what happens in practice. Despite the effects of globalisation, states continue to act in their own national interests and occasionally deviate from accepted legal standards. This is not to suggest, however, that international law and thought cannot have any importance. Practice cannot progress without such influential work. Before it can be applied, the rule of law must be established.
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