Scope, Methodology and Systemic Failure of the jus cogens Mechanism: The Disconnect between Morality, State Sovereignty and Autonomy.

 

Most international legal scholarship recognizes that the international legal system upholds a category of higher ethical norms known as peremptory norms in common rhetoric of the international legal profession, “from which no derogation is permitted.”[1] These overriding principles of international law form a body of jus cogens — a Latin term signifying ‘compelling law’— that establishes a framework for resolving disputes over treaty law provisions, which are often based on different rules of international law. Peremptory norms are generally interpreted as restricting the freedom of states. Treaties and principles of customary international law that violate jus cogens can be declared to be void since “their object conflicts with norms which have been identified as peremptory.”[2]

Such is theory, but it is important to consider practice. The force and scope of the jus cogens have been at the centre of a history of debates within the international legal community. A theoretical consensus as to the definitions of its provisions was reached at the Vienna Conference held in 1969; ultimately, its recommendations were codified in Article 53 of the Vienna Convention on the Law of Treaties (“VCLT”) signed in that same year. Unfortunately, it has been suggested that the codified version is relatively vague. As such, there is considerable likelihood that states will disagree as to the scope and application of the norms it describes and, instead, will craft their own interpretations, causing the integrity of the peremptory norms to be diminished. Moreover, with respect to the force of the jus cogens norms, the findings can, in theory, be imposed onto other states. This would inevitably require them to relinquish their sovereign immunity, a fundamental precept of statehood from which many states are not willing to part. As a result, in practice, the jus cogens fuctions erga omnes  in most cases; that is, towards all on the basis of consent.[3] This calls into question its accountability to both the international legal community and the citizens of the world.

This paper will examine the theoretical underpinnings of the role jus cogens norms occupy within the international legal sphere. It will begin with an examination of the scope and methodology surrounding peremptory norms as envisioned by the VCLT. It will then explore how interpretive disagreements negatively impact the ability of jus cogens to protect unassailable human rights. This paper will ultimately maintain that while the efficacy of jus cogens has rightfully come into question, it remains an useful concept in international law.

 

Jus Cogens Norms within and beyond the scope of the VCLT

Most international legal scholars seem to agree that “jus cogens is a mysterious body of international law, whose fundamentals remain veiled.”[4] Alfred Verdross, an Austrian legal scholar, sought a way to unpack the concept by adopting a universalistic understanding of international law. He argued that mankind, as a whole, forms a legal-moral unity anchored in natural law, allowing him to posit mankind’s intrinsic responsibility to jus cogens. He postulated that states had a duty to abide by an ‘ethical minimum’ by undertaking certain ‘moral tasks’, such as the “maintenance of law and order within states, defence against external attacks, care for the bodily and spiritual welfare of citizens at home, and protection of citizens abroad.”[5] These prescriptions of normative behaviour set out to restrict states from violating fundamental rules of public policy that could significantly alter the elemental precepts by which the international legal mechanisms are governed.[6]

This method of thinking originated from the language of the United Nations (“UN”) Charter following the Second World War, primarily over discussions as to the prohibition of the unilateral use of force. This principle, in particular, codified in Article 2 (4) of the Charter is “often seen as the archetypal example of a jus cogens norm.”[7] In fact, the International Law Commission (“ILC”), an agent under the auspices of the United Nations General Assembly, picked up on this thread in the 1950s and attempted to impose a fundamental standard of common values[8] upon state interaction in order to strengthen the effectiveness of international law in areas of so-called common concern. The ILC’s primary goal was to recognize serious abuses of existing international legal norms that stretched beyond the purview of the law of treaties to laws governing state responsibility. After several decades of work, four special rapporteurs of the ILC—James Brierly, Hersch Lauterpacht, Gerald Fitzmaurice and Humphrey Waldock[9]—produced the Draft Articles on the Law of Treaties in 1966, a collection of 75 articles that would eventually culminate in the VCLT of 1969. It followed therefrom that the VCLT was able to codify several fundamental and contemporary international law principles—notably, the jus cogens mechanism under Article 53. This Article pertains to ‘Treaties conflicting with a peremptory norm of general international law’ (jus cogens), and provides that,

A treaty is void if, at any time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.[10]

 

In addition to thus prioritizing the jus cogens norm above treaty provisions, Article 53 attempted to set up four criteria for a norm to gain peremptory status, specifically: (1) status as a norm of general international law; (2) acceptance by the international community of states as a whole; (3) immunity from derogation; and (4) modifiable only by a new norm retaining the same level of status.[11]

The essence of these criteria was reiterated in 1986 at the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations. Discussions occurred as to how to extend the jus cogens framework to the larger international community of states as a whole. Specifically, the Convention “followed the same canons of interpretation as the 1969 VCLT”[12] to attribute the same level of binding authority grasped from jus cogens to the interests of the entire international community, in line with the doctrine of international jus cogens. For instance, in the Nicaragua Case, the International Court of Justice (“ICJ”) clearly affirmed jus cogens as an accepted doctrine of international law. Similarly, the ICJ described therein the prohibition on the use of force as being a “conspicuous example of a rule of international law having the character of jus cogens.”[13] This extension of jus cogens to the larger community of states highlights that all states’ general legal procedures are conducted in the manner of erga omnes, meaning “in the event of their breach, the legal interest of every state is effected, and therefore states are entitled to invoke the responsibility of the breaching state.”[14]

 

Sources of jus cogens

As referenced in the Nicaragua Case, the two most commonly used and established sources of law discussed in the peremptory ruling prohibiting the use of force were treaty and custom.[15] It is commonly understood that peremptory norms can be derived from custom or treaty but no other source. However, there are serious flaws in attributing the peremptory nature of jus cogens to treaties or customary international law. Many legal scholars contend that jus cogens cannot explicitly come from treaties, as there is no way to bind a treaty’s parties to willingly modify the treaty terms, nor is it possible to relieve the party from its obligations under the treaty.[16] Furthermore, if universally projected jus cogens rules were to acquire their roots from treaties, all treaties would have to be universally ratified by all parties thereto. To this day, no single treaty has ever been universally ratified, thus calling into question the influence that treaties bear on the jus cogens principle.

In a similar vein, it is problematic to derive the peremptory nature of jus cogens from customary law. Customary rules are only binding insofar as they reflect an opinio juris—in other words, a belief held by the state that it is bound to that rule, as evidenced by state practice and behaviour.[17] States have the opportunity to choose for themselves what constitutes a binding custom. Moreover, in certain circumstances where special customary international law intervenes, customary rules can be replaced, notably in the conclusion of treaties.

Noticeably, in the realm of jus cogens, the rules are not set out in a case-by-case scenario. Rather, they are binding on a universal level across all circumstances and cannot be altered. Moreover, unlike under treaties or custom, jus cogens is unconcerned about a state’s ability to opt out of the responsibilities set out by the norm, as the rule automatically applies to the entire international community of states. Only in rare circumstances wherein a new peremptory norm of equal weight emerges does the potential for modification of the former jus cogens norm arise. The binding nature of the jus cogens principle has been proven to emanate from the “process of customary international law, which is itself a part of international constitutional order.”[18]

Michael Byers, a professor of law at Duke University argues that “opinio juris (or something resembling it) appears to be at the root of the non-detractable character of jus cogens rules, because states simply do not believe it is possible to contract out of jus cogens rules or to persistently object to them.”[19] In other words, states recognize the inherent value of jus cogens rules to the point where they willingly abstain from opting out and, rather, do their best to comply with the normative standard in question.

 

Uncertainty about Norm Status

As indicated, it is generally accepted among international law scholars that jus cogens emerged from customary law and treaties—as encapsulated by the VCLT—in an effort to establish a set of rules to guide humanity on a moral course. Though it is recognized that these peremptory rules are such that no derogation is permitted, the binding character of jus cogens must be evaluated in order to assess its rigour. During the Vienna Convention that saw the creation of the VCLT, the discussions were oriented around the perception that peremptory norms could bind the entire community of states as an entity, irrespective of whether individual states refused to give their consent. This complexity can be spotted in the wording of Article 53 that discusses a peremptory norm as one that is “recognized by the international community of States as a whole.”[20] This interpretation was examined by M.K. Yassen, the former Chairman of the Drafting Committee of the Vienna Conference on the Law of Treaties, who postulated that,

There is no question of requiring a rule to be accepted and recognized as peremptory by all States. It would be enough if a very large majority did so; that would mean that, if one state in isolation refused to accept the peremptory character of a rule, or if that state was supported by a very small number of states, the acceptance and the recognition of the peremptory character of the rule by the international community as a whole would not be affected.[21]

Though Yassen explicitly claimed that no state should have the right to veto, he did concede that the choice words ‘as a whole’ in Article 53 did not, and should not, necessarily imply a deference to unanimity. Indeed, he maintained that,

This certainly does not mean the requirement of unanimous recognition by all the members of the community, which would give each state an inconceivable right of veto. What it is intended to ensure is that a given international wrongful act shall be recognized as an ‘international crime’, not only by some particular group of states, even if it constitutes a majority, but by all the essential components of the international community.[22]

 

Representatives of other nations at the Convention expressed similar views. The United States’ representative concurred that, “the recognition of the peremptory character of a norm would require, at a minimum, absence of dissent by any important element of the international community.”[23] Australia bolstered the American position by stressing that “rules could only be regarded as having the status of jus cogens if there was the substantial concurrence of states belonging to all principal legal systems.”[24]

Insofar as the jus cogens mechanism affirms the necessity for mandatory acceptance and recognition by the international community of states ‘as a whole,’ there are contentions as to what constitutes ‘a whole.’ On this basis, if we accept the premise that unanimity is not an acceptable measure to use in order to validate ‘norm status,’ how many actors need to subscribe to the rule before it officially acquires norm status? One way of tackling this question is to use Martha Finnemore and Kathryn Sikkink’s ‘norm life cycle’[25] as a conceptual lens and measurable basis with which ‘norm entrepreneurs’ can portray emerging norms to the onlooking international community in order to successfully achieve ‘norm status.’

Presumably, as states accept a custom that has satisfied their standard of opinio juris, and as more states get on the bandwagon and accept the norm as binding on them, even states that had previously discredited the rule[26] recognize the norm reaches a ‘tipping point.’ Unfortunately, some scholars argue that no matter how successful the ‘tipping principle’ may be, there will always be ‘persistent objectors’, which are states that refuse to accept the custom. ‘Persistent objectors’ pose a threat to the very fabric of jus cogens, since the lack of consensus results in lost traction and conjures up a slippery slope that could lead to grave consequences for the international community at large.[27]

At the same time, though, ‘persistent objectors’ will always be out there. The question is whether it is likely that universal acceptance will ever be secured. H.L.A. Hart contends that, “they will always be blocking norm status at every turn. [In fact], there has not been anything like the acceptance of an international rule of recognition.” [28] Irritatingly, dissenters will have an unfair advantage in the international legal arena, as they will be able to ‘free ride,’[29] while benefitting from the “adherence of others to a custom to which they themselves do not adhere.” [30] The question remains as to what effect, if any, this derogation has on the overall integrity of jus cogens.

Chiefly, it will be important to tally up the impact of those in affirmation of jus cogens and what impact that has on the virility of peremptory norms. Since the jus cogens mechanism affirms the necessity for mandatory acceptance and recognition by the international community of states ‘as a whole,’ it will be important to define what constitutes ‘a whole’ in order to proceed with evaluation of success. On this basis, if we accept the premise that unanimity is not an acceptable measure to use in order to validate norm status, which ‘norm entrepreneurs’ are relevant in the discourse? What constitutes the ‘tipping point’ in norm creation between emergence and acceptance?

Though there may not be definitive answers to these questions, Annika Björkdahl, a Professor in the Department of Political Science at Lund University who specializes in norm entrepreneurship, maintains that “the broader the consensus[31]on the moral values that underpin the norm is, the more influential [the norm] will be.”[32] However, while jus cogens norms give us cause to be hopeful that higher order values resonate across cultural, political, and economic divides through their fundamental appeal to improving the human condition, a constraining shortcoming remains that principles are not necessarily irrevocable prima facie but can be modified, despite their binding character. Such modifications reveal that despite a willingness to accept jus cogens, peremptory norms remain hostage to consent or ‘willing acceptance.’ Yet, in most cases of adherence to jus cogens, it is the morally normative argument underpinning the hypothetical consent that does the work, not the practices of states.

These points notwithstanding, one cannot simply cast out the usefulness of jus cogens rules. The principle bore relevance in the decision of the French-Mexican Claims Commission in the 1928 Pablo Nájera Case,[33] as well as in the decision made by Judge Schüking of the Permanent Court of International Justice in the 1934 Oscar Chinn Case [1934] PCIJ 2 (12 December 1934).[34] In other instances, judges of the ICJ brought forward the concept of jus cogens as referenced in the VCLT in several dissenting opinions. In a 1993 Bosnian case, Judge Lauterpacht claimed that the Security Council had breached its mandate to uphold the prohibition of genocide by imposing an arms embargo on Serbia and Bosnia.[35] Though a few years later UN Security Council Resolution 713[36] was passed to formally endorse the arms embargo, the Security Council was unable to stop the mass atrocity from taking place, resulting in ethnic cleansing, genocide, and large-scale human sufferings.

In another case, throughout the negotiating process of the United Nations Convention on the Law of the Sea (“UNCLOS”), the legal status of the seabed came under heavy contention. Throughout the Cold War, the majority Group of 77—a contingent of developing countries—offered proposals that represented the interests of mankind as a whole, justifying principles proclaimed by the 1970 United Nations General Assembly resolution on the seabed as grounds for jus cogens. Despite outbursts from a small minority of Western states, particularly over the legal status of the seabed, in its rationale, the Group of 77 claimed that the welfare of mankind was a customary rule that had “the force of a peremptory norm, thereby following the premise that unilateral legislation and limited agreements were illegal and were, therefore, violations of this principle.”[37]

The aforementioned examples showcase that the framework of jus cogens as set out in the VCLT can help shed light on precarious situations where violations of jus cogens would result in significant repercussions for the existing international legal constructs at play. Though the appeal of jus cogens stems from a normative disposition that attempts to protect unassailable human rights on a universal scale, there remain, to be sure, many systemic flaws.

 

Reconciling jus cogens with State Immunity

The universal adherence to jus cogens demands a critical examination of the tension between a desire to promote universal human rights norms and state immunity, a fundamental principle of international law. This doctrine is used by states to claim that certain tribunals or courts do not have jurisdiction over them. This principle clashes with jus cogens and results in a double standard, as states willingly decide to obey the prescriptions of jus cogens behavior yet refuse to be held accountable in front of a court for abuses of the rules.

Prior to the Second World War, subjecting a foreign state to another state’s legal norms and practices accounted as a potential justification for war.[38] As a result of the atrocities committed during the war, however, the prioritization of human rights entered the international legal sphere. Notably, with the establishment of the UN, the construction of human rights norms began to overtake the militaristic imperative of national security that had prioritized the overall function of the state. Though much progress has been made, notably through the efforts of the ILC, the list of egregious jus cogens violations—genocide, slavery, maritime piracy, torture, refoulement, wars of aggression and territorial aggrandizement—does not provide a rigid, systemic mechanism that can concretize a precise definition of jus cogens.

It has been hard to do away with state immunity, as arguably states are not particularly successful in coming to terms with their crimes. This resistance has started to wane, however, particularly after the ruling made by the Supreme Court of the United States in the Samantar v. Yousuf case of 2010. Therein, the U.S. Supreme Court ruled that the Foreign Sovereign Immunities Act of 1976 (“FSIA”), the US statute governing the sovereign immunity of foreign states, did not cover the immunity claims of individual foreign officers. In fact, increasing amounts of human rights advocates and legal scholars have begun to lean towards a similar position, positing that state immunity should not trump serious human rights violations—that belief system being “artificial, unjust, and archaic.”[39] These new standards are slowly being adopted and are showing an affinity “to expand so as to become, in the long run, a general practice supported by opinio juris and crystallized in a new rule of customary international law.”[40] In particular, the ILC has consistently argued that death or personal injury at the hands of a state resulting from a jus cogens violation, particularly the prohibition on torture, should result in immediate dismissal of state immunity. [41]

As for now, however, states strongly cling to Westphalian ideals of autonomy and sovereignty. For the most part, American courts have openly renounced claims that a foreign state should be denied immunity due to an alleged conviction of having breached a human rights norm, which is a jus cogens norm. Regrettably, America is not alone. Courts in Canada, England, and France have upheld the prerogative of state immunity “in respect of civil claims for damages brought against foreign states for serious human rights violations, even when the infringed norms were part of the jus cogens catalogue.”[42] For instance, in the case of Al-Adsani v Government of Kuwait and Others,[43] the contention that jus cogens should supersede the principle of state immunity failed in a decision of 9-8, when the majority of the judges ruled that the breach of the jus cogens rule on the prohibition of torture did not warrant a refusal for state immunity in civil suits.

Clearly, the task of entertaining jus cogens discourse in a domain plagued by principles of international law, whose roots are heavily grounded in history, will be an arduous one at best. Altering the rules of the system will not be simple, especially as many states use those doctrines of international law as tools that allow them to retain the status in the international legal playing field they occupy in the present day.

 

Conclusion

The integrity of jus cogens norms and the influence they retain has come under immense pressure and, fortunately, scrutiny. While many scholars and government officials claim that a set of peremptory norms is a meaningless classification—a mere relic of international law—many others, such as Brownlie, argue that while the whole category may simply be an “empty box”, it is still useful “for without the box, it cannot be filled.”[44]

 

 

 

 

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[1]Francisco Forrest Martin, Stephen J. Schnably, Richard J. Wilson, Jonathan S. Simon, Mark V. Tushnet, International Human Rights & Humanitarian Law (New York: Cambridge University Press, 2006), 40.

[2]Theodore Meron, “On a Hierarchy of International Human Rights,” The American Journal of International Law 80, no. 1 (January 1986), 14.

[3]Barcelona Traction, Light and Power Company, Limited, Judgment, ICJ Reports 1970, http://www.icj-cij.org/docket/files/50/5387.pdf, 3, 32.

[4]Asif Hameed, “Unravelling the Mystery of Jus Cogens in International Law,” British Yearbook of International Law 84, no. 1 (2014), 10.1093/bybil/bru023, 2.

[5]Larry May, Crimes Against Humanity: A Normative Account (Cambridge: Cambridge University Press, 2005), 32.

[6]Michael Byers, “Conceptualising the Relationship between Jus Cogens and Erga Omnes Rules,” Nordic Journal of International Law 66, no. 2 (1997), 10.1163/15718109720295265 , 2-3, 211, 219-220.

[7]James A. Green, “Questioning the Peremptory Status of the Prohibition of the Use of Force,” Michigan Journal of International Law 32, no. 2 (2011), 10.5040/9781472565266, 216.

[8]Ioana Cismas, Religious Actors and International Law (Oxford: Oxford University Press, 2014), 267.

[9]Ian Brownlie, Principles of Public International Law (Oxford: Oxford University Press, 1998), 607-608.

[10]Hameed, “Unravelling the Mystery of Jus Cogens in International Law”, 5.

[11]United Nations, “Vienna Convention on the law of treaties: Article 53,” Union Nations-Treaty Series (1980), https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I-18232-English.pdf, 344.

[12]1986 Vienna Convention on the Law of treaties between States and Organizations or between International Organizations , ILM 25 (1986).

[13]Gennady M. Danilenko, “International Jus Cogens: Issues of Law-Making,” European Journal of International Law 2 (1991), 42, 44, supra note 2 at 42.

[14]Thomas Weatherall, Jus Cogens: International Law and Social Contract (Cambridge: Cambridge University Press, 2015), 399.

[15]Boleslaw Adam Boczek, International Law (Lanham: The Scarecrow Press, Inc., 2005), 26.

[16]Edwin Egede, Peter Sutch, The Politics of International Law and International Justice (Edinburgh: Edinburgh University Press Ltd, 2013), 60.

[17]J. Craig Barker, “Mechanisms to Create and Support Conventions, Treaties, and Other Responses,” in Conventions, Treaties and Other Responses to Global Issues ed.  Gabriela Maria Kütting (Oxford: Eolss Publishers Co, Ltd., 2009), 52.

[18]Byers, “Conceptualising the Relationship between Jus Cogens and Erga Omnes Rules,” 222, supra note 5.

[19]Kamrul Hossain, “The Concept of Jus Cogens and the Obligation Under the U.N. Charter,” Santa Clara Journal of International Law 3, no. 1 (2005), 78-79.

[20]UN, “VCLT, Article 53, Union Nations-Treaty Series (1980), 344.

[21]UN Convention on the Law of Treaties (UNCLOT) First Session (1968) 472, para. 12 (statement by Mr Yasseen)

[22]Summary Records of the 137th Meeting, [1976] 1 Yearbook of the International Law Commission 73, U.N. Doc. A/CN.4/291 and Add. 1-2.

[23]UNCLOT II, 102.

[24]UNCLOT II, 388, supra note 24.

[25]For more information about Finnemore and Sikkink’s norm life cycle see: Martha Finnemore, Kathryn, “International Norm Dynamics and Political Change,” International Organization 52, no. 4 (1998), 10.1162/002081898550789, 887-917.

[26]Annika Björkdahl, “Norms in International Relations” Cambridge Review of International Affairs 15, no. 1 (2002), 10.1080/09557570220126216 22.

[27]Alina Kaczorowska, Public International Law (Milton Park: Routledge, 2015), 37.

[28]Larry May, Jeff Brown, Philosophy of Law: Classic and Contemporary Readings (Chichester: Blackwell Publishing Ltd., 2010), 56, supra 53.

[29]May, Brown, Philosophy of Law, 65.

[30]May, Brown, Philosophy of Law, 56.

[31]Martin Dixon, Textbook on International Law (Oxford: Oxford University Press, 2013), 38.

[32]Björkdahl, “Norms in International Relations”, 22.

[33]Patrick Dumberry, State Succession to International Responsibility (Leiden: Martinus Nijhoff Publishers, 2007), 367-368.

[34]Ole Spiermann, International Legal Argument in the Permanent Court of International Justice (New York: Cambridge University Press, 2004), 364.

[35]William A. Schabas, Genocide in International Law: The Crime of Crimes (Cambridge: Cambridge University Press, 2009), 527.

[36]For a description about UN Security Council Resolution 713, see: Sufyan Droubi, Resisting United Nations Security Council Resolutions (Milton Park: Routledge, 2014), 96.

[37]UN Conference on the law of the Sea Part XIV, at 112, Doc. A/Conf. 621106 (1980).

[38]Paul B. Stephan, “The Political Economy of Jus Cogens,” Vanderbilt Journal of Transnational Law 44 (2011), 10.2139/ssrn.2623212, 1073-1074.

[39]Adam C. Belsky, Mark Merva, Naomi Roht-Arriaza, “Implied Waiver Under the FSIA,” California Law Review 77, no. 2 (March 1989), 10.2307/3480608, 365.

[40]Sevrine Knuchel, “State Immunity and the Promise of Jus Cogens,” Northwestern Journal of International Human Rights 9, no. 2 (2011), 155.

[41]Report of the Working Group on Jurisdictional Immunities of States and Their Property, U.N. Doc. A/CN.4/SER.A/1999/Add.1 (Part 2), reprinted in Yearbook of the International Law Commission, 149, 172 (1999).

[42]Bouzari v. Iran, 114 A.C.W.S. 3d 57 (Ont. Super. Ct. Justice 2002), aff’d 71 O.R.3d 675 (Ont. Ct. App. 2004), 128 ILR 586, 587-590.

[43]Al-Adsani v. Government of Kuwait and Others, CA,,12 March 1996, 107 ILR 536, 537.

[44]Abi-Saab, “The Third World and the Future of the International Legal Order,” 29 Revue Egyptienne de Droit International (1973) 27, at 53; Andrea Bianchi, “Human Rights and the Magic of Jus Cogens,” The European Journal of International Law 19, no. 3 (2008), 10.1093/ejil/chn026, 491.

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