Law
alter views
The
Concept of Jus Cogens in International Law
Kamrul
Hossain
Jus
Cogens is the technical term given to those norms of general
international law, that are argued as hierarchically superior,
the literal meaning of which is compelling
law.
These are, in fact, a set of rules, which are peremptory
in nature, and no derogation from them under any circumstances
is, therefore allowed. The doctrine of international jus
cogens is developed under a strong influence of natural
law concepts, which demonstrates that states cannot be
absolutely free in establishing their contractual relations.
They were obliged to respect certain fundamental principles
deeply rooted in the international community. The power
of states to make treaties runs out when it confronts
a super-customary norm of jus cogens. In other words jus
cogens are rules, which correspond to the fundamental
norm of international public policy, and in no way can
they be altered unless a subsequent norm of the same standard
is established. That means the position of the rules of
jus cogens is hierarchically superior compare to any other
ordinary rules of international law. In fact, there are
rules, which are preconditions for effective international
activity for example, pacta sunt servanda. To abrogate
that rule is not possible: a treaty providing that pacta
sunt servanda is mere reaffirmation; a treaty denying
it is an absurdity. The point is that the very activity
of treaty-making assumes the general rule. Rules contrary
to the notion of jus cogens could, therefore, be regarded
as void, as those rules oppose to the fundamental norms
of international public policy. Clearly defined contents
of the rules of jus cogens are not yet likely to be decided
though; existence of such norm is now universally recognised
and well established.
Recognition
of the Norm
During the early nineteenth century, recognition of such
norm was established, as Oppenheim stated that a number
of "universally recognised principles" of international
law existed, which rendered any conflicting treaty void,
and the peremptory effect of such principles was itself
an "unanimously recognised customary rule of International
Law". For example, he stated that a treaty supporting
piracy is void, being contrary to the "universally
recognised principles" of international law. Moreover,
the concept of jus cogens twice found favour in a judicial
context: first, in the decision of the French-Mexican
Claims Commission in the 1928 Pablo Nájera Case;
and then by Judge Schücking of the Permanent Court
of International Justice in the 1934 Oscar Chinn Case.
Subsequently, in a number of separate and dissenting opinions,
judges of the International Court of Justice made similar
references to jus cogens. For example, in Bosnian case
in 1993 judge Lauterpacht expressed his opinion on the
possibility that the Security Council had violated the
genocide prohibition and therewith allegedly jus cogens
when imposing an arms embargo on both Serbia and Bosnia.
Through the resolution 713 (1991) of the Security Council
by which arms embargo was imposed, state's inherent right
of self-defence had been disregarded on one hand, and
on the other hand the Security Council had been unable
to take measures necessary to maintain peace and security
in Bosnia. The consequences of what had necessarily led
to ethnic cleansing, genocide and large-scale human sufferings.
Therefore, the argument of alleged violation of jus cogens
has some potential weight. In the Vienna Convention on
the Law of Treaties has given the recognition of the norms
of jus cogens in Article 53, where it states:
"A
treaty is void, if, at the time of its conclusion, it
conflicts with a peremptory norm of general international
law. For the purpose of the present convention, a peremptory
norm of general international law is a norm accepted and
recognised 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."
That
means a treaty is no longer an international legal document
if, at the time of its conclusion, it conflicts with the
norms of jus cogens, which are peremptory in nature. The
article clarifies the criteria of a norm to be determined
as jus cogens as according to the following four conditions:
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 having the same status.
Hannikainen,
however, demonstrated that if a norm of general international
law protects an overriding interest or value of the international
community of states, and if any derogation would jeopardise
seriously that interest or value, the peremptory character
of the norm may be presumed, but only if the application
of the criteria of peremptory norms produces no noteworthy
negative evidence.
Recognition
of the rules of jus cogens is again confirmed in 1986
at the Vienna Convention on the Law of Treaties between
States and International Organisations or Between International
Organisations. The importance of rules of jus cogens is
also confirmed by the trend to apply it beyond the law
of the treaties, in particular in the law of state responsibility.
The International Law Commission (ILC) proposed the notion
of international crimes resulting from the breach by a
state of an international obligation "essential for
the protection of fundamental interests of the international
community", which is, in fact, closely linked to
the doctrine of international jus cogens. In the Nicaragua
Case, the International Court of Justice clearly affirmed
jus cogens as an accepted doctrine in international law.
The ICJ relied on the prohibition on the use of force
as being "a conspicuous example of a rule of international
law having the character of jus cogens."
Status
of Jus Cogens
A peremptory norm may, it would appear, be derived from
a custom or a treaty, but not, it is submitted, from any
other source. This statement is, however, self-contradictory.
Indeed, there are serious problem associated with the
assertions that norm of jus cogens could be the result
of one or any of the traditional primary sources of international
law, namely treaties, customs or general principles of
laws, or perhaps from the natural law. According to Michale
Byers, treaties can at best only be contributing factors
in the development of jus cogens rules. He found two reasons,
firstly a treaty cannot bind its parties not to modify
its terms, nor to relieve themselves of their obligations
under it, through a subsequent treaty to which all the
parties to the first treaty have consented. Secondly,
all existing, generally accepted jus cogens rules apply
universally and none of the treaties, which have codified
these rules, have been universally ratified. No treaty,
which has not been universally ratified, not even the
Charter of the Charter of the United Nations, can establish
a rule of general international law, for treaties can
only create obligations as between their parties.
As
for the assertion that jus cogens rules to be considered
as customary international law, still further ambiguity
takes place. Because customs are binding only in case
of established opinio juris that a state believes to be
bound by the said practice as being creative of customary
rule, and persistent objection of any customary principle
creates an exception to have the binding nature of that
rule for the parties objected. There are also other ways
to supersede customary rules, for example, through the
development of rules of special customary international
law and the conclusion of treaties. Whereas in case of
the rules of jus cogens, these are bound regardless of
the consent of the parties concerned, regardless of states'
own individual opinion to be bound as because these rules
are so fundamental that states cannot escape responsibility
under these rules. Modification of the rules of jus cogens
is only possible when new peremptory norm of equal weight
emerges. As for the binding character of jus cogens, acceptance
by the large majority of states of such norm would amount
to universal legal obligation for the international community
as a whole. These are superior rules and bear the common
values for the international community as a whole. Michael
Byers, however, tends to show that jus cogens rules are
derived from the "process of customary international
law", which according to him is itself a part of
international constitutional order. He argues that opinio
juris, or something like opinio juris, appears to be at
the root of the non-derogable character of jus cogens
rules because states, quite simply, do not believe that
it is possible to contract out of jus cogens rules, or
persistently to object to them. They regard those rules
as being so important to the international society of
states, and to how that society has come to define itself,
that they can conceive of no exception to them. Article
53 of the Vienna Convention, however, contains no reference
to any element of practice. One could then hardly conceive
jus cogens as a strengthened form of custom. David Kennedy
termed jus cogens as super-customary norm.
In
fact, two views are predominating as regards to the basis
of the concept of jus cogens either as a direct source
under international law or as based on the one of the
existing sources of international law. Some argue, accepting
of the concept of jus cogens means recognition of a wholly
new source of law capable of generally binding rules.
This idea was developed during the Vienna Conference on
the Law of the Treaties as jus cogens was interpreted
to mean that majority could bring into existence peremptory
norms and the norm binds the international community of
states as a whole regardless of the individual consent
of the states. That results in a new source of law on
the basis of the argument that community as a whole may
create rules, which will bind all its members notwithstanding
their possible individual dissent. Others argue that the
existing sources have been modified to allow majority
rule-making in the context of higher law. However, negotiating
history of the Vienna Convention does not support the
view that the notion of jus cogens emerges as a new source
of general international law. Rather, there was a clear
tendency to regard jus cogens as the product of the existing
sources. For example, France argued that if the draft
article on jus cogens was interpreted to mean that a majority
could bring into existence peremptory norms that would
be valid erga omnes, then the result would be to create
an international source of law, for what it rejected such
possibility on the ground that such new source of law
would be subject to no "control and lacking all responsibility".
Moreover, complexity remain in the interpretation of the
wording of Article 53, that "acceptance and recognised
by the international community of States as a whole".
M.K. Yasseen, who was the Chairman of the Drafting Committee
of the Vienna Conference of the Law of Treaties, states
"there is no question of requiring a rule to be accepted
and recognised 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 recognition
of the peremptory character of the rule by the international
community as a whole would not be affected." He also
stated that no individual state should have the right
of veto. ILC's commentary to the article 19 of the Draft
Articles on State Responsibility, which requires that
an international crime should be recognised as such by
the international community "as a whole", points
out the meaning of the terms "as a whole" as
follows:
"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 recognised 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."
The
same view was expressed at the Vienna Conference by the
representative of the United States that, the recognition
of the peremptory character of a norm "would require,
as a minimum, absence of dissent by any important element
of the international community." The representative
of Australia stressed 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".
Debate
continues, not as regards to the existence of the notion
of jus cogens, but on two other issues. Firstly, as regards
the status of jus cogens, either as a new source of international
law or as under the any other existing sources of international
law; secondly, as regards the process of law making under
the norm of jus cogens. Although in reality, in the present
international legal order there is no special source for
creating constitutional or fundamental principles, but
we all know that international law itself is under the
constant process of development, "development towards
greater coherence."
Conclusion
The existence of the concept of jus cogens is, nonetheless,
not denied by the states at the Vienna Conference on the
Law of Treaties. Rather, it was argued that the essence
of the concept is that, it must operate as regards all
states without exception and indeed states at the Vienna
Convention reached an agreement on a constitutional principle
that peremptory norms bind all members of the international
community notwithstanding their possible dissent. It was
also argued that the principal criterion of peremptory
rules was considered to be the fact that they serve the
interest of the international community, not the needs
of individual states. Some argue by relying on the domestic
law analogy that good customs, morals and public policy
were not necessarily defined in municipal law, and yet
no insoluble difficulties had ever arisen in applying
them in specific cases. Moreover, since the adoption of
the Vienna Convention on Law of the Treaties, the norm
of jus cogens has gained a wide support among the commentators
and writers. Therefore, it could be argued that the objecting
states are bound by the concept so far as Article 53 of
the Vienna Convention is declaratory of an already existing
international law concerning jus cogens. In fact, the
principle of consent is a further structural principle
of international law, distinct from jus cogens.
The
author is a research fellow of International Law, University
of Helsinki.
