Jus Cogens and Legal Responsibilities of States

Introduction

Jus cogens is an international principle of public law that is generally accepted by the international community as a norm that cannot be terminated. Even though the majority of states currently admit the existence of peremptory law, its identification attracts particular attention from international judges, lawyers, and scholars. The purpose of this paper is to describe the norms of jus cogens and understand what legal responsibilities these norms impose on states and how they differ from responsibilities determined by non-jus cogens norms.

Nature of Jus Cogens

Jus cogens may be defined as a specific technical term given to the hierarchically superior norms of international law. Emerged for the first time in the 19th century, it has the literal meaning of “peremptory law,” “compelling law” or “imperative law.” The term of durability is highly essential for the traditional understanding of jus cogens. In other words, this fundamentally peremptory law implies a set of elaborated and well-defined rules that do not allow derogation under any circumstances. However, derogation should be distinguished from abrogation that refers to the legal norm’s termination from a certain date. The norm may be terminated by its replacement with an updated or new law, repealing legislation, or obsolescence. In turn, derogation leaves the norm intact and preserves its force. If any rule or law is jus cogens, it entirely keeps a legal regime and binds all subjects without an opportunity to contract out.

In general, the doctrine of jus cogens was created and developed under a substantially strong influence of the concepts of natural law that imply the inability of states to establish contractual relationships free. All states should respect particular fundamental principles of the international community. Moreover, any state’s power to make and follow treaties is limited if it confronts the peremptory norms of jus cogens that correspond to the basic rules of international policy. Jus cogens cannot be terminated or altered unless a new norm of the relevant standard is subsequently established. In other words, the position of peremptory law is hierarchically superior in comparison with ordinary rules and norms of international law.

The norms of jus cogens attained the status of international constitutional law for two main reasons. First of all, they limit the states’ ability to establish and change international rules based on their own political, economic, or social interests. In addition, the rules of jus cogens prevent states from violating public international law and the fundamental rules of international policy as such violation is extremely detrimental to the global legal system.

Definition and Sources of Jus Cogens

Even though the peremptory law’s definition, contents, and sources maybe not be clearly defined, the existence of jus cogens norms is currently well-established and universally recognized. After substantive debate, in 1969, the Vienna Convention on the Law of Treaties defined jus cogens in Article 53:

“For 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.”

Even though the Article cannot be regarded as a universal expression of all peremptory laws, it established four main criteria for a jus cogens norm:

• the status of general international law;
• its acceptance by the global community of states;
• its modification or replacement exclusively by another norm with the same status;
• immunity from derogation.

As the international community’s public order, jus cogens is regarded as a source of hierarchically superior norms that protect the international community’s fundamental values “against impairment as a result of State derogation or action.” The generally accepted examples of these norms are the protection of peoples’ right to self-determination, humanitarian law, fundamental human rights and environment, the maintenance of global peace and order. Jus cogens norms include the outlawing of piracy, slavery, and genocide as well.

The major sources of jus cogens norms are considered to be general international public law, general law principles, multilateral treaties or agreements, and multilateral conventions. In this way, jus cogens norms that imply the protection of human rights by all states regardless of their subjective law are entrenched in the Universal Declaration of Human Rights:

“Everyone is entitled to all the rights and freedoms outlined in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or another opinion, national or social origin, property, birth or another status. Furthermore, no distinction shall be made based on the political, jurisdictional, or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing, or under any other limitation of sovereignty.”

In turn, the Slavery Convention was elaborated for the prevention and subsequent complete abolition of all forms of slavery. Due to included peremptory law, it forces ”the High Contracting Parties undertake, each in respect of the territories placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage, the necessary steps.” The International Covenant on Civil and Political Rights contains peremptory law that determines the individual right to self-determination and social, economic, and cultural development. The legal responsibilities of states imposed by the norms of jus cogens are described in Article 2:

“Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or another opinion, national or social origin, property, birth or another status.

Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, by its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.”

Violation of Jus Cogens

In recent years, academic enthusiasm related to the concept of peremptory law faced a substantial degree of skepticism from international lawyers. During the last several decades, domestic and international courts have been asserting a wide range of jus cogens norms in the fields of diplomatic protection, jurisdiction, reservations to treaties, immunities, extradition, and human rights protection. However, in specific situations, these norms are controversial, and the observance of one international rule may result in the violation of others.

For instance, in 1991, to prevent “the fighting in Yugoslavia, which is causing a heavy loss of human life and material damage,” the Security Council accepted Resolution 713 that imposed an arms embargo. Based on jus cogens norms, “the suspension of the delivery of all weapons and military equipment to Yugoslavia” aimed to maintain security and peace in the country. At the same time, this Resolution disregarded the state’s right to self-defense, and the consequences of the arms embargo led to large-scale human suffering and ethnic cleansing. In other words, the observance of peremptory law that guarantees peace and security resulted in the violation of the genocide prohibition.

Legal Responsibilities Imposed by Jus Cogens Norms

As it was previously mentioned, the norms of peremptory law may be regarded as obligatory, international, and universal. They are hierarchically superior in comparison with any subjective rules and accepted by countries regardless of domestic legislation. Jus cogens cannot be changed or terminated by any party. In addition, its norms impose specific legal responsibilities on states even if an agreement is connected with specific countries that should act according to international public law. The violation of jus cogens norms by a party leads to its punishment. For instance, the International Court of Justice specified the legal responsibilities of the United States that violated peremptory law in the Nicaragua Case of 1986:

“…the United States, in breach of its obligation under general and customary international law, has violated and is violating the sovereignty of Nicaragua…

…the United States must pay Nicaragua, in its own right and as parens patriae for the citizens of Nicaragua, reparations for damages to person, property, and the Nicaraguan economy caused by the foregoing violations of international law in a sum to be determined by the Court. Nicaragua reserves the right to introduce to the Court a precise evaluation of the damages caused by the United States.”

Legal Responsibilities Imposed by Other Norms

When a norm is not defined as peremptory, the subjects of non-international law may create specific legal rules that parties would like to apply for a definite period. No jus cogens norms impose legal responsibilities on states, however, these responsibilities cannot be regarded as universal and internationally obligatory as they are regulated by sides. In addition, all agreements and treaties that do not contain jus cogens may be terminated or changed by the mutual agreement of state parties. For example. the International Convention for the Suppression of the Financing of Terrorism defines the right of states to act according to their legislation under certain circumstances:

“This Convention shall not apply where the offense is committed within a single State, the alleged offender is a national of that State and is present in the territory of that State and no other State has a basis under article 7, paragraph 1, or article 7, paragraph 2, to exercise jurisdiction, except that the provisions of articles 12 to 18 shall, as appropriate, apply in those cases.”

In turn, the Convention for the Preservation and Protection of Fur Seals accepted by the United States, Russia, Japan, and Great Britain defines specific communities that may avoid the obedience of its norms:

“It is further agreed that the provisions of this Convention shall not apply to Indians, Ainos, Aleuts, or other aborigines dwelling on the coast of the waters mentioned in Article I, who carry on pelagic sealing in canoes not transported by or used in connection with other vessels, and propelled entirely by oars, paddles, or sails, and manned by not more than five persons each, in the way hitherto practiced and without the use of firearms; provided that such aborigines are not in the employment of other persons or under contract to deliver the skins to any person.”

Conclusion

Jus cogens may be defined as a specific technical term given to the hierarchically superior and universally accepted norms of international law that do not allow derogation under any circumstances. The violation of jus cogens norms by any party leads to its punishment. In turn, when a norm is not defined as peremptory, the subjects of non-international law may create specific legal rules that parties would like to apply for a definite period. All agreements and treaties that do not contain jus cogens may be terminated or changed by the mutual agreement of state parties.

Reference List

1. Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) (Merits) [1986] ICJ
2. Convention between Great Britain, Japan, Russia and the United States Requesting Measures for the Preservation and Protection of Fur Seals in the North Pacific Ocean (signed 1911) (1911) 214 CTS 80
3. International Covenant on Civil and Political Rights (adopted 1966, entered into force 1976) 999 UNTS 171 (ICCPR)
4. Kolb, R., Peremptory International Law Jus Cogens: A General Inventory, Oxford, Hart Publishing, 2015.
5. Saul, M.,‘Identifying Jus Cogens Norms: The Interaction of Scholars and International Judges’, Asian Journal of International Law, 2014, pp. 1-29.
6. Slavery Convention (adopted 1926, entered into force 1927) 60 LNTS 253
7. UNGA International Convention for the Suppression of the Financing of Terrorism (adopted 1999, opened for signature 2000) (2000) 39 ILM 270 art 3
8. Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR)
9. UNSC Res 713 (1991) 42
10. Vienna Convention on the Law of Treaties (adopted 1969, entered into force 1980) 1155 UNTS 331 (VCLT)
11. Weatherall, T., Jus Cogens; International Law and Social Contract, Cambridge, Cambridge University Press, 2015.