International Law has been described as “a body of rules which are legally binding on States in their intercourse with each other” (Oppenheim). International Law originated in Europe in the sixteen and seventeenth centuries and was created to govern the diplomatic, commercial, military, and other aspects of European society at that time. International law expanded beyond Europe when colonies in South and North America and later Asia as well as Africa gained independence and were incorporated into the league of sovereign nations.
Though it has existed for several hundred years and has governed the conduct of nations over time, International law has been criticized for being weak and ineffective when compared to domestic laws of sovereign countries. In recent years for instance it has been increasingly criticized for lack of sanctions, inefficiency, and inability to enforce the laws in an international context and promote justice.
More recently, international law has achieved importance after it acquired binding sanctions through “jus cogen” and “erga Omnis” obligations amongst other sanctions which can be imposed on violators of international law. This has been achieved through the codification process where generally existing principles of law have been summarized into a code that can be enacted and referenced (Jain). After codification, the laws were ratified by member states to institute their enforceability.
This paper examines the concept of the norm jus cogens and its role in international law, its limitations in its application, and how effective it has been in stemming jus cogens-related crimes. This paper will also explore ways in which the application of jus cogens laws in the international community can be strengthened.
Background to Jus Cogens and Erga Omens
Vienna Convention on Law of Treaties (VCLT) was first advanced in 1969, but it was not until 1980 on January 27th that the treaty came into force (UnitedNationsTreaty). It is a treaty that summarizes the various customary international laws between all the member States. Among its international laws are two norms of public international laws that are defined in the VCLT as jus cogens and erga omnes (UnitedNationsTreaty).
The VCLT is currently ratified by more than one hundred countries worldwide while it has been recognized by other countries, but which are yet to adopt it. The history of VCLT can be traced back to 1949 when the first work on the treaty began under the auspices of the United Nations in Vienna, Austria undertaken by a special commission, the International Law Commission (ILC).
Over the next twenty years until 1969, this committee built the framework that defined the treaty from scratch and refined it to address the unique and special features that pertain to the law in various countries. The Vienna Convention treaty redefines much of the international laws that are already in existence by classifying them in the context of the convention framework.
As such, it describes a treaty as a legal agreement between two or more states that is legally binding and which must contain the characteristics of written words (UnitedNationsTreaty). It also recognizes the right of every state to enter or cease being a party to a certain treaty.
Its major strength is in its ability to provide a guideline that is also referred to by non-member states that have not yet ratified the convention since it is considered by most nations as the “treaty of all treaties” (UnitedNationsTreaty).
The other important feature of VCLT that we shall later discuss with examples is that the convention is only applicable to treaties that have been undertaken only between States, it, therefore, does not extend to cover treaties between states and other parties that are not sovereign countries; however there are few exceptions to this rule. Finally, the VCLT authority is limited to agreements that have been written down and do not apply to verbatim treaties (UnitedNationsTreaty).
Jus Cogens is a Latin word that is used to describe the principles and sets of international laws that are widely held and adopted universally by international communities and which no deviation or exceptions for any country is acceptable (Linderfalk). It defines the category of norms and laws that safeguard peaceful existence among communities and also includes humanitarian rules as well; as such it is concerned with issues like slavery, torture, racial discrimination, and genocides (Linderfalk).
There is no common concept that is used to determine the nature and type of laws that fit into the category of jus cogens, rather the trend is to include issues that are considered to be an abomination in many societies. Jus cogens are thus peremptory and when there is any conflict in rule or disagreement in International Law, it prevails. The norm permits no derogation and may be modified only by a subsequent norm of the same character.
Derogation refers to when a rule or a law is allowed to be ignored or considered to have low or no worth. Thus it does not allow discussion or refusal and is expected to be obeyed immediately, without question or refusal.
The major feature of jus cogens is the fact that this principle is applied without exceptions to all countries regardless of their ratification status notwithstanding cultural or societal practices that indicate otherwise (Linderfalk).
This means that countries practicing such acts are required to be condemned and compelled to desist from such practices forcefully or through other means, such as the case of jus cogens violations that occurred in1980s in South Africa during the apartheid era when it used to practice racial discrimination among the black African citizens (Yun, Yu, Qiujuan and Xiaowei).
More importantly, such countries according to VCLT cannot enter into a treaty with another State that would make the other State appear to be a party to such acts that contravene jus cogens through any form of actions no matter how subtle. If such an agreement existed between two or more States the Vienna Convention is required to declare it null and void and therefore non-binding to either of the parties (Linderfalk).
In the context of VCLT jus cogens is therefore used to clarify and provide guidelines regarding such issues in treaties entered between States that have elements of laws or norms that are inconsistent with the principle of jus cogens.
However, the Vienna convention stopped short of listing all actions that can be categorized to fit the principle of jus cogens, which is also at times referred to as peremptory norms; this is one of the major aspects that is often cited to be its major weakness. Nevertheless, it provides a framework that can be used to determine if certain acts can be categorized under the jus cogens by generally classifying all acts that involve the use of violence or coercion to qualify as peremptory norms.
In the Vienna Convention, the jus cogens norms are included under the section of the treaty titled invalidity of treaties since it describes the general instances and types of peremptory norms that will automatically nullify an agreement between two States once they are determined to have occurred (Linderfalk).
In this respect, the VCLT is very specific in the manner and instances when jus cogens can be used justly to terminate a treaty. In the first instance, a treaty can be terminated and considered void in toto if any part of the treaty articles has aspects that violate jus cogens no matter how minute (Caplan).
In special cases when jus cogens violations occur to any of the parties that is a signatory to a treaty, the legality of the treaty immediately becomes null and void prospectively (Caplan). Meaning all previous obligations that are entitled to any party before the violations of jus cogens occurred must still be honored by various parties and are therefore not considered void.
The concept of jus cogens is important in the protection of human rights all over the world and is closely related to obligation erga Omnis which states that when international crimes rise to the level of jus cogens, then countries are legally obligated to perform specific acts (Bassiouni).
The legal obligation which arises from the jus cogens status of such crimes includes the following; duty to prosecute or extradite, the non-applicability of statutes of limitations for such crimes, the non-applicability of any immunities up to and including heads of States, and the non-applicability of the defense of “obedience to superior orders” (Bassiouni). The twin principles of jus cogens and obligation ergo omnis are aimed at leading to a non derogated obligation by States to refrain from any preempted acts that violate human rights and to extradite or punish those who engage in such crimes (Bassiouni)
Article 53 of the Vienna Convention on the Law of treaties is entitled “Treaties conflicting with a peremptory Norm of General International Law -Jus Cogens” and provides that “a treaty is void if at the time of its conclusion it conflicts with a peremptory norm of general international law” (UnitedNationsTreaty).
The basic principle of this concept is that aspects of international law should be strong enough to be recognized by other States and to invalidate any treaties, laws, and customs that are not in agreement with them. It acts as a check on the power of the State to enter into agreements by ensuring that sovereign governments can only enter into treaties that are universally and morally agreeable. The principles of jus cogen, therefore, apply not just to treaties but also to any other act or actions of States (Meron).
Scholars have not completely agreed on a clear and precise definition regarding which norms are jus cogens or how a norm achieves that status. A broad definition of jus cogens crime is whether a crime affects the interest of the world’s community as a whole because if such acts persist, the survival of humankind is threatened and the conscience of humanity is shocked by those acts. If these two broad elements are present in a crime then it qualifies to be jus cogens.
It is also generally accepted that “norms jus cogens” include the prohibition of crimes against humanity such as; genocide, maritime piracy, slavery, human trafficking, torture, wars of aggression, and apartheid among others (Meron).
Sources of Jus Cogens Norms
Just as there is no clear agreement on what jus cogens norms are, scholars do not agree on what is the true source of jus cogens norms and how new ones are formed. Some think it’s a product of natural customary laws that develops organically to fulfill a fundamental need in society. The development of these norms is seen to be inevitable due to their nature and utility that are bound to evolve due to the needs of the society and the important role they play.
Others think that the source of these norms is the international process to legislate and enforce these norms, but in this case, the source of jus cogens is the Vienna convention. The role of jus cogens is similar to public policy and requires public concepts application in the common and civil law systems, which are used to override private legal agreements that are found to conflict with them usually for the good of all. For this reason, jus cogens norms nullify the treaties of nations that are inconsistent with International Law.
Limitations of Jus Cogens
In the international context, the nature of jus cogens norms is considered limited in the following ways. One it has not provided clear definitions of jus cogens norms that are clear cut by comprehensively cataloging all instances of such acts (Caplan).
This not only makes it ineffective but also unreliable as a law because it is not clear-cut as it lacks a detailed framework and criteria for defining such crimes. Besides this, the lack of universal criteria of determination of jus cogens norms has far-reaching implications in the global arena which is a weakness that has been exemplified by certain cases that have shot into the limelight and which have brought such issues into the limelight.
A typical example is a renowned Michael Domingues v. United States case where the principle of jus cogens occurs was deemed to conflict with international laws due to its ambiguity which happened in the US (Bossuyt). The contentious issue, in this case, was whether the United States was in contravention of the jus cogens principle by sentencing a minor to undergo a death sentence (Greece v. the United Kingdom, 1953).
The issue that was central to this assertion was the ability to determine if death the sentence given to the minor could be defined as internationally unacceptable and therefore described to fit within the jus cogens norms.
Some people argue that jus cogens should not in any way, be allowed to impede on the basic rights of individuals countries as it seeks to enforce the rights of others. The enforcement of the norm is not dependent on a country’s ratification of the Vienna convention and would be legally binding even when a country has not acknowledged it. This interferes with the concept of equality and total sovereignty of countries and takes away the freedom of countries to operate freely.
The concept of Jus Cogens is thought of as having too much of a good thing and it suffers from the embarrassment of its wealth where despite the rich promise of the norm; its shortcomings often have serious repercussions. Some of its critics assert that the crimes of humanity that it purports to prevent continue despite its presence and it is therefore ephemeral and will soon cease to exist (D’Amato).
There is also the question of jurisdiction, especially in the absence of a body of laws to try States and governments. People have sought justice by going to court in other jurisdictions (Firlatiga vs. Pena-Ilaria; Xuncax vs. Gramajo; Doe vs. Unocal). The question is whether the laws of one country can be used to judge another equally sovereign State?
The belief in equality is a basic fundamental principle of international law. It’s a doctrine in international law that bars anyone subjecting another country to another’s jurisdiction. In the following section let us briefly review some instances in which the application of this law in the global context has occurred and common challenges that it had encountered in the process.
Application of Jus cogens in Laws
In the case of Michael Dominguez vs. the United States: Michael Dominguez was sixteen years old when he committed murder in the State of Nevada and was sentenced to death two years later by the law of that State (Bossuyt). His case was brought before the Inter American Commission of Human Rights which gave its verdict and jus cogens universal norm was ruled as nonexistent in this case (Bossuyt).
However, the committee judged that since Dominguez was sixteen years when he committed the crime, there was a jus cogens norm in the ruling and the ruling amounted to execution of a minor (Bossuyt). The US banned the execution of minors from that date henceforth. So, in this case, we note two things; one, that the jus cogens principle is in some aspects very confusing and two that despite the challenges that it faces it is still somehow effective in ensuring that the principles of jus cogens are upheld.
Another instance was the case of the International criminal court special tribunal for Yugoslavia vs. Furundzija which found that there was jus cogens norm for the prohibition against torture and that every State had obligation an Omnis towards all suspects of torture crimes. The court ruled that there was universal jurisdiction of the crime of torture because torture was an enemy of all mankind.
The international law on torture, The Convention for the Prevention and Punishment of Torture was peremptory and could not be derogated and all countries are obligated to seek, prosecute punish or extradite such criminals (Bossuyt).
The case of Bouzari vs. the Islamic Republic of Iran is a good case of the limitations of Jus Cogens. Mr. Bouzari brought a case before a Canadian court regarding physical suffering and financial loss he incurred at the hands of Iranian security agents (Bouzari). He managed to escape from Iran and went to Canada but was still suffering from the effects of the torture where he sought to claim damages from the Iranian government for the pain suffered (Bouzari).
In his submissions, Mr. Bouzari asked Canada which was a signatory to the International Law against torture, to uphold and respect the dignity of human life and its commitment to social justice and equity (Bouzari). The court after observing the evidence acknowledged the presence of jus cogens norm in the case that was torture prohibited by international law. However, in the laws of Canada, it was prohibited by the same international law to subject another country to its jurisdictions. Because of this conflict and despite the merits of the case it was thrown out.
The basis for the rejection of the case was not because the country was not a signatory of that particular law, but because it lacked the statute in the law that granted it the jurisdiction to hear the case. This is a major limitation for jus cogens norm and the principle of jus cogens norm being peremptory and that cannot be derogated was not guaranteed in this case.
Instead, it demonstrates that the equality of people espoused by the jus cogens norm and the equality of sovereign states are all balanced and equal principles guaranteed under international law.
This shows the great limitations that the jus cogens norm has due to conflicting legal principles; more importantly, it exemplifies the weakness of jus cogens norms as far as providing a clear international framework is concerned. This is the inherent weakness of jus cogens in failing to articulately state the occasions that this norm should prevail over other conflicting laws such as this.
The case of Princz vs. the Federal Republic of Germany also presents another example of challenges experienced in enforcement of jus cogens norm (Princz). Prince was an American citizen who had been jailed in the Auschwitz concentration camp. He suffered severe abuses and for these, he brought a case before a Washington court against the Government of West Germany (Princz).
The court acknowledged that he had suffered wrongs prohibited by jus cogens norms but because the country had national immunity under international law it was not possible to sue the country (Princz). The court also considered that such a case was likely to poison the diplomatic relationship between the two countries and the case was thrown out. In these cases, we get to see other quite different challenges that face enforcement of jus cogens laws; that of politics and self-interest.
It is apparent that W. Germany in this case like various other countries deliberately enacted laws to counter the enforcement of jus cogens laws which means that unless and until the time when jus cogens are given the power to prevail over all other individual States laws it will never be effective.
This is what I call countries self-interests which are very similar to the issue of politics which is also exemplified by this example; suffice it to say that historically countries have always gone to great lengths to uphold their foreign policies and guide their strategic alliances. And it would seem that in this case, not even the jus cogens norm can stand in the way as demonstrated by this case. But since politics is as old as humanity it would be challenging to find a way around this hurdle which must be found if jus cogens norms are expected to be any more effective than it is now.
The Ontario court in Bouzari’s case observed that “there is today a balance struck between the condemnation of such crimes like torture, genocide, extrajudicial killings and so on as international crimes against humanity that all States must be obligated to stop as well as not subject each other to their jurisdiction”(Bouzari).
But this is probably as far as it goes, as it is jus cogens norm is currently dogged by various limitations and challenges that make it’s virtually impossible to enforce for various reasons, some of which we have discussed. The inefficiency and ineffectiveness of jus cogens norms are so glaring that it can only be termed as a bad joke in some situations.
Some recent examples of crimes that are of jus cogens nature that has been in the world limelight are the Rwanda genocide and the currently ongoing Darfur genocide in Sudan. For the case of Rwanda, the international community could not intervene on time for political reasons and lack of a well-defined framework of responding to such crimes on time and almost two decades later not so much has changed as far as the effectiveness of jus cogens is concerned in stemming of such crimes.
As we speak, it has been proved by various independent bodies that genocide continues to occur in North Sudan a crime that is yet to be addressed as expected under jus cogens law and the main perpetrator of the crime who is President Bashir is still very much in power and even able to travel freely in some few countries.
So the question then becomes is jus cogens norms really “binding legally binding on States in their intercourse with each other?” (Oppenheim). To sum it up the equality of States and people are the self-undermining variants of the rule of international law and the idea of a “super norm” that is universally accepted and peremptory is thus probably not feasible, at least for now.
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