INTERNATIONAL LAW: JUS COGENS Essay Example
INTERNATIONAL LAW: JUS COGENS
The codification of international law has not been easy especially when it comes to states agreeing on which kinds of norms should be included in a convention or treaty. Article 53 of the Vienna Convention on the Laws of Treaties 1969 (“the Vienna Convention”)1 states that a treaty is void if at the time of its conclusion, it conflicts with a peremptory norm of general international law”.2 The regime for which international law is created is different from that which is created under domestic law, where a state has to assert power and authority over its citizens, since international law is determined by the will or consent of a state to be bound.
When it come to the identification of jus cogens in international law, the issue is determining what is the appropriate justification in stating that a norm has attained the jus cogens status. In national and international law jurisdictions the most used forms of justification is the issue of public theory, natural law theory and the application of customary law, however, despite the existence of various forms of justification, the question still persists of how to methodically identify the specific peremptory norm developed , the status that is given to that norm and on whether the norm should be treated on the basis of self-evident or that it should be identified on the basis of intuition.
This paper examines the extent to which the ILC was right in its decision declaring that instead of providing a list of or codification of peremptory norms, it would rather provide generally that the terms of a treaty is void if it conflicts with the rules of jus cogens and to leave the full content of the rule be worked out in State practice and in the jurisprudence of international tribunals.
JUS COGENS CONTEXT AND INTERNATIONAL LAW
The context in which the ILC sought to justify the existence of jus cogens was informed under the 1963 and 1966 sessions in the Waldock’s draft and the final draft presented at the Vienna Conference3. The ILC categorically stated that there is no rule in international law from which States can in their own free will contract out is very difficult to sustain. The world having witnessed the World War II and the atrocities committed by the German Nazis regime recognised that there are certain laws that man cannot be permitted to do regardless of whether or not the law does not define it or not, that is those that evoke human emotions and humanity itself.
The sources of law in international law is very clear under Article 38 (1) of the Statute of the International Court of Justice (ICJ), that is international conventions, customs, general principles of law and teachings of highly qualified publicists4. Therefore, jus cogens in its very nature is not a formal source of the law in international but it is a legal concept that is recognised in determining the validity of laws in international law or international treaties.
It is on this premise that the ILC invoked the creation of Article 53 of the Vienna Convention to ensure that there are certain rules that a state cannot be permitted to derogate at all by any treaty agreement or which can easily be changed by another rule of the same character which led to the existence of jus cogens5. It is also material to state that there is no particular criterion in which international law having the status of jus cogens may be recognised, however the nature of the subject matter in which it deals with may in the opinion of the ILC give the norm the character of jus cogens6. In essence therefore the determination of what attains the status of jus cogens was to be left out to be determined by State parties and by the jurisprudence set out by international courts and tribunals.
The establishment of the jus cogens principle is based and determined by the application and interpretation of Article 53 of the Vienna Convention .The status of jus cogens in international law has been accepted as being an international peremptory norms but the Vienna Convention makes it difficult to identify the norms7. It is material to note that in the case of Belguim v Senegal, the International Court of Justice (ICJ)8 has done very little in trying to identify and advance the doctrine of jus cogens ever since the concept was identified in the Vienna Convention 19699. In the case of Belguim v Senegal10 the ICJ first recognized that the prohibition of torture was a norm of jus cogens status and the ICJ justified its existence from its inference to international customary law as justification of prohibition of torture.
In light of the decision of the ILC, they concluded that in regards to the interpretation of Article 58 of the Vienna Convention, then that there are some treaties that would likely violate the article because of the conflict of peremptory norm of international law or that of a jus cogens. The examples of treaties violating this notion includes the treaties that contemplates an unlawful use of force contrary to the principles to the United Nations Charter, a treaty that contemplates any criminal act under international law, a treaty that connives the commission, contemplation and conniving the commission of acts that include slave trade, piracy, genocide, and suppression of states when they are called on to corporate11. Moreover treaties that are contrary to international peremptory norms and jus cogens include those that contemplates the violation of human rights, the equality of states doctrine, self-determination principles among other possible examples12.
The application of Article 53 of the Vienna Convention is general in nature and that it involves the obligations of the international community as a whole. Peremptory norms on international law mostly focus on the scope and the priorities that are given to fundamental obligations, and the focus of these obligations is that they are of international nature applicable to the international community as a whole and that all states must comply with these obligations. In this case therefore, the states have an obligation to invoke the responsibilities of a state when there is breach of these obligations13. The consequence for the breach jus cogens attract other consequences in regards to the other states and not only applies to the state responsible for the breach. Moreover, States have the entitlement to invoke responsibilities for breach of obligations to the entire international community.
In terms of determining the criteria for breach, then the character of the obligation breached, that is the breach must concern an obligation that arises from the breach of a peremptory norm of general international law. In regards to Article 53 of the Vienna Convention, a peremptory norm of general international law is “an accepted and recognized by the international community as a norm in which States cannot derogate from and can only be modified only by another subsequent norm of general international law that has the same character”14.
Article 64 of the Vienna Convention clearly recognizes that there is a chance that new peremptory norms of general international law may come into existence when it is recognized and accepted through the process of recognition and acceptance by the international community of states15. Moreover the status of jus cogens norms in international law is associated with the issue of the consent of states that is the states need to consent to the treaty for it to attain the status of jus cogens16. In the Armed Activities17 case the ICJ stated that no “peremptory norm of general international law the presently exists requiring the states to consent to the jurisdiction of the court, hence leaving it open for the law to create jus cogens on such issues in the future.
IDENTIFICATION OF JUS COGENS
In terms of identification of jus cogens, then one of the ways it is identifies is through the interpretation of Clause of Article 53 of the Vienna Convention, that is “recognized and accepted by the international community as a whole and that no state is permitted is to derogate from it”18. However the application of procedural rules does not amount to the derogation from the substantive rules of jus cogens.19A procedural may at times hinder the application or the enforcement of the jus cogens rule, however this does not amount to the derogation from the content20. Thus the one way of identifying jus cogens is that it must be recognized by the international community as a whole, and the identification using international states recognitions must be read together and interpreted with Article 38 (1) of the ICJ Statute21. In practice therefore, the application of procedural rules does not amount to the recognition of a breach of substantive rules of jus cogens where assistance is rendered in maintain the situation does not lead to the contravention of Article 41 of the ILC Articles on Responsibility of States for Internationally Wrongful Acts22.
It is important to consider the wording of the Vienna Convention Article 53 that the notion of “international community of states” as a whole is not recognized during the formation of treaties, customary law or the general principles that are applicable in international law. It clearly means that Article 53 of the Vienna Convention only offers the way in which jus cogens may be identified in under the Vienna Convention but it leaves it open on how to identify how it will be recognized as a general matter23.
The inclusion of Article 66 of the Vienna Convention specifies that “any one of the parties to a dispute concerning the application or the interpretation of Article 53 or 64 of the Vienna Convention by a written application it will be submitted to the ICJ for a decision unless the parties consent to the dispute being solved through arbitration”24. Despite the fact that that the dispute resolution process under Article 66 of the Vienna Convention has seldom been used, there is a high probability that the IKC had contemplated that the ICJ may give ways in which jus cogens may be identified . This goes hand in hand with the decision of the ILC in leaving the concept open that is where the parties deem it fit, then they may seek the leave of the court to determine its prudent course according to state practice and the jurisprudence of the international courts.
The international law courts have been reluctant when it comes to the identification of jus cogens as international law norms especially in regards to the case handled by the ICJ that is Belguim v Senegal25. In the case the ICJ was of the opinion that the prohibition against torture is by its nature part of customary international law and therefore it has attained the status of jus cogens that is peremptory norm26 because the prohibition against torture is grounded on a wide spread international practice and that there are numerous conventions and international instruments that prohibit torture27.
WHY THE ILC WAS RIGHT?
It is important to state that in my opinion, the ILC was right in leaving the determination and identification of jus cogens open because of inherent nature of philosophy of the law. In regards to the application of natural law theories, one important aspects of the need for the existence of law is to protect, and therefore there has to be a way in which all states recognise a particular norm as having the status of jus cogens. In regards to natural law theory, there are certain fixed notions that are innate to the needs of humans and are thus fixed by natural law and hence jus cogens norms can develop in accordance with the changing nature of the international community of states.
The ILC decision to leave it open is to ensure that the law relating to the protection of certain innate rights and needs are protected, and when the laws change it is flexible. In regards to the theory advanced by public theory, it presupposes that the normative status of international law needs to be derived from the fact that there is a specific reference to specific common values of states that is the practice must be found under the domestic legal framework limiting the rights to those that are advanced by the societal values dependent on it28. The justification for the use of public theory is that the norm is justified by the existence of that particular practice in domestic legal orders, however there is uncertainty in regards to what extent the societal values of a domestic legal order should apply to the international community and be defined29. It is also difficult to determine whether the international law courts have the jurisdiction for which certain domestic legal order societal values befit application as jus cogens under international law.
The basis of identifying jus cogens under international law using customary international law is more appealing compared to the use of natural law and public order theory. International customary law is recognized under Article 38 (1) of the Statute of the ICJ is one of the sources of law under international law30. However in terms of applying customary international law as jus cogens, there are difficulties when it comes to binding all the parties under international law. It is also difficult to find state practice that has the status of the jus cogens norm as the basis of customary practice.
Most of the time, the jus cogens created under international law is about the abstentions from certain conduct or forms of conduct31. This means that since most of the jus cogens norms are abstentions such as prohibition from torture, slavery and genocide, then it is difficult to have them exist as rules as ordinary customs. In determining whether or not jus cogens as attained the status of international law practice, then it must go beyond the traditional conception of the use of customs, an engagement with other forms of abstentions, the abstention from the creation of a treaty to undertake the particular act prohibited32. In determination of whether a norm has attained the status of jus cogens, then it must have a wide spread international practice and on the opinio juris of the State as one of the qualifications on the basis of its application using the international customary interpretation33. However there is no clear distinction of when an international law custom practice attains the status of jus cogens and what is the necessary determination of whether the it has met the necessary threshold to be considered a peremptory norm.
In light of the opinion of Judge Cancado Trindade in the Belguim v Senegal Case the importance of Article 53 under the Vienna Convention is to ensure that there is progressive development of international law through reasoning and as such creating the basis for legal justification for the existence of jus cogens. This means that jus cogens may be identified on the basis that it is grounded on principles of law that has common and enshrining superior values that are shared by the international community of states as a whole ascribing to ethical contents under the international law of mankind (jus gentuim).
The role of international courts and tribunals is to interpret the law in international settings. This means that jus cogens in international law is not immutable and incapable of being modified in the near future or for future development , hence it can only be modified by the subsequent norm of general international law that has the same character. The other reason why the ILC was right in invoking Article 53 of the Vienna Convention is to ensure that there is no arbitrary determination of the invalidity, termination and the suspension of treaty operation by a particular states such that States need to have recourse to the peaceful settlement of disputes contemplated under Article 33 of the United Nations Charter and Article 66 of the Vienna Convention34.
Further, Article 53 of the Vienna Convention is that it does not apply the retrospectity principle that is usually included in treaties concluded by States. It only applies to cases where the particular treaty is void at the time of its conclusion on the basis that it is already in conflict with existing peremptory norms. It therefore means that the invalidity of the new rule of jus cogens has no retroactive effect, and invalidity only attaches at the time in which the treaty is being established that is the creation of a new peremptory norm35.
In conclusion, the Vienna Convention at Article 53 is a crucial clause that is it leaves it open for parties to conclude treaties but must ensure that the treaty concluded does not in any way conflict the peremptory norms of general international law. It is important to state that the ILC deemed it fit to ensure that treaties concluded have the effect of biding the international community of states and that any treaty or norm must meet the criteria of being a peremptory norm. The determination of the norm especially in regards to interpretation of Article 53 and 64 is dependent on Article 66 of the Vienna Convention, which is it is up to the international courts and tribunals to determine whether a certain practice or law has attained the status of jus cogens. This reflects the nature of international law as being dynamic and entirely depends on the international community of states to determine what norms should attain the status of jus cogens. The need for Article 53 of the Vienna Convention is to foster the development of international law in a progressive manner through developed reasoning in particular issues under international law.
Books/ Articles/ Journals
Brownlie, I, Principles of Public International Law (Oxford University Press, 6th edn, 2008)
Cassese, A, International Law, (Oxford University Press, 2nd edn, 2004)
Corten, O and Klein, P, Vol II, Part V Invalidity, Termination and Suspension of the Operations of Treaties, S.2 Invalidity of Treaties, Art.53 1969 Vienna Convention , (Oxford Public International Law,2011)
Dubois, D, “The Authority of Peremptory Norms in International Law: State Consent or Natural Law?” (2009) 78,Nordic International Law 133 at 144
Ellen, M, ‘Jus Cogens: International Law’s Higher Ethical Norms’ In Donald Earl Childress, ed, The Role of Ethics in International Law (Cambridge: Cambridge University Press, 2012) p 12
Ford, A, ‘Adjudicating Jus Cogens’, (1995) 13 Wisconsin International Law Journal 145
Green, J, ‘Questioning the Peremptory Status of the Prohibition of the Use of Force’, (2011) 32 Michigan Journal of International Law 215 at 244-52
ILC, ICL YearBook (Vol.I, 1963)
ILC , ILC YEAR BOOK (Vol. II, 1966) P. 247
ILC , ‘Commentaries to the draft articles on Responsibility of States for Internationally Wrongful Acts’ 56thsession (ILC 2001)
Mathew, S ,‘Identifying Jus Cogens Norms: The Interaction of Scholars and International Judges’ (2014) Asian Journal of International Law pp. 1-29
Shaw, M, International Law (Cambridge University Press, 7th edn, 2008)
Vidmar, J ‘Rethinking Jus Cogens after Germany v Italy to Article 53?’ (2013) 60 Netherlands International Law Review 1 at 17
Statutes/ International Law
Statute of the International Court of Justice
The Vienna Convention on the Law of Treaties 1969
United Nations Charter 1945
Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) Judgment of 14 February 2002
Jones v Ministry of Interior of the United Kingdom of Saudi Arabia  1 AC 270
Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment of 20 July 2012  I.C.J Rep at 9
1 Article 53 of the Vienna Convention
2 Article 53 of the Vienna Convention
3ILC Year Book Vol. 1 1963
4Statute of the International Court of Justice Art. 38 (1)
5Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) Judgment of 14 February 2002
6Vol. II, ILC Yearbook (1966) pp.247
7 S Mathew, ‘Identifying Jus Cogens Norms: The Interaction of Scholars and International Judges’ (2014) Asian Journal of International Law pp. 1-29
8 Questions Relating to the Obligation to Prosecute or Extradite (Belguim v Senagal), 
9 Article 53 Vienna Convention
10 Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment of 20 July 2012  I.C.J Rep at 9
11 The International Law Commission Year Book (1966) Vol. II , p.248
12 Above n 7
13 The International Law Commission, ‘Commentaries to the draft articles on Responsibility of States for Internationally Wrongful Acts’ 56thsession (ILC 2001)
14 Vienna Convention on the Law of Treaties, United Nations, 1155 Treaty Series, p.331
15 Vienna Convention Art. 64
16 O Corten and P Klein, Vol II, Part V Invalidity, Termination and Suspension of the Operations of Treaties, S.2 Invalidity of Treaties, Art.53 1969 Vienna Convention , (Oxford Public International Law,2011)
18 Vienna Convention Art. 53
19M Shaw, International Law, (Cambridge University Press, 6th edn, 2008)
20I Brownlie, Principles of Public International Law (Oxford University Press, 7th edn, 2008)
21 Statute of the ICJ Art. 38 (1)
22Jones v Ministry of Interior of the United Kingdom of Saudi Arabia  1 AC 270
23 D Dubois, “The Authority of Peremptory Norms in International Law: State Consent or Natural Law?” (2009) 78,Nordic International Law 133 at 144
24 Vienna Convention Art. 66
25 Questions Relating to the Obligation to Prosecute or Extradite (Belguim v Senagal), 
26 Above n. 16
27 Universal Declaration of Human Rights 1948, The International Covenant on Civil and Political Rights 1966, Geneva Convention on the Protection of Civil War Victimes, General Assemby Resolution 3452/30 1975 on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
28 M Ellen, ‘Jus Cogens: International Law’s Higher Ethical Norms’ In Donald Earl Childress, ed, The Role of Ethics in International Law (Cambridge: Cambridge University Press, 2012) p 12
29 A Ford, ‘Adjudicating Jus Cogens’, (1995) 13 Wisconsin International Law Journal 145
30 Statute of the ICJ Art. 38 (1)
31 J Vidmar, ‘Rethinking Jus Cogens after Germany v Italy to Article 53?’ (2013) 60 Netherlands International Law Review 1 at 17
32 J Green, ‘Questioning the Peremptory Status of the Prohibition of the Use of Force’, (2011) 32 Michigan Journal of International Law 215 at 244-52
33 Questions Relating to the Obligation to Prosecute or Extradite (Belguim v Senagal), 
34Article 33 of the United Nations Charter; Article 66 of the Vienna Convention
35A Cassese, International Law, (Oxford University Press, 2nd edn, 2004)
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