Legal

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This Blog is written by Jatin Pandey from Kirit P. Mehta School of Law, NMIMS Indore. Edited by Harsh Sonbhadra.

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INTRODUCTION

The term Jus Cogens is Latin; the literal meaning of it is “compelling law”. The norms of the doctrine of jus cogens are also known as peremptory norms. Article 53 of the Vienna Convention states that “A peremptory norm is a norm that is 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”. By the virtue of which state is not completely free in establishing their economic ties. Peremptory norms are derived from a political viewpoint and changing social and economic circumstances and also from major case laws. The norms of jus cogens are developed from customary international law and natural laws also played an important role in creating the norms of the doctrine of jus cogens for international laws.

SIGNIFICANCE OF THIS DOCTRINE OF JUS COGENS

The norms of the doctrine of jus cogens have a very pivotal role in international law. Though there is no statue or convention which defines which rules and regulations are part of this doctrine. It is an evolving doctrine; new norms are adding in it for maintaining cordial ties among the countries and protecting the rights of the human being. Article 53 of the Vienna Convention on the Law of Treaties 1969 mandated that “a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm (the doctrine of the jus cogens) of general international law”. By the virtue of article 53 of it, any treaty or rule violates the notion of the norms of the doctrine jus cogens are void. These norms are superior to any other existing norm in the international norm.

IMPACT OF THE DOCTRINE OF JUS COGENS

The norms of the doctrine of just cogens were established in the nineteenth and twentieth century. Professor Oppenheim said in his book “that there is a number of the universally recognised principle of international law that renders any conflicting Treaty void and the peremptory effect of such principle was itself a “unanimously” recognised customary rule of international law.” For example, he said that a Treaty supporting the act of piracy is void for being against the notion of the universally recognised principle of international law.

The impact of this theory can also be traced with the example of the Bosnian case [1]. In the year 1991, resolution number 713 of the security council of United Nation implemented an arms embargo while this resolution rejected states inherent right to self-defence the security council was unable to maintain peace and law and order in Bosnia the failure of which causes Genocide and ethnic cleansing in the country in 1993 one of the jury members of this case opined on that the security council had acted against the convention of genocide and alleged misuse of the norms of the jus cogens when imposing an arms embargo on Bosnia and Serbia.

Jus cogens have also affected the established doctrine of state immunity. The general norm in international law is that all countries have immunity from being sued by individuals. An example of this is the case of Al-Adsani v Kuwait [2], where the claimant was an individual who brought a suit for damages under the law of torts against the government of Kuwait asserting that he has been tortured by the officials in Kuwait. It was decided by the court that the government of Kuwait has the defence of immunity from being sued by the individual. This decision was upheld by the European Court on Human Rights. But the minority opinion of the European Court on Human Rights said that “the jus cogens nature of the prohibition of torture entails that a State allegedly violating it cannot invoke hierarchically lower rules… to avoid the consequences of the illegality of its actions” and stated that Kuwait could not “hide behind the rules on State immunity to avoid proceedings for a serious claim of torture”. Professor Caplan pointed out that state immunity is not just cogens or norm that, it ranks lower in the hierarchy of international law norms, and therefore can be overcome by the norm of the doctrine of the Jus Cogens so that victims whose human rights are violated can seek legal remedy. The House of Lords declared that when there is a case of the crime against humanity, the State Immunity Act 1978 shall be inferior to the norms of the doctrine of jus cogens.

LEGISLATION RELATED TO DOCTRINE OF JUS COGENS

Article 53 of the Vienna convention is the origin of the principle of jus cogens. “It states that a treaty is void if, at the time of its conclusion, it conflicts with the peremptory norm of general international law. The norm should be accepted and recognized by the international community of states as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of international law having the same character.

Article 64 of the Vienna convention deals with the emergence of a new peremptory norm of international law. It states that if a new peremptory norm of the international law emerges, any existing treaty which conflicts with that norm becomes void and is terminated.”

CASE LAWS ON THE DOCTRINE OF JUS COGENS

Armed activities on the territory of the Congo (the Democratic Republic of the Congo v. Rwanda) [3]

On May 28, 2002, the Democratic Republic of the Congo (DRC) filed a suit for instituting proceedings against Rwanda for “massive, serious and flagrant violations of human rights and international humanitarian law” resulted from armed aggression perpetrated by Rwanda on the land of the Democratic Republic of the Congo is violating the sovereignty and territorial integrity of democratic Republic of Congo, as guaranteed by the United Nations Charter and the Charter of the Organization of African Unity.

In its Judgment of February 3, 2006, the Court ruled the suit filed by the DRC is out of their jurisdiction. The court found that the international treaties invoked by the DRC could not be accepted because of the following reason

Rwanda was not a signatory of the treaty (as in the case of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment), or had made reservations to them (as in the case of the Convention on the Prevention and Punishment of the Crime of Genocide and the Convention on the Elimination of All Forms of Racial Discrimination), or because other preconditions for exercising the powers of the Court had not been satisfied.

The principle of jus cogens is for the first time used by the ICJ: “The DRC further contended in its Application that Article 66 of the Vienna Convention on the Law of Treaties of 23 May 1969 established the jurisdiction of the Court to settle disputes arising from the violation of peremptory norms (jus cogens) in the area of human rights, as those norms were reflected in several international instruments”.

The Court then turns to the DRC’s argument that Rwanda’s reservation is invalid. To show that Rwanda’s reservation is invalid, the DRC maintains that the Genocide Convention has “the force of general law concerning all States” including Rwanda since it contains norms of jus cogens. Rwanda observes inter alia that, although, as the DRC contends, the norms codified in the substantive provisions of the Genocide Convention have the status of jus cogens and create rights and obligations erga omnes that does not in it suffice to “confer jurisdiction on the Court concerning a dispute concerning the application of those rights and obligations.

Jurisdictional immunities of the state (Germany v. Italy) [4]

“However, in cases affecting peace and security, the Security Council may take action following the UN Charter, but at the same time, must take account of the norms of the doctrine of jus cogen as jus cogens norm, which has acquired an important position in international law. Reich during WWII was awarded damages against Germany.

Ultimately, in 2008, “Germany filed an application instituting proceeding against Italy before the International Court of Justice (ICJ), arguing that “in recent years, Italian judicial bodies have repeatedly disregarded the jurisdictional immunity of Germany as a sovereign State”, and thus violating international law. Italy disagreed, stating that the underlying acts were violations of jus cogens and therefore gave it the right to strip Germany from its immunity. Greece joined the proceedings as one of the Italian judgements concerned a declaration of enforceability by an Italian court of a Greek judgement that ordered Germany to pay compensation to victims of the Distomo massacre (in Greece). This declaration led to measures of constraint on German property in Italy.

The Court rejected Italy’s claims and fully agreed with Germany’s points. State immunity is part of customary international law, and the fact that the underlying acts (the WWII crimes) were violations of jus cogens did not deprive Germany of its jurisdictional immunity. Importantly, though, the Court notes that while the current judgement confirms jurisdictional immunity of states, this does not in any way alter the possibility to hold individuals criminally responsible for a certain act.”

ANALYSIS OF THE DOCTRINE

In international law, there is no code which defines which rules and regulation are parts of this doctrine. The doctrine of jus cogens is defined only by the Vienna Convention on the Law of treaties. The Convention was opened and adopted for ratification 23 May 1969 and came into force on 27 January 1980. It has been ratified by 116 countries as of January 2018. Some of the non-ratifying countries, such as the United States of America, recognize only parts of it that are consistent with the customary law of it and binding upon them. The Vienna Convention on the Law of treaties is considered one of the most important instruments in treaty law and always acts as an authoritative guide to resolving the issues over the interpretation of the treaty. India is neither a signatory nor has ratified the Vienna Convention on Law of Treaties. There are 193 countries in the world out of which only 116 countries rectify it up to January 2018. Unless a country rectifies it there is no binding obligation on it to follow the obligation of the Treaty this Doctrine is not universally bound to do sometime Security Council of United Nation exert pressure on the countries which are not following the doctrine to maintain the cordial world order. According to Article 53 of the Vienna Convention that establishes four criteria for an existing norm to be classified as the norm of the doctrine of jus cogens, 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 having the same status.

Problems always remain as to the application of the norm, in terms of which rules must necessarily be covered under the said norms. There were serious concerns that these criteria could be misused in classifying the norms to be covered under the doctrine of jus cogens. Over-inclusiveness of the norm or under-inclusiveness of the norm remains a fact in being a concern. For example, developing countries turned to the notion of jus cogens. The developing countries asserted that the principles of the common heritage of mankind, as proclaimed by the 1970 United Nations General Assembly resolution on the seabed, were regarded as the norm under the doctrine of jus cogens. This argument was rejected by the minority of western states. There are many other examples that demand codification of this doctrine as like as UN Charter.

CONCLUSION

The jus cogens doctrine has its roots in customary international law and natural law. While the jus cogen doctrine has many legal complexities, it still plays a key role as debated in international law. The doctrines in international law are generally criticized for lacking the proper enforcement mechanisms. However, in cases affecting peace and security, the Security Council may take action in accordance with the UN Charter, but at the same time, it must take account of the norms of the doctrine of jus cogen as jus cogens norm, which has acquired an important position in international law.

REFERENCE

[1] https://www.icj-cij.org/files/case-related/91/091-20070226-JUD-01-00-EN.pdf

[2] https://www.dipublico.org/1567/suleiman-al-adsani-v-government-of-kuwait-and-others/

[3] https://www.icj-cij.org/en/case/117

[4] https://www.icj-cij.org/en/case/143