Jus Cogens- An Undefined Legislation
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This Blog is written by Ashutosh Rajput from Hidayatullah National Law University, Raipur. Edited by Uroosa Naireen.
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INTRODUCTION
All the countries ought to adhere to certain norms at the International level. Jus Cogens, a rudimentary principle of the International Law can be traced back to the Roman law which originates from the idea that certain legal rules cannot be contracted out, given the fundamental values they uphold. It enlists certain norms from which no derogation is permitted by way of particular agreements [1]. It is also termed as compelling law or coercive law as these norms are made binding irrespective of the parties’ consent, unlike Jus dispositivum where there is prior consent. David Kennedy termed it a super-customary norm. These norms are binding on all the nations and were first enshrined in the Vienna Convention on International Treaties of 1969 and were subsequently confirmed in 1986 respectively [2]. If any of the countries who are party to the aforesaid conventions, violates the said norms, then upcoming situations such as force majeure or any other consequences cannot be invoked. Though there are no established peremptory norms but several accepted norms recognized by the international community of States, parties have to adhere to it, with the act of humanity such as the prohibition of racial discrimination, prevention of war crimes, and/or genocide, no infringement of privacy, and no slavery. It is a stricter rule to adhere to it and no country can violate it no matter if any country’s custom endows it.
SIGNIFICANCE OF THIS DEVELOPMENT
A world with diverse countries having different frequencies ought to have universal legislation. Jus Cogens, on the one hand, attempts to lay a universal norm that binds all the nations to it and on the other hand, it lays several consequences for those not adhering to it though the consequences are not specified and have a universal jurisdiction wherein the states are individually responsible for its violation. The basic purpose is to spread humanity and peace. It is considered as a whole new source of International law as it is neither formed from the existing norms nor is directly originating from the International law. As it comes within the ambit of the convention of 1969 and 1986, prima facie, it is clear that it will benefit the large section of the society.
IMPACT
It has a much wider impact as no derogation is allowed to such norms and is recognized as a natural law that pertains to maintain humanity and peace. Further, the Permanent Court of International Justice ensures that the International agreements are not contrary to public policy. As held in the Nuremberg Trials, criminal offenses are to be enforced not only against the States but also against the individuals. The International Law Commission also contended that atmospheric pollution and sea pollution violates the compelling norm of International law; this shows its comprehensive interest to secure and formulate the act of humankind. This doctrine constitutes obligations erga omnes which means ‘towards all’ or ‘towards everyone’.
PROVISIONS IN THE VIENNA CONVENTION ON INTERNATIONAL TREATIES
Article 2(f) defines contracting state as a state consented to bound by a treaty whether or not the treaty has entered into force.
Article 53 states A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of 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.
It fundamentally enshrines that a treaty will be void if it conflicts with the compelling norms and no derogation will be permitted. It can only be modified subsequently to any law which will have the same character as the previous norm had.
Article 64 states new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.
Any existing treaty which conflicts the existing norm will be void and will have no value and is terminated on becoming void.
CASE LAWS
The Democratic Republic of the Congo v. Rwanda
In 2002, the Democratic Republic of Congo (DRC) filed an application before the Court of Law against Rwanda as the latter caused serious human rights violations to the former and breached the United Nations Charter and the Charter of the Organization of African Unity. The Court ruled that it did not have jurisdiction as to the application filed by the DRC but later the Court contradicted its previous judgment and held that it comes within the ambit of Jus Cogens as per Article 66 of the Vienna Convention of the Law of Treaties of 1969 which validated the DRC’s stand.
Michael Domingues v. United States
Michael Domingues was sentenced to death in Nevada; he was convicted as he murdered two people when he was just 16 years old. He laid down his case before the Inter-American Commission of Human Rights wherein he got convicted irrespective of the law. Furthermore, the United States contended that Jus Cogens does not establish that individuals below 18 years will not be imposed by the death sentence. While it was held that as per Jus Cogens norms, no individual will get convicted of a death sentence if such individual is below the age of 18 years.
Roper v. Simmons
The United States banned the execution of juvenile offenders on the account of the developing international norms and further observed that though it is said that the International laws are advisory in nature but still it makes the State bound to enforce Jus Cogens. It could be misused as to the interpretation of the rules.
Germany v. Italy
German had committed various war crimes against Italy between 2004 and 2008 which led to the issue of various judgments awarding damages to the plaintiff as the latter were the victim of war. Subsequently, in 2008, Germany instituted proceedings before the International Court of Justice that they have jurisdictional immunity as per the customary International law though it violates the Jus Cogens and the individual criminals may be responsible for the horrendous act individually.
Bosnia & Herzegovina v. Serbia & Montenegro
Serbia alleged to have attempted genocide of certain Muslim populations of Bosnia & Herzegovina which led to the infringement of the genocide convention. It was held that though Serbia was not involved in it it failed to prevent it, it is a clear violation of the Jus Cogens as per Justice Lauterpacht.
Nicaragua v. United States
United Nations undertook certain activities against Nicaragua. The International Court of Justice held that the United States violated customary international norms of its own country of not using force against another country and observed that the action by the United States is not out of necessity and clearly violates the Jus Cogens.
Al-Adsani v. Kuwait
The claimant brought an action against the Kuwait government as the former was tortured by the latter’s officials but Kuwait got immediate immunity from being sued due to the doctrine of State immunity as it was a signatory to Jus Cogens.
Prosecutor v. Anto
The Court ruled that Jus Cogens has a deterrent effect and torture is prohibition as per Jus Cogens and no derogation is allowed.
Belgium v. Spain
The Court propounded that Jus Cogens is obligation erga omnes as it involves all International States within its ambit.
ANALYSIS
This doctrine is much superior to the rules of States due to which the States may not showcase their ability to change or introduce International law. The liability of the States is the sine qua non with this norm therefore; the State has to compulsorily follow the norm irrespective of their consent and cannot be escaped by such norms. It also does not have any formal or written norms that can be made to adhere to or it will make any new day to day scenario under its undefined norms.
There is no established method which can help to identify as to what constitutes a peremptory norm. But if any norm threatens the nation’s peace and security then it can be concluded that it comes against the ambit of Jus Cogens norms hence void but not necessarily, for instance aggression by one country can merely be retaliation as to mankind. The same goes for the war crimes as sometimes due to disturbance of the International laws the crime scenes take place.
Article 53 talks that this treaty as accepted and recognized as a whole and as per the International Law Commission, Article 19 of the State Responsibility the term ‘as a whole’ means accepted by all the countries and does not mean unanimous recognition that will have the right to veto.
CONCLUSION
It can be concluded that there is little ambiguity in this principle as to what fundamentally constitutes an act against humankind as it will differ from nation to nation and the same cannot be made universal, therefore, a comprehensive codification of the International law would obviate such problems. Positivist school of jurisprudence recognizes this doctrine as trivial. This doctrine also has certain positive sides as to maintain peace and security in a country [3]. It can be said that this rule is made for the progressive development and Article 64 creates a burden to the States to create international obligations with their respective customary norms.
REFERENCES
(3) https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1011&context=scujil