Jus Cogens

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by Ulf Linderfalk

Contents

Introduction

Up until the beginning of the 1960’s, most legal teaching assumed that international law was throughout disposable (jus dispositivum). If and to the extent that two or more legal subjects found that general international law did not correspond well to their particular needs or interests, they were always free to contract out of this law by concluding an agreement inter se, or by acting for the development of a special legal custom, which by virtue of the lex specialis or lex posterior maxim would then be given priority. Since the adoption of the 1969 Vienna Convention on the Law of Treaties (VCLT), such theories do not hold anymore, the assumption now being that some parts of international law might actually be non-derogable. The commonly used term for this law is jus cogens (or peremptory international law). Article 53 of the VCLT defines the concept as follows: “[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.”

As can be seen from Article 53, the concept of jus cogens presupposes the existence of a particular legal regime. It presupposes, first of all, the existence of rules commanding or prohibiting some certain action, such as for instance acts of genocide and aggressive warfare. In the international legal literature, this particular set of rules is often rather bluntly referred to as peremptory norms of international law, or just jus cogens. To add clarification, they will here be referred to as first order rules of jus cogens. Secondly, the concept of jus cogens presupposes the existence of rules specifying the legal consequences ensuing from the postulated superiority of jus cogens over ordinary international law. For instance, when a treaty is in conflict with a first order rule of jus cogens created prior to the conclusion of the treaty, the entire treaty shall be void. Similarly, when the purport of a reservation to a treaty is in conflict with a first order rule of jus cogens, that reservation shall be void. Henceforth, all rules of this kind will be referred to as second order rules of the jus cogens regime.

The international jus cogens regime, as described in the above, raises a series of difficult questions. This entry will focus upon three questions in particular. Briefly stated, they concern the definition of the jus cogens concept (section 2), the source of jus cogens obligations (section 3), and the status of the second order rules of jus cogens (section 4). In the concluding part of the entry, a few words will be added about the use of jus cogens arguments in international legal discourse.

How can first order rules of jus cogens be identified?

To close the gap between first and second order rules of jus cogens, we need a rule that can help us identify first order rules of jus cogens. It has been suggested that this is the rule enshrined in Article 53 of the VCLT, and actually, like most international lawyers today, we might go along with this suggestion without hesitation if it were not for the criticism also sometimes expressed.

According to a first point of critique, the definition provided in Article 53 is circular. Naturally, when states accept and recognize a first order rule (R) as a norm, from which no derogation is permitted, etcetera, this cannot be the constitutive act by which a jus cogens status is conferred on R. That would commit us to the conclusion that states wrongly assumed R to be a norm, from which no derogation is permitted, etcetera. It has to be taken for granted that if states accept and recognize R as jus cogens, they do so for good reason. They do so because according to their judgment, international law does not permit derogations from R, and it does not accept modification of that rule except when accomplished by a new norm of jus cogens. Hence, by the way Article 53 is stated, the definition assumes what remains to be established.

According to a second point of critique, Article 53 is self-contradictory. Given that norms of jus cogens derive from one of the usual norm-creating processes (see section 3), the substitution of a first order rule of jus cogens (R) would seem to entail, at least partly, a derogation of that same rule. Depending on the source of jus cogens obligations, it would require either a new rule of customary international law, a new international agreement, or a new general principle. Judged by the wording of Article 53, this would seem to make the substitution of R logically impossible, since, as clearly stated, derogations from jus cogens are not permitted.

What is the source of jus cogens obligations?

Depending on the answer international lawyers give to this question, they can be described as belonging to either one of two different camps. According to the position of the one camp, jus cogens obligations derive from natural law. The proponents of this position argue that since rules of jus cogens permit of no derogation, they must be applicable to (at least) all states of the world whether they have consented to be bound by those rules or not. Hence, jus cogens obligations cannot possibly derive from the usual norm-creating processes, i.e. they cannot be rules of international customary law, international agreements, or general principles “recognized by civilized nations”. Those processes are all based on consent, which implies that a state cannot be bound by a rule of law to which it has not consented. And if the usual norm-creating processes are all based on consent, inevitably, rules deriving from those processes will be as well. Apart from the fact that it is not obviously the case that the creation of customary international law and general principles require consent in the limited sense assumed by proponents of natural law, the flaw of this argument is that it confuses the processes creating a rule of law with the source of the ensuing legal obligation. It takes for granted that just because the creation of rule of law requires the express or implicit consent or acquiescence of those meant to be bound by the rule, it cannot have the status of non-derogable law. To refute this assumption, a mere reference to a treaty provision like Article 103 of the Charter of the United Nations may seem sufficient: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”

A second argument sometimes used by natural law proponents goes as follows: ‘The superior status of jus cogens cannot possibly derive from the usual norm-creating processes, since no such process is hierarchically superior to the others.’ This second argument is just a variant of the first, and hence, it can be refuted for similar reasons. The argument confuses the hierarchical relationship that may exist between single rules of law with the relationship existing between different norm-creating processes. Just because there is no general hierarchical relationship between the different norm-creating processes, it does not mean that international law-makers cannot decide that one rule shall be applied prior to another. Once again, Article 103 of the UN Charter is a case in point.

In the camp of those lawyers, who consider jus cogens obligations to be part of positive international law, it is to some extent debated whether or not the origin of jus cogens can be limited to any one of the usual norm-creating processes. Article 53 of the VCLT categorizes jus cogens as “general international law”. This suggests that jus cogens is either general customary international law, or a set of general principles, or perhaps both. According to the view of some international lawyers, however, jus cogens obligations may also take the form of an international treaty or a regional customary international law: ‘Article 53 defines jus cogens only for the purposes of the Convention, and hence, this Article cannot be decisive for the identification of such norms more generally.’ This argument can be criticized on several grounds. Most importantly, it ignores the role played by Article 53 in modern-day international legal practice, where the Article 53 definition is applied to situations with little regard to whether they come within the scope of application of the VCLT or not.

What is the status of the second order rules of jus cogens?

Although the Vienna Convention presupposes the existence of a set of rules tailored to govern such things as possible conflicts between first order rules of jus cogens and ordinary international law, the Convention is silent as to the particular status of this set of rules. Some commentators have suggested that, clearly, they must be jus cogens, too. It would be pointless “if a norm was endowed with peremptory status, but its effects and legal consequences were governed by the criteria of ordinary rules” – this is the supporting argument. (Orakhelashvili, p. 80.) It can be argued that this suggestion takes us full circle. As stated in section 2, we are inclined to assume that if states accept and recognize a rule of law (R) as jus cogens, then this is because, according to their judgment, international law does not permit derogations from R, and it does not accept modification of that rule except when accomplished by a new norm of jus cogens. Given this assumption, a classification of the second order rules as jus cogens would seem to entail that, one way or another, those rules are capable of explaining their own status.

Conclusions

In the analysis of the international jus cogens regime, clarity requires that we acknowledge the limited purpose of Article 53 of the VCLT. It explains the existence of jus cogens. According to Article 53, the existence of a rule of law (R) as jus cogens lies in the state of affairs described by the following empirical judgment:


EJ3: 'The international community of states accepts and recognises as legally authoritative the set of rules, by virtue of which no derogations from the rule R are permitted, and all modification of R by means of ordinary international law is prohibited.'


Article 53 does not pretend to explain the creation of jus cogens obligations. That explanation has to be looked for elsewhere. As I would suggest, partly, the explanation of a rule (R) as jus cogens lies in a combination of the different states of affairs described by EJ3 and the further empirical judgments EJ1 and EJ2:


EJ1: ‘States generally do not derogate from the rule R, and they generally do not modify R by means of ordinary international law.’


EJ2: 'States widely subscribe to the opinion (PJ0) that it would be desirable and appropriate if customary international law permitted no derogations from the rule R and prohibited all modification of that same rule by means of ordinary international law.’


Partly, the explanation lies in the widespread subscription by states in the practical judgments PJ1 and PJ2:


PJ1: 'The widespread subscription to the opinion PJ0, together with the state of affairs described by the empirical judgment EJ1, are sufficient to warrant the judgment that there is now in customary international law an authoritative set of rules permitting no derogations from the rule R and prohibiting all modification of R by means of ordinary international law.’


PJ2: ‘There is now in customary international law an authoritative set of rules, by virtue of which no derogations from the rule R are permitted, and all modification of R by means of ordinary international is prohibited.’


This analysis serves to divest the international jus cogens regime of much of the mystery it has come to be associated with. First, the analysis makes intelligible the definition of jus cogens enshrined in Article 53 of the VCLT. According to Article 53, if we wish to establish the existence of a rule of law as jus cogens, we are required to show that states widely subscribe to the opinion that by virtue of an authoritative set of rules existing in customary international law, no derogations from the rule R are permitted, and all modification of the rule R by means of ordinary international is prohibited. There is nothing paradoxical or circular about this requirement. The requirement becomes paradoxical only when it is offered as the sole explanation of the creation of R as jus cogens. As shown in this section, however, the real explanation of the creation of R as jus cogens requires further elaboration.

Secondly, the analysis reveals the true source of jus cogens obligations. The important thing is not so much the source of the first order rules of jus cogens. The jus cogens status of a rule of law derives from the creation and modification of the second order rules of the jus cogens regime, which rules are not themselves jus cogens (for reasons earlier indicated in section 4) but ordinary customary international law. Stated differently, ordinary customary international law is the source of jus cogens obligations. This observation explains how a first order rule of jus cogens can be substituted. Substitution is accomplished by the modification of the second order rules of the jus cogens regime, and not by the modification of the first order rule itself.

Thirdly, the analysis helps us come to grips with the way jus cogens has come to exploited in modern-day international legal discourse. It remains a fact that Article 53 of the VCLT does not provide any explanation as to why, apparently, the international community of states accepts that some legal norms are non-derogable, etcetera, but not others. This leaves international lawyers speculating about the ultimate justification of the jus cogens regime. Depending on the justification assumed, different lawyers resort to different criteria for the identification of jus cogens obligations. Not surprisingly, they also have widely different opinions about the specific contents of the jus cogens regime. What these people ignore is the true function of the jus cogens concept. Jus cogens is the meddling link between the legal consequences ensuing from a part of international law and some highly controversial moral and political ideas. At the adoption of the VCLT, although generally states agreed on the consequences ensuing from jus cogens, there was no common agreement concerning the criteria to be used for the identification of such norms in specific cases. The definition enshrined in Article 53 conceals this fact: morally as well as politically, jus cogens remains a contested concept. Therefore, it might be said that if a person argues that the ultimate justification of the international jus cogens regime lies in any one specific rationale, and that this rationale proves the existence of any one rule belonging to the international jus cogens regime, then this person should be accused of misusing legal language and manipulating the law.

Bibliography

Byers, Michael, “Conceptualising the Relationship between Jus Cogens and Erga Omnes Rules”, Nordic Journal of International Law, Vol. 66 (1997), pp. 211-239

The Concept of Ius Cogens in Public International Law, Papers and Proceedings, Report of a Conference organized by the Carnegie Endowment for International Peace, at Lagonissi, 3-8 April 1966 (1967)

Danilenko, Gennady, “International Jus Cogens: Issues of Law-Making”, European Journal of International Law, Vol. 2 (1991), pp. 42-65

Hannikainen, Lauri, Peremptory Norms (Jus Cogens) in International Law (1988)

Kadelbach, Stefan, Zwingendes Völkerrecht (1992)

Kolb, Robert, Theorie Du Ius Cogens International (2001)

Linderfalk, Ulf, “The Effect of Jus Cogens Norms: Whoever Opened Pandora’s Box, Did You Ever Think About the Consequences?”, European Journal of International Law, Vol. 18 (2007), pp. 853-871

Linderfalk, Ulf, “Normative Conflict and the Fuzziness of the International Ius Cogens Regime”, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (Heidelberg Journal of International Law), Vol. 69 (2009), pp. 961-977

Linderfalk, Ulf, “The Creation of Jus Cogens: Making Sense of Article 53 of the Vienna Convention”, forthcoming (2010)

Orakhelashvili, Alexander, Peremptory Norms in International Law (2006)

Rozakis, Christos, The Concept of Jus Cogens in the Law of Treaties (1976)

Verdross, Alfred, “Jus Dispositivum and Jus Cogens in International Law”, American Journal of International Law, Vol. 60 (1966), pp. 55-63

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