[What follows is something I first wrote in 2004 and have since slightly revised. I hope to further revise it anon, but I want to share it first to see if there are any comments or suggestions that might be of help in that endeavor. One part of the revision will attempt to address a few of the arguments made in Umut Özsu’s chapter, “An Anti-Imperialist Universalism? Jus Cogens and the Politics of International Law,” found in Martti Koskenniemi, Walter Rech, and Manuel Jiménez Fonseca, eds. International Law and Empire: Historical Explanations (Oxford University Press, 2017): 295-313.]
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“The Vienna Convention on the Law of Treaties discusses what are called jus cogens norms, norms that cannot be overridden even by express treaty. Given their place in international law, jus cogens norms are sometimes equated with constitutional principles in a domestic legal system [arguably and in particular, the notion of ‘human dignity’ found in many constitutions in particular appears to stand apart in this respect]. Article 52 of the Vienna Convention provides that a ‘a norm of jus cogens must satisfy three tests: the norm must be (a) “accepted and recognized by the international community of States as a whole” as a norm from which (b) “no derogation is permitted,” and which (c) “can be modified only by a subsequent norm of general international law having the same character.”’ Jus cogens norms are norms from which no derogation is permitted, and hence seemingly norms that sit at the apogee of international norms, and for which are obligations erga omnes, that is, obligations on everyone.” — Larry May (quoting from Ragazzi [see the references], Aggression and Crimes Against Peace (Cambridge University Press, 2008): 152.
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Jus Cogens (L., ‘compelling law’) is a peremptory (mandatory) norm of general international law that permits no derogation. Such a norm or rule has plausibly—but I think inaccurately—been viewed as one of the “general principles” of law (or part of the ‘common judicial ethos of civilized states’) that falls within the hierarchically ordered sources of international public law: in other words, in some sense ranked behind treaties (or ‘conventions’) and the customary practices of states (‘consensual’ sources), yet placed before the judicial decisions and writings of the publicists (‘nonconsensual’ sources) (Article 38 of the Statute of the International Court of Justice). However, while this is not an altogether an accurate or felicitous categorization, it does allow us to consider the conceptual origins and properties of such a norm as “nonconsensual” in the first place, if only because jus cogens reflect the stubborn persistence of fundamental facets or features of Natural Law philosophy and principles, even if we choose to abandon or ignore some of the metaphysical presuppositions and assumptions (especially those that are manifestly religious in character, that is, understood as belonging to, as it were, a particular religious tradition) specific to Natural Law traditions.
This historical and conceptual link to Natural Law formulations accounts for the status of jus cogens norms (the apparent redundancy—‘compelling law’ norms—being morally suggestive) as overriding principles in the international legal system, their conspicuous indelibility, and the fact that, in Brownlie’s words, “more authority exists for the category of jus cogens than exists for its particular content” (Brownlie 1998: 516-17). In part this is owing to the generality and somewhat abstract character of Natural Law propositions, which are often open-ended, a feature viewed, depending on one’s legal perspective, as either a virtue or a vice. In one sense, jus cogens norms, in keeping with the Natural Law assertions from which they are derived, are in the first instance about how human beings must be treated if we are to assign enduring and universal status to men and women as, minimally, rational and moral agents capable of individuation and, given the right conditions and circumstance, self-realization as well (the latter need not be conceived in religious terms, as the Marxist conception of same reveals). At the same time, this serves as an affirmation of the ongoing relevance of moral principles and the corresponding value and rational assessment of international law norms. Jus cogens norms represent an unabashed, arduous and ambitious attempt to combine the notions of “is,” “ought,” and “can” while asserting or implying the claim that human beings are, at least for overarching legal purposes (and whatever else he may be), both freedom-loving and justice-seeking, creatures possessed of intrinsic dignity, thus the locus of moral capacities or powers rendering them worthy of being accorded fundamental human rights so as to recognize, respect, and protect human dignity, the pursuit of freedom and justice, all of which is indissolubly bound up with our potential and actual moral capacities, virtues, and principles.
The relatively recent invocation of such norms in international law suggests a genuine moral endeavor to canalize the legal system’s ability to express an urgent and heartfelt response to the comparatively rampant barbarism and enormities of evil (aerial and atomic bombing, genocide, famines, war crimes …) practiced by more than a few (democratic and otherwise) nation-states possessed of an intellectual, technocratic, and political hubris invariably associated with rather crude notions of reason, progress, and modernity in the twentieth century and often sullied with the histories of colonialism and empire. The collective crimes of these states were often committed under the putative warrant or cover of raison d’état and frequently tied to ill-understood or morally evasive “dirty hands” apologetics or justifications and ideologically self-serving conceptions of “realism.” Despite its fundamental nonconsensual nature or essence, jus cogens is not, in fact, on the same footing as what are known as “general principles of law,” be it, for instance, collateral estoppel, reparation for damage, or equity (here, in its ordinary language or principle of justice sense); for such principles, found within municipal law (i.e., domestic legal systems), largely serve as “gap fillers” or supplementary rules of international law. Enumerating a hierarchical priority of application with respect to sources is irrelevant to jus cogens norms, or, if one prefers, jus cogens norms are an anomaly or exception to this schema in as much as they can invalidate (trump) other bodies of rules, those generated by treaty or custom, for example, and therefore transcend, morally speaking, hierarchical schemes of the sources of international law. At the same time, a jus cogens norm, by definition, implication, and possible institutionalization, makes explicit reference to those generalizable values and minimal moral principles infrequently and inchoately expressed and realized on occasion in the international legal system itself.
Examples of jus cogens rules are varied (and candidates for such status even more so) and, at times, vigorously contested, but commonly cited exemplars would include the following: the United Nations Charter’s prohibition on the use of force (Art. 2.4); the laws of genocide; the principle of racial non-discrimination; some human rights (e.g., the right to life and freedom from torture); general rules on (collective) self-determination; and crimes against humanity. The formal function and practical effect of jus cogens is a clear and decisive legal delimitation of and thus necessary constraint on the scope and substance of State sovereignty. If jus cogens trumps the will or consent of contracting or colluding States, it formally and importantly functions on the order of an international constitutional constraint, constraining, that is, the possible or actual behavior of States to the degree that such behavior egregiously detracts from, erodes, or subverts the constituent elements of global public order and security, transnational civil society, or the common good of the international community. Minimally, its articulation may have a deterrent effect, as states seek to avoid shunning and ostracism in the international community, or informal and formal sanctions from the dominant states. Depending on one’s vantage point, the vagueness or open-ended texture of jus cogens is either political liability or ethical leverage, possibilities obscured somewhat by the putative “positivization” of jus cogens in the Vienna Convention on the Law of Treaties (1968, 1986), which includes provision for resort to the International Court of Justice (ICJ) in the event of intractable disputes as to the norm’s precise content or specific application. The definition of a peremptory norm provided by the Convention looks forward to its acceptance and recognition by the “international community of States as a whole.” Much rides on the precise interpretation of this clause. Apart from the vague formulation, it helps to explain why some insist on seeing jus cogens as an admittedly “higher” exemplification of, if not simply and merely, customary international law. A. Mark Weisburd, for example, goes to the heart of the problem: “a concept that originated in the belief that moral principles imposed legal limits on state authority—in effect, applying a natural law approach—was codified in a form that grounded limitations on states’ freedom solely on the acceptance of those limits by states, that is, in a form shaped to satisfy positivist conceptions of the nature of law” (Weisburd 2002: 20).
Yet legal validation through partial codification should not be confused with the use of jus cogens by jurists to shape the international legal system to fundamental values and ends like the pursuit of justice and the promotion of public good: jus cogens’ conceptually intrinsic moral aspirations are not the same as or reducible to the conditions of its validity; nor will it do to derisively dismiss its increased invocation and application in the world community as merely “rhetorical.” Courts continue to act as if the content of jus cogens’ is not confined to customary international law as created by the practice of states. Moreover, as noted by de Aréchaga, the Convention’s definition confuses the legal effects of the rule with its intrinsic nature: “…it is not that certain rules are rules of jus cogens because no derogation from them is permitted; rather, no derogation is allowed because they possess the nature of rules of jus cogens” (in Cassese 2001: 140).
Jus cogens norms can abide by the empirical possibility that, on occasion, “might makes right” (e.g. humanitarian intervention in cases, say, of crimes against humanity by powerful states such as members of the UN Security Council), but they cannot endorse this proposition as a normative prescription (as occurs with ‘victor’s justice’). One of the assumptions of those drawn to a non-positivist conception of jus cogens is the cogency and desirability of a moral theory of international law (one generated by something similar if not identical, transnationally speaking, to a Rawlsian ‘overlapping consensus’), an assumption explicitly denied by those Realists who “typically draw a meta-ethical implication from their descriptive-explanatory-theory: broadly, that morality is inapplicable to international relations” (Buchanan and Golove 2002: 873).
Unlike the Realist, and like Natural Law principles in general, jus cogens “places the burden of proof squarely upon those who wish to justify murder or torture, untruth or inequality, rather than upon those who wish to invoke the sacred right to life, liberty, to truth, and to a measure of equal respect”(Iyer 1979: 60). The formal natural law properties of a jus cogens norm (metaphysical, but not necessarily religious) means that there is an inescapably logical incompleteness to any specific formulation or codification, no doubt evidence for those eager to conclude the concept lacks operative force and practical import, and perchance one reason for not a few writers to conclude (implausibly, in my view) that “the status of jus cogens as an element of international law is quite confused”(Weisburd 2002: 25). This goes some distance in accounting for the fact that “partly because of its perceived potency, a peremptory norm is more difficult to prove than is a usually controversial rule of customary international law” (Janis 1999: 64).
We await a more thorough philosophical and moral examination of international law by legal theorists that might clarify the Natural Law (or Natural Law-like) assertions presupposed or assumed by any given jus cogens rule. A filling out of the Natural Law propositions that buttress a proposed jus cogens norm would clarify its moral significance and legal content, while prompting the search for a stable transnational rational and moral consensus of citizens and jurists alike as a prelude to further successful institutionalization. The worthiness of any proposed peremptory norm would thereby make explicit the ratio decidendi if you will, that warrants jus cogens status. And it could further serve to allay current fears about the possible political abuse or misuse of jus cogens.
The assertion and justification of jus cogens is logically and legally prior to the determination of obligatio erga omnes (obligation towards all, either distributively or collectively), that is, obligations that are universal and therefore binding on all States. As a jus cogens norm by definition concerns values and goals fundamental to the entire international community “in view of the importance of the rights involved” (Barcelona Traction case), its legal corollary is an obligation erga omnes. International crimes that rise to the level of jus cogens create obligations erga omnes that are non-derogable, including, but not limited to, the following: a duty to prosecute or extradite, the nonapplicability of statutes of limitations, and universal jurisdiction over perpetrators of such crimes. The Rome Statute of the International Criminal Court, which entered into force on July 1, 2002, aims to safeguard the rights and obligations of jus cogens norms in that domain of international law (at least for parties to the statute).
Both jus cogens and obligations erga omnes permit us to appreciate the oft-forgotten truth that “International law is much more than a simple set of rules. It is a culture in the broadest sense in that it constitutes a method of communicating claims, counter-claims, expectations and anticipations as well as provide a framework for assessing and prioritizing such demands” (Shaw 1997: 53). Therefore any philosophical and corresponding legal treatment of jus cogens (and obligations erga omnes) will need to untangle the analytic, epistemic, and moral issues and questions that properly belong to democratically sensitive international law. And any institutionally sensitive moral theory of international law should assist jurists in clearing up the apparent or alleged conceptual confusion that clings to jus cogens. It will not thereby eliminate, however, the disagreements and conflict that are part and parcel of attempts to further incorporate such peremptory norms into international law, attempts that betray a longing for, if not presaging, what has been variously termed world or global law, transnational or cosmopolitan law.
References and Further Reading
- Besson, Samantha and John Tasioulas, eds. The Philosophy of International Law (Oxford University Press, 2010).
- Brownlie, Ian. Principles of Public International Law (Oxford University Press, 5th ed., 1998).
- Buchanan, Allan E. The Heart of Human Rights (Oxford University Press, 2013).
- Buchanan, Allen and David Golove, “Philosophy of International Law,” in Jules Coleman and Scott Shapiro, eds., The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford University Press, 2002): 869-934.
- Capps, Patrick. Human Dignity and the Foundations of International Law (Hart Publishing, 2010).
- Carozza, Paolo G. “Human Rights, Human Dignity, and Human Experience,” in Christopher McCrudden, ed. Understanding Human Dignity (2011): 615-629.
- Christenson, G.A. “Jus Cogens: Guarding Interests Fundamental to International Society,” Virginia Journal of International Law, 28, 1988: 585-628.
- Cassese, Antonio. International Law (Oxford University Press, 2001).
- Daly, Erin. Dignity Rights: Courts, Constitutions, and the Worth of the Human Person (University of Pennsylvania Press, 2013).
- Danilenko, Gennady M. “International Jus Cogens: Issues of Law-Making,” European Journal of International Law, 2, 1991: 42-65.
- Donnelly, Jack. Universal Human Rights in Theory and Practice (Cornell University Press, 3rd ed., 2013).
- Düwell, Marcus, et al., eds. The Cambridge Handbook of Human Dignity: Interdisciplinary Perspectives (Cambridge University Press, 2014).
- Hill, Thomas E., Jr. Dignity and Practical Reason in Kant’s Moral Theory (Cornell University Press, 1992).
- Hill, Thomas E., Jr. “In Defense of Human Dignity: Comments on Kant and Rosen,” in Christopher McCrudden, ed. Understanding Human Dignity (2011): 313-325.
- Kateb, George. Human Dignity (Belknap Press of Harvard University Press, 2011).
- Kraynak, Robert and Glenn Tinder, eds., In Defense of Human Dignity: Essays for Our Times (University of Notre Dame Press, 2003).
- Luban, David. Legal Ethics and Human Dignity (Cambridge University Press, 2007).
- May, Larry. Crimes Against Humanity: A Normative Account (Cambridge University Press, 2005).
- May, Larry. “Jus Cogens Norms and the Crime of Aggression,” in May’s Aggression and Crimes Against Peace (Cambridge University Press, 2008).
- McCrudden, Christopher, ed. Understanding Human Dignity (Oxford University Press, 2014).
- Morsink, Johannes. Inherent Human Rights: Philosophical Roots of the Universal Declaration (University of Pennsylvania Press, 2009).
- Orakhelashvili, Alexander. Peremptory Norms in International Law (Oxford University Press, 2006).
- Parker, Karen and Lyn Beth Neylon, “Jus Cogens: Compelling the Law of Human Rights,” 12 Hastings International and Comparative Law Review 411, 419-22 (1989).
- Ragazzi, Maurizio. The Concept of International Obligations Erga Omnes (Oxford University Press, 1997).
- Rosen, Michael. Dignity: Its History and Meaning (Harvard University Press, 2012).
- Shaw, Malcolm N. International Law (Cambridge University Press, 4th ed., 1997).
- Steiner, Henry J. and Philip Alston. International Human Rights in Context: Law, Politics, Morals (Text and Materials) (Oxford University Press, 2nd ed., 2000).
- Verdross, Afred von. “Jus Dispositivum and Jus Cogens in International Law,” American Journal of International Law, 60, 1966: 55-63.
- Waldron, Jeremy (et al.) Dignity, Rank and Rights (Berkeley Tanner Lectures, 2009) (Oxford University Press, 2015).
- Weisburd, A. Mark. “American Judges and International Law,” Vanderbilt Journal of Transnational Law, Vol. 36, 2003, No. 5.
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