15 Jus cogens and human rights

Prof. Nitin Gomber

Introduction

• Established by Vienna Convention on the Law of Treaties, 1969.
• Ar.53, VCLT-a norm which is accepted and recognized by the international community of States as a whole.
• It is such a peremptory rule of International Law which overrides any rule or agreement that is in conflict with it.
• Must be followed by all nations of the world and its nature is such that no derogation is permitted from such a rule.
• According to Ar.66, VCLT it is the ICJ that ultimately decides what a jus cogens norm is, if there’s disagreement between states.

Learning Outcomes

• Students will be familiarized with Jus Cogens, Obligations Erga Omnes and Judicial Decisions.
• Students will learn how to comprehend a legal issue and to find and apply legal rules to a given situation/case through background readings and case-law analysis.

The concept of Jus Cogens

Jus cogens is in fact a Latin term which means ìCompelling lawî. It essentially means that it is such a peremptory rule of International Law which overrides any rule or agreement that is in conflict with it. Such a norm, it is said, must be followed by all nations of the world and its nature is such that no derogation is permitted from such a rule.

The formal establishment of the concept of jus cogens norms happened by way of Vienna Convention on the Law of Treaties, 1969. The now-famous Article 53 of the VCLT specifies that ìA 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.î This foregoing section provides the least amount of clarity on how exactly a jus cogens norm is born. However, one thing that is clear is that it is a norm which is accepted and recognized by the international community of States as a whole.

In this regard, however, it is also important to look at Article 66 of the VCLT, which specifies that ìAny one of the parties to a dispute concerning the application or the interpretation of Article 53Ö by a written application, submit it to the International Court of Justice for a decision unless the parties by common consent agree to submit the dispute to arbitration.î Therefore, it is the International Court of Justice that ultimately decides what a jus cogens norm is, if thereís disagreement between states. This aspect assumes significance as States are willing to raise the status of an ordinary norm to the level of jus cogens in order to support their contention in court. Here critiques are quick to point out that this is done for selfish reasons by the State. The fact of the matter is that by way of these submissions itself, the International Court of Justice gets the much-needed opportunity to opine on the matter at least.

Jus Cogens and hierarchy amongst sources of International Human Rights Law

Under domestic law, there is a clear constitutional normative hierarchy amongst the various legal norms that are to be followed. For example, in the Indian legal system, we have laws made by the Parliament which are the supreme law of the land. Thereafter, we have judicial interpretations which further expand the scope and applicability of these laws. Of course there are other sources of law that we need to look at in India, but the point we come across is that we know where to look and an what order. However, this is not true in the international arena, where there is no clear constitutional normative hierarchy in fact there is no one constitution that states abide by !

The foregoing situation becomes more and more complicated with the proliferation of multiple international courts (like ECtHR, ICJ, ICC among others), along with specialized agencies that deal with subject-specific issues only. With so much to look at, the question becomes where to look first for an internationally binding norm? The answer to this is not simple. However, we look at the various Jus Cogens norm on how they fare.

Article 38 (1) of the Statute of the International Court of Justice lays down the following sources of law that the ICJ is to look at before giving its decision: (a) International Conventions, (b) International Custom, (c) General Principles of law recognized by civilized nations, and a subsidiary means i.e. (d) judicial decisions and the teachings of the most highly qualified publicists of various nations. From the foregoing it is very clear that the drafters of the Statute did in fact contemplate some hierarchy amongst the sources listed there.

On similar lines, Article 53 of the Vienna Convention on the Law of Treaties, 1969 (VCLT) provides that a treaty will be void ìif, at the time of its conclusion, it conflicts with a peremptory norm of general international lawî. Further, Article 64 of VCLT lays down that if a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.

Now, having a cumulative look at the foregoing provisions, it wouldnít be wrong to say that there is a certain level of normative hierarchy within international law. This is especially in light of Article 103 of the UN Charter which says, 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.

Given the foregoing, along with Article 64 of VCLT, it wouldnít be wrong to point out that Jus Cogens norms sit right at the top of the ladder amongst sources of international human rights law. Moreover, given the fact that these norms defeat the provisions of any conflicting pre-existing treaty, it also wouldnít be wrong to point out that in the context of human rights, Jus Cogens tends to play a very important role.

The question also arises of the fate of Jus Cogens norms in case of conflict between UN Charter obligations, Security Council Resolutions and Jus Cogens norms. The argument has been summed up beautifully by Mr. Zenovi? in his research paper titled ìHuman rights enforcement via peremptory norms  a challenge to state sovereignty:

In the authorís view, in the case of conflict between UN Charter obligations or SC decisions and jus cogens norms, the latter should prevail by the very essence of their normative capacity. These are the values that the international community recognized as non? derogable and no treaty as stipulated in the Vienna Convention, reflecting the customary law, can be superior to them. The UN Charter is formally a multilateral treaty, the expression of the will of the signatory states. On the one hand the UN Charter, due to its extraordinary significance, is one of the treaties in which peremptory norms can be identified. On the other hand, if jus cogens is a reflection of existing law, a form of customary law that existed in the international legal order, it is clear that the UN charter and its interpretation necessarily need to correspond to these norms. Jus cogens is a dynamic, changeable concept, evidence of the legal and political status quo of the international community. International law itself changes constantly and rapidly. That is a reason more to acknowledge the primacy of jus cogens  especially when it comes to their applicability.

Legal effects of Jus Cogens

As discussed in the preceding paragraph, Jus Cogens sits right at the top of the ladder when it comes to the hierarchy of rules in the international normative order. Now, because of this the most conspicuous consequence of this higher rank is that the principle at issue cannot be derogated from by States through international treaties or local or special customs or even general customary rules not endowed with the same normative force.

The jus cogens nature of the prohibition implies that such prohibition has attained the level of a fundamental standard of the international community as a whole. Now, at the inter-state level, this principle serves to internationally de-legitimise any legislative, administrative or judicial act authorising any act going against this fundamentally recognized principle. This implies that if a state were to authorize measures (say ëtortureí), then such measures would not be accorded international legal recognition. And in fact, proceedings could be initiated by people having the requisite locus standi to declare the said measures as void ab initio. What is even more important is that perpetrators of such measures may nevertheless be held criminally responsible for torture, whether in a foreign State, or in their own State under a subsequent regime. As the International Military Tribunal at Nuremberg put it: individuals have international duties which transcend the national obligations of obedience imposed by the individual State. In other words, this principle directly limits the sovereignty of states to enter into contractual relations which might be detrimental to human rights recognized as jus cogens.

At the individual level, the effect is that every State becomes entitled to investigate, prosecute and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction. Other consequences appear to be that such measures which go against the fundamentally recognized principles may not be covered by the statute of limitations, and in fact must not be excluded from extradition under any political offence exemption.

To conclude in the words of the Inter-American Commission on Human Rights Norms of jus cogens derive their status from fundamental values held by the international community, as violations of such peremptory norms are considered to shock the conscience of humankind and therefore bind the international community as a whole, irrespective of protest, recognition or acquiescence.î Hence, the foregoing legal effects.

Human Rights norms as Jus Cogens v. State Sovereignty

States enter into treaties and agreements with other states on a voluntary basis. Only when they consent to the substance in the treaties, they become signatories to such treaties. Now, Jus Cogens aims right at the heart of this state consent as states are bound by this fundamental norm even if the states do not agree to it.

Accordingly, the discussion of whether or not Jus Cogens norms actually trump State Sovereignty is a lengthy one. In fact, scholars are fully divided on this one. One the one hand, we have scholars who argue that Jus Cogens is a norm that trumps all defences including State Sovereignty, whereas there are others who argue that Jus Cogens does not trump State Sovereignty. Given that no one answer has been reached in this debate, it is important to especially consider arguments of scholars who argue in favour of state sovereignty.

Given how jus cogens has been articulated in Articles 53 and 64 of VCLT, it seems difficult to believe that it wouldnít be able to trump every other rule of international law. Having said that, let us look at some of the arguments put forth by the supporters of this contention: (1) Jus Cogens rule prohibits a certain conduct. The same rule does not bar states from relying on state immunity before national courts. (2) Denial of state sovereignty could result in judicial chaos as States would potentially be subject to a very large number of claims. (3) Such trials could take place before the courts of states not inclined to decide fairly with regard to the defendant state. For example: Iran sits in judgment over the alleged war crimes committed by Israel or Pakistan sits in judgment over the alleged atrocities committed by India in the Jammu and Kashmir enforcing their notion of jus cogens.

To the first point, it could possibly be argued that every substantive jus cogens norm must be reasonably presumed to contain an enforceability element to it as well, so that the defence of ëstate sovereignty must be limited to a certain extent to pave the way for its implementation. Moreover, the existence of jus cogens norms without giving it the requisite teeth for its enforcement raises doubts which hit the core of the whole concept.

To the second and third points dealing with judicial chaos, it could be argued that the very basis of jus cogens norms is the acceptance and recognition by the international community of states as a whole of the said norm. Therefore, no state may unilaterally declare that a certain rule forms part of this fundamental principle and apply its own rules to ridicule the defendant stateís interest. Moreover, judgments based on such a subjective and false understanding of jus cogens would not be enforceable in any other state of the world. In addition, lifting of this veil of state sovereignty could possibly also act as an incentive / a deterrent for states to comply with the most fundamental principle of society, especially in order to avoid public shaming in national / international courts.

With respect to human rights norms, however, it is important to note that on June 25, 1993, representatives of 171 States adopted by consensus the Vienna Declaration and Programme of Action of the World Conference on Human Rights after presenting to the international community a common plan for the strengthening of human rights work around the world. Now, the Vienna Declaration and Program of Action marks the culmination of a long process of review and debate over the current status of human rights machinery in the world. It also marks the beginning of a renewed effort to strengthen and further implement the body of human rights instruments that have been painstakingly constructed on the foundation of the Universal Declaration of Human Rights since 1948.

Paragraphs 4 and 5 of this declaration are of utmost importance for the purposes of our discussion: It says:

The promotion and protection of all human rights and fundamental freedoms must be considered as a priority objective of the United Nations in accordance with its purposes and principles, in particular the purpose of international cooperation. In the framework of these purposes and principles, the promotion and protection of all human rights is a legitimate concern of the international community. The organs and specialized agencies related to human rights should therefore further enhance the coordination of their activities based on the consistent and objective application of international human rights instruments.

All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.

Now, even though the legal character of this declaration is ënon-bindingí, its importance in how it emphasizes the understanding of human rights on a global platform cannot be easily ignored. This declaration in fact can be seen as laying proper emphasis on developing effective international cooperation for the realisation of purposes set forth in the Universal Declaration of Human Rights, 1948. This shift can also be looked at suggesting a more ëagreeableí approach by the international community of states, especially and solely vis-vis human rights norms.

This change was also reflected in the Barcelona Traction Case (Belgium v. Spain), where the Belgian Government sought reparation for damage claimed to have been caused to Belgian nationals, shareholders in the Canadian Barcelona Traction Company, by the conduct of various organs of the Spanish State. One of the preliminary arguments of the Spanish Government was to challenge the capacity of the Belgian Government to bring the said suit to the International Court of Justice, which the judges declined. In this regard, it has been observed by Mr. Zenovi? in his research paper titled ìHuman rights enforcement via peremptory norms ñ a challenge to state sovereignty:

The change in international legal values was also reflected in the case law of the International Court of Justice even before the end of cold war, regarding locus standi of a state before the court in matters considering jus cogens the Barcelona traction case was the cornerstone of the recognition that jus cogens norms give rise to the legal interest of any state to start proceedings. Although a procedural aspect, it might have significant consequences regarding the different level of human rights record among states.

Judicial decisions: Jus Cogens v. State Sovereignty

International Judges also appear to be somewhat divided in their opinion. Though majority of the opinion favour state immunity, there are those minority of judges who feel the rule should be otherwise. Let us have a look at what these courts have held.

The European Court of Human Rights has not accepted the proposition that States are no longer entitled to immunity in cases regarding serious violations of international humanitarian law or human rights law. In 2001, in Al-Adsani v. United Kingdom, it concluded:

Notwithstanding the special character of the prohibition of torture in international law, the Court is unable to discern in the international instruments, judicial authorities or other materials before it any firm basis for concluding that, as a matter of international law, a State no longer enjoys immunity from civil suit in the courts of another State where acts of torture are alleged.

The following year, once again in another case, the European Court of Human Rights once again while upholding the state immunity argument, said:

The Court does not find it established, however, that there is yet acceptance in international law of the proposition that States are not entitled to immunity in respect of civil claims for damages brought against them in another State for crimes against humanity.

The International Court of Justice has also had the opportunity to extensively opine on this issue in Germany v. Italy. It said:

The Court concludes that, under customary international law as it presently stands, a State is not deprived of immunity by reason of the fact that it is accused of serious violations of international human rights law or the international law of armed conflict.

In the opinion of the Court no such conflict exists The two sets of rules address different matters. The rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another State. They do not bear upon the question whether or not the conduct in respect of which the proceedings are brought was lawful or unlawful For the same reason, recognizing the immunity of a foreign State in accordance with customary international law does not amount to recognizing as lawful a situation created by the breach of a jus cogens rule

Having talked of the judgement overall, it is also important to look at the strong dissenting opinion of Judge CanÁado Trindade. He notes:

One cannot embark on a wrongfully assumed and formalist lack of conflict between procedural and ìsubstantive rules, depriving jus cogens of its effects and legal consequences. The fact remains that a conflict does exist, and the primacy is of jus cogens, which resists to, and survives, such groundless attempt at its deconstruction. There can be no prerogative or privilege of State immunity in cases of  international crimes, such as massacres of the civilian population, and deportation of civilians and prisoners of war to subjection to slave labour: these are grave breaches of absolute prohibitions of jus cogens, for which there can be no immunities.

Jus cogens stands above the prerogative or privilege of State immunity, with all the consequences that ensue therefrom, thus avoiding denial of justice and impunity. On the basis of all the aforesaid, my firm position is that there is no State immunity for international crimes, for grave violations of human rights and of international humanitarian law. In my understanding, this is what the International Court of Justice should have decided in the present Judgment.

Conclusion

To conclude, it must be said that the debate between Jus Cogens norms and State Sovereignty still lingers, however, the position legally seems to be clear as of now and tilts against Jus Cogens.

Reference

1. The Effect of Jus Cogens Norms: Whoever opened the Pandora’s Box, Did You Ever Think About the Consequences by Ulf Linderfalk.
2. The Prohibition of Torture as an International Norm of Jus Cogens and its Implications for National and Customary Law by Erika De Wet.
3. Peremptory Norms or Jus Cogens in International Law by Faysal Mustafa.
4. The Creation of Jus Cogens- Making Sense of Ar.53 of the Vienna Convention by Ulf Linderfalk.