16 Identifying jus cogens norms in human rights law

Prof. Nitin Gomber

Introduction: Fiduciary Theory of Jus Cogens

After going through the earlier module, a few questions that come to mind are possibly: is there any particular list of human rights that is claimed to be part of jus cogens? To what extent the human rights which are agreed to be jus cogens, are protected by the international and domestic courts? These are the questions weíre going to answer in this chapter.

Before answering the foregoing questions, it is important to note that the exact content and scope of jus cogens has always been a debatable issue. Having said that, there is a consensus among international legal scholars that some human rights have in fact acquired the status of jus cogens. Now this debate over, which human right norm has acquired the status of jus cogens is partially due to the disagreement amongst scholars as to the justification of jus cogens. This latter debate has focused on three theories: natural law, public order and customary international law. To be frank, none of these theories truly live up to the arguments advanced by each of these scholars: (a) Natural law theories are centered on the identification of certain fixed natural law, whereas the number and nature of jus cogens norms are assumed to develop in accordance with the changing nature of the international community. (b) According to public order theories, jus cogens norms are essential to the integrity of international law as a legal system. This theory argues that international law recognizes certain imperative norms as hierarchically superior to ordinary laws in order to promote the interests of the international community as a whole. Having said that, this theory does not illuminate the normative basis of peremptory norms, nor does it clarify which particular international norms should be deemed peremptory. (c) A leading positivist theory of jus cogens conceives of peremptory norms as customary laws. This view goes right at the heart of jus cogens and continues to view it through the positivist prism of state consent. However, given that States rarely express an affirmative intent to transform ordinary customary norms into peremptory law, this argument again is questionable.

To summarize, none of the foregoing theories address the enduring paradox at the core of human rights discourse and therefore, jus cogens remains a concept in search of a viable theory! In fact, even the International Court of Justice has declined to clarify jus cogensís legal status or to specify any criteria for identifying peremptory norms. In this regard, therefore, it is best to rely on state practic and judicial decisions to figure which norms have attained the level of jus cogens. Having said that, commonly cited examples of norms that have attained the threshold of jus cogens include a prohibition on genocide, slavery, forced disappearances, torture or other cruel, inhuman or degrading treatment or punishment. Moreover, scholars suggest that a reliable starting point in identifying those international legal prescriptions that have achieved this status is the list of rights that international human rights treaties render non-derogable. Accordingly, let us now look at international case law that has contributed to the development of the material content of jus cogens.

Learning Outcomes

•  Students will be familiarised with Jus Cogens and Obligations Erga Omnes.

• 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.

Contributions of the Inter-American Court of Human Rights

The Inter-American Court of Human Rights (ìIACtHRî from here on) is an autonomous judicial institution set up by the Organization of American States (ìOASî from hereon), which serves to uphold and promote basic rights and freedoms in the Americas. OAS established the IACtHR to enforce and interpret the provisions of the American Convention on Human Rights. Let us now examine how IACtHR has contributed towards the concept of jus cogens.

In Brothers GÛmez Paquiyauri v. Peru, the IACtHR was dealing with a suit brought about by representatives of two brotherís who were detained by the Peruvian National Police, placed in the trunk of a police patrol car and then allegedly executed by firing firearm shots to the head, thorax and other parts of the body. Prior to being executed, these alleged offenders of terrorist acts were in fact thrown to the ground, kicked and a policeman stepped on their backs. While dealing with this matter of alleged torture by police officers, the IACtHR noted:

ìTorture is strictly prohibited by the International Law of Human Rights. The prohibition of torture is absolute and non-derogable, even in the most difficult circumstances, such as war, threat of war,fight against terrorism’ and any other delicts, state of siege or of emergency, commotion or internal conflict, suspension of constitutional guarantees, internal political instability or other emergencies or public calamities An international juridical system of absolute prohibition of all forms of torture, both physical and psychological, has been established, and it is today part of the sphere of international jus cogens.

Thereafter, in Caesar v. Trinidad and Tobago, the IACtHR took a step further and categorically held that in addition to the prohibition of torture, even the prohibition of ëcruel, inhumane and degrading treatmentí has entered into the domain of jus cogens. The court also noted that such a prohibition would have to be complied with independent of any codification or declaration, since all these practices constitute a violation of peremptory norms of international law.

In the Advisory Opinion on the Juridical Condition and Rights of Undocumented Migrants, the Government of Mexico being concerned with the incompatibility with the OAS human rights systems and of the interpretations, practices and enactment of laws by some states in the region, had called upon the IACtHR requesting an advisory opinion on the  deprivation of the enjoyment and exercise of certain labor rights [of migrant workers], and its compatibility with the obligation of the American States to ensure the principles of legal equality, non-discrimination and the equal and effective protection of the law embodied in international instruments for the protection of human rights. While delivering the opinion, the IACtHR held:

This Court considers that the principle of equality before the law, equal protection before the law and non-discrimination belongs to jus cogens, because the whole legal structure of national and international public order rests on it and it is a fundamental principle that permeates all laws. Nowadays, no legal act that is in conflict with this fundamental principle is acceptable, and discriminatory treatment of any person, owing to gender, race, color, language, religion or belief, political or other opinion, national, ethnic or social origin, nationality, age, economic situation, property, civil status, birth or any other status is unacceptable. This principle (equality and non-discrimination) forms part of the general international law. At the existing stage of the development of international law, the fundamental principle of equality and non-discrimination has entered the realm of jus cogens.

In La Cantuta v. Peru an application was filed for the alleged violation of human rights of a Professor, a few of his students and they’re next of kin on the grounds of the alleged kidnapping of the victims from a University located in Lima. It was alleged that this kidnapping ëoperationí was carried out by the Peruvian Army, after which some of these victims had in fact disappeared or had been summarily executed. Opining in this matter, the IACtHR noted:

The duty to investigate and eventually conduct trials and impose sanctions, becomes particularly compelling and important in view of the seriousness of the crimes committed and the nature of the rights wronged; all the more since the prohibition against the forced disappearance of people and the corresponding duty to investigate and punish those responsible has become jus cogens.

The acts involved in the instant case have violated peremptory norms of international law (jus cogens). Under Article 1(1) of the American Convention, the States have the duty to investigate human rights violations and to prosecute and punish those responsible. In view of the nature and seriousness of the events, all the more since the context of this case is one of systematic violation of human rights, the need to eradicate impunity reveals itself to the international community as a duty of cooperation among states for such purpose. Access to justice constitutes a peremptory norm of International Law and, as such, it gives rise to the Statesí erga omnes obligation to adopt all such measures as are necessary to prevent such violations from going unpunished, whether exercising their judicial power to apply their domestic law and International Law to judge and eventually punish those responsible for such events, or collaborating with other States aiming in that direction.

As has been clear from the foregoing discussion, jus cogens status has been accorded to the prohibition of torture; prohibition of cruel, inhuman or degrading treatment; the principle of equality before the law, equal protection before the law, and non-discrimination; the prohibition to commit crimes against humanity; access to justice; prohibition of the forced disappearance of persons and the corresponding obligation to investigate and punish those responsible.

Contributions of ICTY

The International Criminal Tribunal for the former Yugoslavia (ICTY) is a United Nations court of law dealing with war crimes that took place during the conflicts in the Balkans in the 1990ís. Since its establishment in 1993, it has irreversibly changed the landscape of international humanitarian law and provided victims an opportunity to voice the horrors they witnessed and experienced. In its precedent-setting decisions on genocide, war crimes and crimes against humanity, the Tribunal has shown that an individualís senior position can no longer protect them from prosecution. Let us now look at some of these cases.

In Prosecutor v. Anto Furundzija (December 10, 1998), the defendant accused was a citizen of Bosnia and Herzegovina who was responsible for serious violations of International Humanitarian Law committed in the territory of the former Yugoslavia since 1991. While holding the accused guilty of violations of customs of war, the ICTY held:

It should be noted that the prohibition of torture laid down in human rights treaties enshrines an absolute right, which can never be derogated from, not even in times of emergency Prohibition on torture is a peremptory norm or jus cogens. This prohibition is so extensive that States are even barred by international law from expelling, returning or extraditing a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture

Thereafter, in Prosecutor v. Goran Jelisic (December 14, 1999), the Court referred to the provisions relating to the prohibition of genocide as those falling under customary international law. Even though the court itself did not acknowledge such nature, it did refer to such recognition by the International Court of Justice. Furthermore, in Prosecutor v. Kupre{k} and others (January 14, 2000), the court held, ìmost norms of international humanitarian law, in particular those prohibiting war crimes, crimes against humanity and genocide, are also peremptory norms of international law or jus cogens. i.e. of a non-derogable and overriding character.

Contributions of International Court of Justice

The rigidity introduced by the inderogable character of jus cogens has caused a great deal of reluctance on the part of International Court of Justice (ICJ) to draw mechanical conclusions from the hierarchical superiority of peremptory norms over any other rule of international law. Therefore, the ICJ had kept quiet on the very existence of such a normative category of ëlawí for a very long time and has come of age lately.

In its 1996 Advisory Opinion on the Legality of Use or Threat of Use of Nuclear Weapons, the Court created a category of new norms which it called ëintransgressible principles of humanitarian lawí to avoid referring to jus cogens. The fact that the ICJ was never fond of jus cogens is further attested to by the Courtís alternative use of the notion of obligations erga omnes. While the two notions may be complementary, they remain distinct, and to consider them as synonyms risks undermining the legal distinctiveness of each category ñ for the erga omnes nature of an obligation indicates no clear superiority of that obligation over other obligations. A further distinction between the two concepts is discussed later in the module.

The ICJ also referred to certain general and well-recognized principles, among which are elementary considerations of humanityí. Just a year later, the Court gave one of its most famous advisory opinions, in which it stated that ëthe principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligationí. These lines and also the reasoning in the Barcelona Traction case display that the Court has, from the very beginning, deemed it necessary to highlight the existence of particularly important norms in international law, although it has been less than clear about their status or operation.

Given the foregoing hesitation, there are very few examples where the ICJ categorically decided the jus cogens nature of a particular norm, as seen above and in other modules. However, one recent example is that of Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), where the court held:

In the Courtís opinion, the prohibition of torture is part of the customary international law and it has become a peremptory norm  That prohibition is grounded in a widespread international practice and on the opinio juris of States. It appears in numerous international instruments of universal application (in particular the Universal Declaration of Human Rights of 1948; the 1949 Geneva Conventions for the protection of war victims; the International Covenant on Civil and Political Rights of 1966; General Assembly resolution 3452/30 of 9 December 1975 on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment), and it has been introduced into the domestic law of almost all States; finally, acts of torture are regularly denounced within national and international fora.

The relationship between jus cogens and erga omnes obligations

The close relationship between jus cogens and the notion of erga omnes obligations is a constant source of confusion. Jus cogens norms are particularly important norms that are distinguished by their non-derogability. A norm that conflicts with them is, as we have seen, null and void. Obligations erga omnes are obligations in the fulfillment of which every State has a legal interest. It is likely that all States have a legal interest in the observance of rules from which no derogation is permitted. In this sense, it is plausible to assume that all jus cogens norms constitute erga omnes obligations. But the equation does not work the other way around. From the fact that all States have an interest in the fulfillment of an obligation it does not necessarily follow that those norms are peremptory – that is to say, they do not necessarily render conflicting obligations null and void.

In the commentary to the Draft Articles, the ILC elaborated the relationship between jus cogens and obligations erga omnes as follows:

While peremptory norms of general international law focus on the scope and priority to be given to a certain number of fundamental obligations, the focus of obligations to the international community as a whole is essentially in the legal interest of all States in compliance – i.e., in terms of the present Articles, in being entitled to invoke the responsibility of any State in breach. Consistently with the difference in their focus, it is appropriate to reflect the consequences of the two concepts in two distinct ways. First, serious breaches of obligations arising under peremptory norms of general international law can attract additional consequences, not only for the responsible State but for all other States. Secondly, all States are entitled to invoke responsibility for breaches of obligations to the international community as a whole.

In the Barcelona Traction case, the ICJ stated: An essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-‡-vis another State in the field of diplomatic protection. By their very nature the former is the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.

Thus, the first criterion of an obligation rising to the level of erga omnes is, in the words of the ICJ, ìthe obligations of a state towards the international community as a whole. While the ICJ goes on to give examples of such obligations in Barcelona Traction, it does not define precisely what meaning it attaches to the phrase ìobligations of a state towards the international community as a whole. The relationship between jus cogens and obligations erga omnes was never clearly articulated by the PCIJ and the ICJ, nor did the jurisprudence of either court explicitly articulate how a given norm becomes jus cogens, or why and when it becomes erga omnes and what consequences derive from this. Obviously, a jus cogens norm rises to that level when the principle it embodies has been universally accepted, through consistent practice accompanied by the necessary opinio juris, by most states. Thus, the principle of territorial sovereignty has risen to the level of a ìperemptory normî because all states have consented to the right of states to exercise exclusive territorial jurisdiction.

Conclusion

Therefore, we discussed that certain principles like the prohibition on genocide, slavery, forced disappearances, torture or other cruel, inhuman or degrading treatment or punishment have come to possess the character of jus cogens through various decisions of the Inter-American Court of Human Rights and ICTY. However, ICJ had been reluctant in precisely defining the contents of jus cogens. One hopes that ICJ would soon counter an occasion to determine that what are the jus cogens.

Reference

1. Human Rights and the Magic of Jus Cogens by Andrea Bianchi.
2. Customs, Jus Cogens and Human Rights by John Tasioulas.
3. It’s a Bird, It’s a Plane, It’s a Jus Cogens by Anthony D’ Amato.
4. The Distinction between Jus Cogens and Obligations Erga Omnes by Paolo Picone.
5. Jus Cogens and Obligations Erga Omnes by Erika De Wet.