A critical analysis

A Critical Analysis Of The Scope And Application Of Jus Cogens

By Robi Vincent Sarara *
December 2011

* LLB (Hons), Dip (KSL), Advocate, LLM Candidate (International Criminal Justice, University of Kent), Chevening Scholar,  Worked as a Research Assistant in the Research, Drafting and Technical Support team of the Committee of  experts, Associate Advocate at Rachier & Amollo Company Advocates. This Essay was submitted to the University of Kent as part of requirement for LLM award on the 16th of January, 2012. The author acknowledges comment made by Dr. Emily Haslam.

Abstract

Abstract


A plethora of literature has been written on the topic of jus cogens as a legal concept and its significance in the development of international law. Despite much time, ink and paper having been devoted to this study, there is little consensus on the content and the scope of Jus Cogens. The preponderance of opinion support the existence of the concept but the debate revolves around the content therein and the practical application of this legal concept. This essay analyses the scope and practical application of this concept. For example how is the jus cogens norm derived, secondly, what is the nature, legitimacy  and utility of the jus cogens concept. The paper concludes that the practical application is faced with many challenges due to doctrinal incoherency . The principle seems to be thriving due to its uncertainty and ambiguity.

1. Introductory

1. Introductory

One of the most tenacious and beguiling concepts of international law is jus cogens.1 It has stood the test of time notwithstanding a vast array of criticism. This is one concept that lack of clarity has not deterred its far-reaching effect both at the national and international levels. The theory has stimulated a lively debate among scholars with the contest showing a nearly equal divide between those in favour of and those against the concept.2 Even with the controversy that it has and continues to elicit, the doctrine has and continues to contribute considerably in the development of international law and it can pass as an emblem for the unwritten constitution giving guidance to law making among states.3 In spite of the divergent views, its ambivalent and futurist nature has worked magic enabling it to operate as a double edged sword.4 It warrants saying that its existence since official codification has been unusually unremarkable and extremely controversial.5

I suppose Koskenniemi's words best fits the description of this concept. Drawing analogy from his  scholarly work 'from apology to utopia' one gets to conclude that jus cogens borrows much from international law which is not unambiguous in itself, it depends on how 'one sees it, how one uses it and what one makes out of it'.6Otherwise how do we explicate the strongly and equally diametrically opposed opinion on what its scope and application is? Just as he has concluded that international law is a shell to be filled up by arguments, the same applies mutatis mutandis to jus cogens as conceptualised by the Vienna Convention on the law of treaties (VCLTs).7

The concept has been described as an empty box8open to be filled by legal arguments reflecting Koskenniemi's assessment on the character of international law.9 Stephan has noted that jus cogens sanctions an exercise of judicial power that would breach the settled norm of international law while at the same time prohibiting sovereign countries from immunizing conduct that would contravene the jus cogens norm.10  This he compares to a shield or a sword depending on the position one finds himself one needs only to cry loud 'jus cogens' to his or her aid.11 Although the opinion of international lawyers is generally shifting, the preponderance of opinion supports a concurrence that jus cogens exists in certain number of rules from which states cannot derogate even by entering into a treaty.12

It is axiomatic therefore that the concept does exist, whether controversially or not and whether a hopeless chimera or a hopeful myth,13 it is here with us. Having laid the background, this paper takes a polemic move to respond to the most contentious and difficult questions, for example, what is the usefulness of a norm of jus cogens? Secondly, what is the nature of state practice required for a norm to be glorified into a peremptory status?14 Finally, how long does it require for a norm of jus cogens to crystallize 15 and how can an existing norm of that character be replaced by another norm? These are indeed very critical question to be answered through analysing the principles' practical application in the areas of universal jurisdiction and sovereign immunity.

In the end the paper hypothesizes that the application of the concept is 'organised chaos'' and although sui generis, most scholars confess that it has broken its confines as anticipated by its framers.16 This expanded interpretation and application of jus cogens has not been received well by many scholars. In conclusion the paper reiterates 'the mystery of jus cogens remains a mystery'17and without that mystery the splendour and awesome characterof jus cogens will vanquish.

2. Evolution and Development of the jus cogens concept.

2. Evolution and Development of the jus cogens concept.

The history of the evolution and subsequent development of the jus cogens concept has been well documented by many scholars.18 It is not the intention of this discourse and it cannot pretend to give a painstaking analysis of the same. Be it as it may, this part endeavours to capture the evolution and development in a nutshell. According to Cassese the clamour for a hierarchy of norms traces back to the 1960s as both the socialists and developing countries demanded protection from diverse interests.19 The consensus on the existence of a hierarchy of norms was overwhelming with the lack of an agreement on which such norms fell in the jus cogens character.20 Member states agreed on incorporation of the basic concept and setting up of a neutral arbiter body to decide on the disputed issues in the future.21

However, earlier on verdross had laid the foundation by declaring that certain norms could not be violated even by way of treaty.22 Verdross assertions had moral connotations as he stated that no juridical order can admit treaties between states which treaties are obviously in contradiction to the ethics of a certain community.23

Oppenheim on the other hand had stated that a number of 'universally recognised principles' existed and which had the effect of rendering any conflicting treaty void. The peremptory effect of such principles he notes was itself 'unanimously recognised customary rule of International Law.'24 There is overwhelming evidential backing for the idea that jus cogens has its basis in the natural law doctrine of classical international law or that it represents natural law theories germane to all legal systems.25 This has been contested by the positivists who even deny the existence of jus cogens and insist on the complete freedom of state to make laws by way of treaty.26 From then the contests between positivist and naturalist still goes on.

Initial judicial recognition of the concept of jus cogens traces to the early nineties with some judges affirming it while others dissenting strongly.27 It is noteworthy that the opposition of the principles dates back and did not start recently.28 The International Law Commission gave so much thought into the subject leading to the official codification of the concept in the Vienna Convention on the law of treaties in 1969.29  The article reads inter alia;-

'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'.30 (Emphasis in bold)

This codification opened up debate and since then the topic has never been put to rest. It is agreed that there is no acceptable definition of jus cogens and the above has been the subject of multiple interpretations. The legal nature of the said norms remain a subject of debate with all sort of speculation with some resulting to the municipal law analogy of the public order for answers,31 a theory that has been frowned to by many scholars.32 Secondly, to some jus cogens is synonymous to the international constitution an argument that cannot hold because of the structure of international law.

3. Scope And Application Of Jus Cogens

3. Scope And Application Of Jus Cogens

(a). Jus cogens as envisioned by the Vienna convention

The main text that would be helpful in depicting the content or rather scope and application of jus cogens would be the Vienna Convention on the law of treaties (both 1969 and 1986).33 However, the same is vague and does not in any way mention the words.34 According to the article some principles of general international law enjoy unique status and are so compelling so as to nullify or cause a modification of ordinary norms of treaty or custom in conflict with them.35 Article 53 does not mention any list of what the content of jus cogens is. Nonetheless this is immaterial since a list would have called for constant revision as and when new norms emerged or where existing norms were either replaced or overthrown by new norms. One other disturbing question is whether in the actual sense states would enter into a treaty allowing dealing in slaves or authorizing torture or use of force between themselves.

Going further no case study exists where a treaty has been challenged for violating the jus cogens norm. This in essence points out to the theoretical weaknesses underpinning the concept.36 From the foregoing it appears that the introduction of the article appears suspicious and a clear codification of some unforeseen moral values to guide states in their dealings. Scholars have raised several issues with the structuring of this article. First is that it concentrates on what the peremptory norm does and not what constitutes it.37 It is however submitted that creating a list for all jus cogens norms will be like drawing up a constitution with numerous exemptions. For example, although prohibition of use of force is a norm having a jus cogens character the same can only apply within a framework of various limitations which limitations in themselves have attained the jus cogens character.

Secondly, the norm can only evolve if 'accepted and recognised by the international community as a whole'38. Many have opined that it requires a majority of states to create the norm as opposed to the entire body of states.39 However it is not clear on how this is to be quantified in terms of length of practice and the number of states to be involved. The concept of equality of states remains conjectural especially in the emerging world of the US hegemony and the Eurocentric nature of international law.40 It suffices to stay that in practice it is unrealistic to even reconcile the cultural differences between the capitalistic western democracies and Islamic fundamentalists. Furthermore there is an additional requirement that the states accept and recognize separately that the norm in question is non-derogable.41  This is identical to opinio juris requirement of formation of custom. Although acceptance and recognition of such a norm may be inferred and not necessarily express, the requirement of how broad the acceptance ought to be remains a contentious topic.42 It appears that jus cogens derive either from general treaties or international custom but the same still remain a mystery.43 The complication being that determining opinio juris which is an essential element of evolution of custom remain controversial what about the double consent requirement of jus cogens? The is even made more complex as  jus cogens has a binding effect to all non-consenting and objecting states and it would mean that the acceptance must entail an overwhelming support if not all the states and not merely a simple majority.44

The conception of the peremptory norm in the convention is a visionary one.45 The norms contemplated are easily seen than mentioned, easily illustrated than defined and the international community has continuously accepted such norms prohibiting slavery, torture, apartheid and generally those dealing with international humanitarian law as being very fundamental to the international community.46 Most of the recognised rules have a foundation in morality and it is very difficult to dispute this.

Reading through the VCLT it is not contested that there is no clear understanding of which norms falls within the category of peremptory norms.  Further the criterion to guide the development of peremptory norms remains a riddle. The same is left to states to determine through practice. The contemplation is that the norms with shape themselves within the dictates of state meaning that  at one point a norm may be jus cogens and after a century the same norm will not qualify.

 (b). Application of Jus Cogens beyond the Convention on the Law of Treaties

The jus cogens concept has broken the confines as intended by the constitutive Convention.47 There is no documented case where the ICJ or any competent court has declared that an international treaty was void for being inconsistent with a peremptory norm of international law.48 Jus cogens has taken a rather new shift commanding an unusual effect on more than just conflicting treaties.49 The application of the concept has been witnessed both in domestic courts and international human rights tribunal as lawyers attempt to resolve disputes relating to violations of individual 'jus cogens rights'.50 Initially intended to regulate relationship between and among states, the concept now addresses the relationship between states and individuals and it is clearly evident that although concealing substantive emptiness its impact is commendable.51

The concept has been hijacked by human right activists to expand the international law of human rights. This has seen a shift to coining of peremptory norms concerning duty owed to individuals as opposed to states.52 Jus cogens concept imposes duties on governments and also creates rights in the international legal order regardless whether a state disapproves imposition of such rights. What is required is only constant and sufficient state practice. This concept has penetrated domestic courts and tribunal and cannot be contained any more. As it shall be discussed subsequently in this paper just cogens attempt to shape the international legal order by purporting to grant universal jurisdiction for international crimes and by denying sovereign immunity for heads of state for violating such crimes.

(c). State practice and judicial interpretations.

The Court mandated to adjudicate on the disputes concerning jus cogens is the International Court of Justice (ICJ).53 Reading through most judgements it will be noted that the court has entertained very few disputes involving the concept. The ICJ has been very conscious in its usage of the concept and is yet to give a solid determination on the existence and breach of jus cogens.54 The most recent is the case between Germany and Italy 55 and it presents yet another opportunity for the ICJ to determine the deep tension between sovereign immunity and the jus cogens doctrine.56 Critics also contend that the involvement of the court in such a process usurps the powers given to states to make laws in terms of customary international law by dint of the ICJ statute.57 This in essence amounts to vesting to the ICJ a judicial power of determining existence of such norms which will eventually have a binding effect to objecting states.58 This argument is rather weak as the ICJ does not declare the norms are 'jus cogens' from nowhere but assesses and draws conclusion from state practice.59 Admittedly drawing such conclusions can be very difficult because of the fluidity and diminishing role of custom as a source of international law60 and furthermore it is not usually a mathematical exercise.

A good example at hand is the case of Nicaragua vs. United States61 in which the ICJ made a determination that a norm had acquired jus cogens character. In this case Nicaragua contended that the United States by supporting the operations of a paramilitary rebel group had indeed violated the international law rule prohibiting the use of force between states. The court ruled in favour of Nicaragua even though the US withdrew from the proceedings after its argument challenging the ICJ's jurisdiction over the matter had been turned down.62 The ICJ made reference to the ILC's findings previously holding that prohibition of use of force is a good example of a jus cogens norm. Besides this they had nothing to fall back to and furthermore the ILC had not shown the basis for such a conclusion. The court did not lay the procedure for determination of subsequent norms63 making one to believe that jus cogens is just left to operate on trial and error.

In Democratic republic of Congo (DRC) v, Belgium,64  the situation was different since it was a case in which the alleged jus cogens norms is relied upon to seek a result different from a holding of invalidity of a treaty. While the DRC contended that a sitting head of state enjoyed complete immunity from the judicial process of other states, Belgium on the other hand averred that the crimes committed consisted grave human rights violation which had attained the jus cogens status. Such arguments advanced by Belgium in essence breached the sovereign immunity of DRC. The court rejected Belgium's arguments stating that there exist no exceptions to the rule according immunity from criminal jurisdiction.65

From the foregoing it is clear that the scope and application of jus cogens remains controversial.  The doctrine is being applied differently from its initial intended purpose. Most reliance of jus cogens both in the domestic and international courts has nothing to do with challenging a treaty being inconsistent with a jus cogens norm but advancement of a particular course using jus cogens.66 Scholars remain deeply divided on the sources of these norms. Mostly you will find some saying jus cogens emanates from international custom, others saying expressly from treaties while some saying natural law and others a combination of either two or three of the ones mentioned.67 It is submitted that although jus cogens was initially intended to be a deterrent mechanism it has turned out to be used as a sword to advance other claims an argument that lost ground in the Al-Adasani case 68.

4. Jus Cogens through the Lens of Universal Jurisdiction

4. Jus Cogens through the Lens of Universal Jurisdiction

The one area where jus cogens has attempted to extend its reach beyond the scope of the law of treaties is with regard to universal jurisdiction.  The doctrine of universal jurisdiction has elicited a lot of controversy in this last decade.69 This controversy showed itself in a plethora of political suits being lodged in different countries as victims sought redress against international crimes committed by former government officials and heads of states.70  The doctrine relies on the principle that some crimes are so atrocious that they should not go with impunity and that one cannot invoke sovereign immunity as a defence against such crimes.71 Proponents of this doctrine posit that these crimes attract universal jurisdiction because they offend the humankind and any state in the world is at liberty to prosecute. 72  This is regardless of the location of the offence or the nationalities of the offenders or the victims.73 Whether this doctrine has attained the level of jus cogens is one question and when is it did so is yet another.

Those in support of universal jurisdiction predicate their argument on the need to end impunity for heinous crimes.74 Those against it contend that it disrupts international relation and opens a door to abuse inviting courts to entertain frivolous suits founded on malice and bad faith.75  Strictly speaking if universal jurisdiction for international crimes is jus cogens then it means it is a norm that has trumped over and or modified the state sovereignty and equality of states principle. Proponents contend that once crimes of a jus cogens nature are committed a country cannot plead sovereignty so as to deny any other country from exercising jurisdiction over persons who commit such crimes.76  While this may be strongly argued to have attained jus cogens in so far as it applies only before international tribunals the same cannot apply before other domestic court. Universal jurisdiction has been common in crimes such as piracy77 or politically related crimes where the host country is unlikely or unwilling to prosecute.78

There is no evidence that this practice has attained jus cogens character, it is the crimes that are of a jus cogens character and not the actual practice of states to try these crimes. It is one thing to show that the crimes are of jus cogens nature and it is a different thing to prove that the practice of them attracting universal jurisdiction has attained customary international law.79 Critics have differed sharply over the practice and the persistent objection is only indicative that states are not yet willing to accept the practice.80 State practice justifying universal jurisdiction by domestic courts has received objection on an almost equal footing as it has been accepted.81 In fact in actual practice there seems to be very few cases in which domestic courts have expressly based their jurisdiction on the idea of jus cogens.82 It has been argued that universal jurisdiction is unnecessary as it is detrimental to the predictability and coherence of domestic court decisions.83

In terms of state practice and the ruling of the ICJ, the Arrest Warrant case presented an avenue for the judges to set the law pertaining to universal jurisdiction clear but as usual the ICJ played safe on the matter. Probably the only fairly uncontroversial successful application of universal jurisdiction was in the case of Israel v. Eichmann84 involving the trial of Nazi war criminal Adolf Eichmann. Even in this case there was still some connection of the passive personality principle as the accused was being tried for crimes against the Jewish people. The same therefore cannot be relied as giving a good precedent allowing universal jurisdiction. The subsequent failure to try Ariel Sharon Prime Minister of Israel and the amendment of the Belgium controversial legislation allowing universal jurisdiction shows a diminishing value for universal jurisdiction. Moreover the emergence of international tribunals with jurisdiction to try crimes of a jus cogens character diminish the practice of universal jurisdiction more so with the fact that even the ICC recognises the complementarity principle. Domestic exercise of universal jurisdiction therefore cannot be said to have attained jus cogens character but the manner in which the doctrine has tried shows that jus cogens is yet to shake the international law by trying many other things. This is a clear indication of the indeterminate nature of jus cogens.

5. Jus Cogens and sovereign immunity

5. Jus Cogens and sovereign immunity

Jus cogens has made attempt to deny sovereign immunity to heads of states and states immunity where offences committed are alleged to be of a jus cogens character. The question of sovereign immunity was well conversed in the Arrest warrant case.85 This case vividly illustrated the shift of jus cogens from protecting states to protecting individuals.86 The case brought into conflict two international law principles, the head of state immunity and the need to ensure that human rights violations that have attained jus cogens status do not go unpunished thereby conflicting with state sovereignty principle.87  The court held in favour of upholding immunity for sitting head of state stating that as far as it was concerned state practice had shown no preference for waiver of immunity for a sitting head of state.88

In march, 2009 the International criminal Court (ICC) issued an arrest warrant against the now sitting president of Sudan, Omar Al Bashir in disregard of the well-established principle of sovereign immunity.89 It is arguable that while the arrest warrant case was between two countries, one purporting to exercising jurisdiction over another state, the Sudan's case involves a well- established international tribunal. It is further submitted that customary international law has developed denying immunity for violation of jus cogens crimes even for a sitting head of state and the same cannot succeed as a defence in an international criminal tribunal.90 The trial of the former Yugoslavia Slobodan Milosevic and the subsequent trial of Charles Taylor, the former Liberian a sitting president as at that time provide good examples of consistent state practice.91

However, while immunity in international tribunal cannot stand the same has been extended by analogy to National law by applying the jus cogens argument.92  The High Court of Kenya on the 20th of November, 2011 issued an arrest warrant against Al Bashir a sitting president despite there being in force a treaty recognising Al Bashir's immunity.93 The question that remains unanswered is whether Al Bashir enjoys immunity from judicial mechanisms of domestic courts of non - state and state parties to the Rome statute. It has been argued in some quarters that the referral of a matter by the Security Council to the ICC similar to the Sudan situation acts to remove any claims for immunity even by non-party states in any forum.94 The impending clash between A. 98 (1) and A. 27 (2) of the Rome Statutes has seen the international community favour the latter therefore denying heads of states immunity before an international tribunal. However the same remains debatable as regards immunity before domestic courts.

Several theoretical defects remain glaring in the whole concept of international law and the core being the assertion that a Security Council Resolution can defeat the making of law by states in form of customary international law. The understanding seems to be that the Security Council is so powerful to render the provisions of the Vienna Convention on Diplomatic immunity void.  Also the Security Council resolution seems to defeat A. 98 (1) of the Rome statute. Furthermore it is an absurdity for the Security Council to impose obligations beyond those obtaining in the Rome Statute. According to many scholars violation of crimes of a jus cogens character leads to the stripping of any sovereign immunity of the defendant state95. Where the allegations are so grave for example genocide, war crimes and serious human rights violation sovereign immunity cannot be used as a bar to prosecution.96 While this argument would be true, where it is before an international tribunal, the same should be distinguished where one is raising such a defence before a domestic court. Apart from immunity for heads of state there have also emerged suits where individuals have sued different states in their domestic courts for violation of jus cogens crimes.A good illustration in terms of case law can be drawn from the 2004 case of Ferrini v. The Federal Republic of Germany,97 Mr. Ferrini, an Italian national, sought reparation against the Federal Republic of Germany, in his claim he alleged that he had been forcefully deported from Italy and subsequently subjected to forced labor during World War II. The Court, taking into account that the prohibition of forced labor constitutes a peremptory norm of international law, held that such norm trumped the “ordinary” customary international law rule of State immunity and that, therefore, it had jurisdiction to hear Mr. Ferrini's claim.  This holding was further given judicial backing when the Greek Supreme Court held in Perfecture of Voiotia v. The federal Republic of Germany98 that a state which violates a peremptory norm of international law must be considered to have waived its right to rely on sovereign immunity as a defence for such violations.99 While these two cases may appear to have set  ground for one  to argue that jus cogens crimes attract a waiver for sovereign immunity, subsequent countries have held in the contrary100  leading the ILC to acknowledge in 1999 that the practice is not consistent enough for jus cogens to trump over the well-established principle of state immunity. 
The Ferrini case led Germany to seek redress from the ICJ and the case between Germany and Italy101 remainssub judice at the ICJ. The ICJ among others will be required to determine whether custom has evolved so as to recognize an exception to immunity in cases involving grave violations of jus cogens crime and whether such exception has crystallized into a jus cogens norm. One may also wonder if at the crime the crimes were committed then had attained jus cogens character and whether jus cogens applies retrospectively. The ICJ has the opportunity to contribute and even unravel the mystery behind jus cogens. With the criticism102 the Ferrini case has so far received we can only wait in anticipation. The determination by the ICJ will also have implications among others on the United State Foreign Sovereign Immunities Act.103

6. Conclusion

6. Conclusion

Nothing seems to be uncontroversial at every mention of jus cogens. Its very existence in the VCLT remains a subject of debate by scholars. Its practical usefulness on the other hand has been burdened by lack of a clear definition, lack of a procedure for its determination and doctrinal weaknesses. The ambiguous nature of jus cogens remains the only positive feature providing an avenue for scholars to baptize any ordinary norm into the category of jus cogens. This paper did not examine the effect of jus cogens effect on state responsibility, humanitarian intervention without consent of the affected state and other controversial areas where the norm has been applicable.

Even though scholars agree that there exists in the international community a set of norms the violation of which render all treaties void, such norms are not easily identified and in the absence of state practice everything has been left to speculation. With the ICJ taking a peripheral role, scholars have taken centre stage with the hot topic to display their intellectual prowess. Fundamental questions raised remains unanswered for example what is the utility of a norm of Jus cogens, how does the jus cogens norm arise and once it has arisen how  the same can be modified.104 None of the scholars dare to give unchallenged answers to these questions and we await the ICJ in the case before it to clarify the pertinent issues.

It is clear that the concept lacks a proper theoretical foundation and it appears to be wavering trying attempts here and there and the absurdity is that it seems to be making commendable progress. The paper has analysed its attempt to assert universal jurisdiction over jus cogens violations and secondly its ability to deny sovereign immunity for alleged violations of crimes of jus cogens nature. Whether these practices have attained peremptory status remains controversial and depicts the impending problems of the practical application of the concept. We can only fall to arguments by scholars who have finally admitted that its existence is only visionary in the international legal order.105

Nevertheless jus cogens remains a symbol of fundamental values in the society. This appears in the way it has curved certain crimes as jus cogens and violation of such crimes brings a whole different dimension in the international arena.  Its vision is greater and it cannot anymore be contained in the VCLTs. It would certainly cause upheavals and destabilize most areas in the international realm. With all the glaring weaknesses attributed to it by scholars if weighed against what jus cogens has achieved or yet to achieve it remains an enigma in international law.

References

References

See, D'amato A, 'It's a Bird, It's a Plane, its Jus Cogens' (1990) 6 Conn. J. Int'l L. 1. He notes that although critics have said jus cogens lacks substance, its impacts is great. He furthers refers to it as the best norm capable of winning an Oscar award. (In the same article he notes that it is merely an insubstantial image of a norm, lacking flesh and blood.) Jus Cogens literally means the 'compelling law' and in this discourse it shall be used interchangeably with the word 'peremptory norm'

  1. For Criticism see e.g. D'amato, Ibid note 1, (it's a vague concept), Weisburd AM, 'Emptiness of the Concept of Jus Cogens, as Illustrated by the War in Bosnia-Herzegovina, (1995) 17 Mich. J. Int'l L. 1 (the concept is empty). See also Robert P. Barnidge, J, Questioning the Legitimacy of Jus Cogens in the Global Legal Order, (2008)38 Isr. Y.B. on Hum. Rights. 199, 203–10 (question its legitimacy). See also Linderfalk U, 'The Effect of Jus Cogens Norms: Whoever Opened Pandora's Box, Did You Ever Think about the Consequences?' (2007) 18(5) EJIL, 853. He equates the concept to a Pandora's box,  For support of the concept see, Biachi A, Human rights and the magic of Jus Cogens, EJIL(2008) Vol 19 No. 3 (says it works  magic). See Alfred Vedross, 'Jus Dispositivum and Jus cogens in International law', (1966) 60 AJIL 55. Others in support include Hannikainen, Peremptory Norms (Jus Cogens) in international law (Helsinki: Lakimiesliton Kustannus,(1988;). Prosper Weil, 'Towards relative normativity in International law?' (1983) 77 AJIL, 413. See Meron T, on a Hierarchy of International Human Rights. (1986) 80 AJIL, 1. Bluntschli J.C, Le Droit International Codifié (1874), 238-240; P. Fauchille, Traité de Droit International Public, Vol. I, 1ère partie (1922), 22.
  2. See for example: Christenson GA, 'Jus Cogens: Guarding Interests Fundamental to International Society' (1987) 28 Va. J. Int'l L. 586, he notes that despite its ambiguity it has penetrated the consciousness of international law discourse. See also Biachi A, Human rights and the magic of Jus Cogens, European Journal of International law (2008) Vol 19 No. 3, he notes that although critics opine that jus cogens is like an empty box, human rights are contained therein.
  3. D'amato, supra, note 1, at 1. This however has led to criticism that the concept has been interpreted beyond its original intention.
  4. Petsche M, 'Jus Cogens as a Vision of the International Legal Order' (2010) 29 Penn St. Int'l L. Rev. 233.
  5. Koskenniemi's M, from apology to utopia: the structure of international legal argument (Cambridge University Press 2005). 615-616, the same ambiguity surrounding international law replicates itself in the jus cogens concept.
  6. Ibid at 571 - 572, See Vienna Convention on the Law of treaties A. 53 lays the foundation of the principle though it does not explicitly mention the words 'jus cogens'. One could also argue for the indeterminate nature of jus cogens.
  7. Abi-Saab G, 'The Third World and the Future of the International Legal Order', 29 Revue Egyptienne de Droit International (1973) 27, at 53.
  8. Koskiennemi, Supra, note 6, 590, 591, he uses the words the 'indeterminate nature of international law'; the paper borrows this argument into jus cogens. Jus cogens is equally an indeterminate concept.
  9. Stephan III PB, 'The Political economy of Jus Cogens', University of Virginia School of Law, Public Law and Legal theory research paper series No. 2011 – 14, March 2011, also at Law and Economics; www.ssrn.co/link/U-Virginia - LEC.html at 1
  10. Ibid, he draws the sword versus shield analogy and i do not agree with the sword analysis as the concept was mainly intended to act as a shield. See also D'amato supra, note 2 at 1-2, according to him there appears to be no limit to the promotion of norms into supermoms.
  11. See e.g. Criddle E and Fox-Decent E, 'A fiduciary theory of jus cogens' (2008) Yale Journal of International Law, Vol.34, 2009. At the minimum Jus cogens exist in human rights prohibiting genocide, apartheid, slavery, torture, war crimes and crimes against humanity.
  12. Christenson, Supra, note 3 at 58, he notes the paradox.
  13. See, Minagawa T, 'Essentiality and reality of international jus cogens' (1984) 12 Hitotsubahi Journal of Law and Politics 1, 16, -28, see also  D'amato, Supra Note 1. He raises three basic questions (1). What exactly is the jus cogens norm. (2). How is it applied (3). Can it vanquish customary law?
  14. Linderfalk, Supra, note 2 at 861-862, see also Cassese, 'Terrorism is also disrupting some crucial legal categories of international law' (2001) 12 EJIL 997, he equates the events following the September 11 attack and the US retaliation as an instant custom.
  15. Supra see scholars such as,  D'amato, Linderfalk, see also Janis, 'The nature of jus cogens' (1987) 3 Conn. J. Int'l L. 359
  16. Sinclair I, The Vienna Convention on the Law of treaties (2ed 1984) at 224
  17. See generally Hannikainen, Peremptory norm, in International Law: Historical development, criteria, present status 14(1988). For a detailed analysis see, Schwelb E, 'Some aspects of International jus cogens as formulated by the International Law Commission' (1967) 61 Am. J. Int'l L 946.  He notes at 949 that the codification of the concept originated from lauterpacht's first report on the Law of Treaties of 1953. Other scholars include Hyde, Hall, McNair, Vattel and Grotius. See also Cassese, Supra, note 19, 199 – 208.
  18. Cassese A, International Law (Oxford University Press 2005) at 199, the interests he notes though diverse they overlapped. To developing countries it was to fight colonialism, imperialism, slavery and principles violating the principle of sovereign equality of states. To the socialist it was a means of putting on paper the rules of the game.
  19. The US, Britain and France opposed the initial language although Britain later joined the treaty. The United States argued that the ILC had watered down the article and its proposed amendments were rejected. See for further details United Nations Conference on the law of Treaties (2nd session) official records, A/Conf.39/11Add.1, at 107. The ICJ is given powers to decide on jus cogens disputes A. 66 of the Vienna Convention on the Law of Treaties.
  20. The contribution of the ICJ in the matter however has been limited as it shall be depicted later in this discourse.
  21. Vedross, Forbidden treaties in International Law, 31 Am. J. INT'L L (1937) 571-572
  22. Ibid at 572
  23. Oppenheim L, International Law (1905) London Longman at 528
  24. See, Charney, Universal International Law, (1993) AJIL 541, see also Grotius where he stated that natural law is so unshakeable and cannot be changed even by God. Also the fact that most rule of a jus cogens nature are attributed to human rights.
  25. Criddle and Fox, Supra, note 12 at 9. Arguments include the one to the effect that states cannot be bound by norms they have not consented to as jus cogens norms would purport to do.
  26. See for example Pablo Najera Case (1928) 5 R.I.A.A 466, 474 in the French Mexican Claims Commission. See also judge Quintana in the case concerning the application of the Convention of 1902, Governing the Guardianship of Infants (1958) ICJ. Rep. 55, 106-107
  27. For a detailed opposition prior to codification see George Schwarzenegger, International jus cogens? (1965) 43 Tex. L. Rev. 455
  28. 1155 N.N.T.S. 331; reproduced in (1969) 8 I.L.M 697
  29. Vienna Convention on the Law of Treaties Article .53, Vienna, May 23, 1969, (entered into force Jan. 27, 1980, the same was replicated in the 1986 treaty). See also Article. 64 of the Convention which will be discussed alongside Article 53 it is to the effect 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'
  30. Christenson supra note 3 at 598-599
  31. See for example, Magallona MM, The Concept of Jus Cogens in the Vienna Convention on the Law of Treaties (1976) Philippines Law Journal at 523, The international law set up differs greatly as it  lacks a legislature and an executive, states only consent to be bound by laws as opposed to the municipal system. This analogy is misplaced.
  32. ibid
  33. Janis supra, note 16 at 360 making an assumption that 'peremptory norm' and 'jus cogens' are equivalent
  34. Christenson, Supra, note 3 at 586, See generally early writings equating jus cogens to general norms of imperative character, often referred to as irreducible minimums in any legal system, fundamental norms in 'public policy' and good morals. The convention therefore contemplated certain values which are indelible to govern the international community the same being developed consensually through state practice and precedent from international courts. Cassese supra at 205
  35. See Petsche,  Supra, note 5 at 8
  36. See Jimenez E. International Law in the Past Third of a Century' 159 HR (1978 -1) 64
  37. Supra, note 28, VCLT, A. 53, See Paulus AL, 'Jus Cogens in a time of hegemony and fragmentation' (2005) Nordic J. Int'l L. 324, he notes that representation of states appear fictitious and fulfilling this requirement is unrealistic.
  38. SeeStephan, Supra  note  9 at 21
  39. Paulus supra note 38  at 324 he questions whether jus cogens can be made without the consent of the United States
  40. Often referred to as the 'double consent' requirement
  41. Nieto-Navia R and others, 'International Peremptory Norms (Jus Cogens) and International Humanitarian Law' (2003) Man's Inhumanity to Man, Essays in Honour of Judge Antonio Cassese at 10
  42. See for example McNair, The Law of Treaties (1961) 214 - 215
  43. Byers M, 'Conceptualising the relationship between jus cogens and erga omnes rules ' (1997) 66  Nordic Journal of International Law,  225-228, Cassese supra at 204 he notes the absurdity that only state parties to the VCLT or parties to a bilateral or multilateral treaty they intend declared for contravening jus cogens can rely on A. 53 and 54 of the VCLT. This is a paradox since once the rule is declared it will still bind all states.
  44. See generally Petsche, supra note 5, at 32 he concludes that to understand jus cogens it must be seen as it envisions the international legal order, he notes that it is not a functioning rule of international law stictu sensu.
  45. Hannikainen, Supra,  note 2, 44-447, See also, Brownlie I, Basic Documents in International Law (OUP 2002) 513
  46. Petsche, supra note 5 at 14
  47. Schwelb, Supra, note 18 at 949 -950, See also Cassese, supra, at 202. Neither the ICJ nor any other international tribunal has held that a particular treaty is inconsistent with a peremptory norm.
  48. Byers Supra note 43 at 215
  49. See Rubin AP, 'Actio Popularis, Jus Cogens and Offenses Erga Omnes' (2000) 35 New Eng. L. Rev. 266.
  50. Christenson Supra at 590
  51. Stephan Supra note 10 at 25
  52. Article 66 (a) of the Vienna Convention on the Law of Treaties, state inter alia 'any one of the parties to a dispute concerning the application or the interpretation of article 53 or 64 may, 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.'
  53. Cassesse supra at 209, the ICJ has been accused of using elusive language. See also Yarwood L.  'Jus cogens: useful tool or passing fancy, A modest attempt at definition', (2006)38 B.L.J at 24
  54. Available at http://www.icj-cij.org/docket/files/143/14923.pdf
  55. See generally, Bettauer RJ, 'Germany Sues Italy at the International Court of Justice on Foreign Sovereign Immunity–Legal Underpinnings and Implications for US Law' (2010) also available athttp://dspace.cigilibrary.org/jspui/bitstream/123456789/27022/1/Germany%20sues%20Italy.pdf? The case
    originates from a suit brought in the court of Italy by Ferrini where he sues Germany for deportation and forced labour during the second world war. The Italian court held that immunity is no defence since the alleged crimes are of a jus cogens nature.
  56. Article 38 of the ICJ statute on the source of laws, However Ford contends that the court has competence and is capable of handling disputes involving jus cogens, see Ford CA, 'Adjudicating Jus Cogens' (1994) 13 Wis. Int'l L. J 149
  57. Petsche, Supra, note 5 at 10
  58. See e.g. the Western Sahara, advisory opinion, 1975 I.C.J. 12 (Oct. 16) – In favour of self-determination, See also in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S.), 1986 I.C.J. 14 ( Nov.) where the court stated that non-use of force had crystallized into a norm of customary international law. See also in The Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), advisory opinion, 1971 I.C.J. 31, self-determination and territorial independence of Namibia. 57 (June 12).
  59. Dunbar, The myth of Customary International Law, (1983) AUST. Y.B. INT'L L. J at 1
  60. Supra note 58, the jurisdiction of the ICJ is subject to the consent of state parties.
  61. See the entire Judgement at http://www.icj-cij.org/docket/ delivered on the 27 June 1986
  62. D'amato supra, note 1 at 3
  63.  ( 2002) ICJ 3
  64. Ibid see ruling at www.icj.org
  65. Cassese Supra, at 202, he notes that no state practice proper has developed.
  66. Ford CA, 'Adjudicating Jus Cogens' (1994) 13 Wis. Int'l L. J 149
  67. Al-Adsani v. United Kingdom, 21 November 2001, ECHR, no. 35763/97, Reports of Judgments and Decisions 2001-XI,pp. 101-103, paras. 61-66. See also the Joint Dissenting Opinion at 112. Generally in a deeply divided decision the court was of the opinion that jus cogens cannot be substituted for a rule of international law to invalidate immunity and thereby providing for liability for both criminal and civil liability for torture
  68. Becker SW, 'Universal Jurisdiction' (2008) 79 (11) Revue Internationale de droit pénal 159, controversy stemmed in the 1990s. See Bassiouni, The History of universal jurisdiction and its place in international law in Macedo S,Universal jurisdiction: national courts and the prosecution of serious crimes under international law (University of Pennsylvania Press, 2006).  39 - 63
  69. See for example, Attorney-General v. Adolf Eichmann, Supreme Court of Israel, 29 May 1962, 36 ILR 5, see also Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium)ICJ14 February 2002 ((Reports 2000, p. 235) available  online http;//www.icj. other suits included suit against former President HW. Bush and then- Chairman of the joint Chief of Staff Colin Powel for acts in the first Gulf War. A criminal case against former Israeli Prime Minister Ariel Sharon (Under the Belgium Universal jurisdiction Statute)
  70. Ibid, see rulings in Arrest warrant case, the Princeton principles, For example in 2002 Germany enacted the codeof Crimes Against International Law (CCAIL), codifying the principle of universal jurisdiction into domestic law.  The CCAIL facilitates the prosecution of war crimes, crimes against humanity and genocide, regardless of whether those crimes have a connection to Germany. (General understanding that certain crimes attract universal jurisdiction and cannot go unpunished). See Abi-Saab G, The proper Role of Universal Jurisdiction, (2003) 1 J. Int'l Crim. Just. 599
  71. See e.g. Restatement (3rd) of The Foreign Relations Law of the United States §402 and 404 and comments thereto. Torture s not included. Crimes include genocide, crimes against humanity and war crimes
  72. Slaughter, Defining the Limits: Universal Jurisdiction and National Courts, UNIVERSAL JURIDICTION, (Stephen Macedo 2004) 168
  73. See, e.g., Amnesty International, Ending Impunity: Developing and Implementing a Global Action Plan Using Universal Jurisdiction (2009), available at http://www.amnesty.org/en/library/info/IOR53/005/2009/en : Kenneth Roth, The Case for Universal Jurisdiction, 80 Foreign Affair. 150 (2001), see Marcedo S and Davis M, 'Universal Jurisdiction, National Courts and the Prosecution of Serious Crimes under International Law' (Stephen Macedo ed. 2003).
  74. See, e.g., John Bolton, Democracy Under Arrest, The Wall Street Journal, Dec. 15, 2009; Jack Goldsmith & Stephen D. Krasner, The limits of idealism, 132 DAEDALUS 47 (2003); Eugene Kontorovich, The Inefficiency of Universal Jurisdiction, 2008 U. ILL. L. Rev. 389; Henry Kissinger, The Pitfalls of Universal Jurisdiction: Risking Judicial Tyranny,80(2001 FOREIGN AFF. 86); Jack Snyder and Leslie Vinjamuri, Trial and Errors, 28 INTERNATIONAL SECURITY 5 (2004).
  75. See Brown BS, The Evolving Concept of Universal Jurisdiction, (2001-2002) 35 NEW ENG. L.REV at 383, see also Morris H, Universal jurisdiction in a divided world: conference remarks, (2001) 35 New Eng. L. Rev at 337, 347
  76. Bassiouni, MC, “The History of Universal Jurisdiction and Its Place in International Law” In Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes under International Law, ed. Stephen Macedo. University of Pennsylvania Press
  77. Even with the ICC the complementarity principle still applies but jurisdiction is ceded only where the affected country is unwilling to try then the ICC will move in. See Article 17 of the Rome Statute.
  78. Petsche, Supra note 5 at 15
  79. See generally  Bettauer, Supra Note 55
  80. In the formation of custom the state practice must be both extensive and uniform as was held in the North Sea Continental Shelf case. This practice lacks consistency and uniformity.
  81. Petsche Supra note 5 in fact he argues thatthere exists other modes of determining jurisdiction e.g  passive personality and others
  82. Ibid at 15,16
  83. Crim A 336/61 Israel v. Eichmann [1962] IsrSC 16 2033, reprinted in 36 I.L.R. 277.
  84. Supra note 57 see previous discussions
  85. Stephan Supra, note 9at 27
  86. ibid
  87. This situation as changed and immunity cannot bar prosecution before an international tribunal for violation of jus cogens crimes. See e.g. in Prosecutor v Anto  Furundzija Case No IT-95-I-T para 140 (10 Dec 1998). 
  88. Prosecutor v Omar Al Bashir (Decision on the Prosecutor's Application for a Warrant of Arrest against Omar Hassan Ahmed Al Bashir) Case No ICC-02/05-01/09-3 (4 March 2009). This was pursuant to a referral through a Security Council resolution SC Res 1593 (2005) of 31 March 2005, UN Doc S/RES/1593 (2005).
  89. See for example Gaeta P, 'Does President Al Bashir Enjoy Immunity from Arrest?' (2009) 7(2) Journal of  International Criminal Justice 315. This is buttressed by A. 27 of the Rome Statute although Sudan is not a party to the same the ICC still has jurisdiction.
  90. Ibid
  91. Departing from the arrest warrant ruling see for example
  92. See the case International Commission of Jurists, (ICJ) Kenya vs. AG and another, Mis. Application 658 of 2010, available at www.kenyalaw.org. ruling issued by Judge N.R.O Ombija, declaring that AL Bashir enjoyed no immunity and should be arrested if he set his foot in Kenya. 
  93. See generally, Akande D, 'The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir's Immunities' (2009) 7(2) Journal of International Criminal Justice 333
  94. Levy, As Between Princz and King: Reassessing the Law of Foreign Sovereign Immunity as Applied to Jus CogensViolators, 86 GEO. L.J. 2703 (1997-1998, see also , McGregor, State Immunity and Jus Cogens, (2006) 55 INT'L & COMP. L.Q. 437, see generally  Xiaodong Yang, Jus Cogens and State Immunity, (2006) 3 N.Z. Y.B. INT'L L. 131
  95. Petsche, Supra at 17
  96. 128 I.L.R. 658 (2006).
  97. Case No. 11/2000. Areios Pagos (Hellenic Supreme Court), May 4, 2000
  98. The Greece court however found that immunity existed barring execution of assets. Subsequent cases were also rejected.
  99. See for example cases like Princz v. F.R.G., 26 F.3d 1166 (D.C. Cir. 1994), cert. denied, 115 S. Ct. 923 (1995) in the US, Bouzari v. Iran (Islamic Republic) Ont CA (2004).in Canada and the famous Al-Adsani v. Government of Kuwait, 107 ILR 536 (1996). In the UK
  100. Supra, see case above
  101. See for example Andrea Gattini, The Right of War Crime Victim to Compensation before National Court, (2005).3 J. INT'L CRIM. JUST. 224, 230-31, 242, he equates the ruling of the court in the matter to a self-assured judicial activism and a mixing of individual responsibility with state responsibility. He also asserts that state practice is contrary to such a finding. See also See, e.g., Thomas Giegerich, Do Damages Claims Arising from Jus Cogens Violations Override State Immunity from the Jurisdiction of Foreign Court, in The Fundamental Rules of the International Legal Order—Jus Cogens and Obligations Erga Omnes  at 216
  102. Bettauersupra, note 50, at 5,6
  103. Supra D'Amato at 6, he awaits the answers with keen interest.
  104. Petsche Supra, note 5