Peremptory norms of International Law (Jus Cogens) – Point Note


Peremptory norms of International Law (Jus Cogens)

  • the prohibition Jus cogens (compelling law) is a fundamental principle of international law
  • Accepted by the international community of states
  • As a norm from which no derogation is permitted
  • There is no clear agreement regarding precisely which norms are jus cogens nor how a norm reaches that status, but it is generally accepted that jus cogens includes-
  1. of genocide,
  2. maritime piracy,
  3. slaving in general (to include slavery as well as the slave trade),
  4. torture, and
  5. wars of aggression

 

Status of peremptory norms under international law

  • The concept of jus cogens norms evolved out of the recognition that certain values or interests are common to and affect the international community as a whole
  • And that the violation of this values or interests threatens peace, security world order
  • Jus cogens norms command a peremptory status under international law
  • Jus cogens are superior to other rules of international law because of their very nature and cannot be changed or derogated from through agreement or custom
  • Specifically, they cannot be changed by state practice, agreement, unilateral reservation, or customary international law
  • A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purpose 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’

Article 53 of the Vienna Convention on the Law of Treaties

 

 

  • ‘if a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates
  • Article 68 of the Vienna Convention on the Law of Treaties
  • The number of peremptory norms is considered limited but not exclusively catalogued
  • They are not listed or defined by any authoritative body, but arise out of case law and changing social and political attitudes.
  • Generally included are prohibitions on:
    • As an example, it is impermissible for a state to acquire territory through war.
    •  waging aggressive war,
    • crimes against humanity,
    • war crimes,
    • maritime piracy,
    • genocide,
    • slavery,
    • torture.

 

  • There are often disagreements over whether a particular case violates a peremptory norm. As in other areas of law, states generally reserve the right to interpret the concept for themselves
  • One positive right considered to be a peremptory norm is the right to use self-defence. Though qualified, this right is shared by states and individuals

 

Article 33 (1) of the 1951 Convention relating to the Status of Refugees, which states that:

  • “No Contracting State shall expel or return (‘refouler‘) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.“
  • Principle of non-refoulement and the Pacific Solution of Australia?

Examples of Jus Cogens

  1. Prohibition on the threat of use of force and on the use of coercion
  • The use of force by states is controlled by both customary international law and by treaty law. The UN Charter reads in article 2(4):
  • “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations”
  • Article 2(4) does not use the term “war” but rather refers to “the threat or use of force.”
  • Although clearly encompassed by the article, it is ambiguous whether the article only refers to military force or economic, political, ideological or psychological force. [economic embargo on IRI, NK]
  • The Preamble to the Charter declares that the “armed force shall not be used, save in the common interest…” Article 51 preserves the “right of individual or collective self defence if an armed attack occurs…”.

 

Pre-emptive force (sabre rattling of Israel regarding Iranian nuclear issues, Operation Babylon 1981, Operation Orchard 2007)

  • There is a limited right of pre-emptive self-defence under customary law. Its continuing permissibility under the Charter hinges on the interpretation of article 51.
  • If it permits self-defence only when an armed attack has occurred, then there can be no right to pre-emptive self-defence.
  • However, few observers really think that a state must wait for an armed attack to actually begin before taking action.

Peaceful settlement of international disputes

 

  • The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

Article 33 UN Charter

 

State parties are under international obligation to settle disputes peacefully

  • Either diplomatic or adjudicatory
  • Diplomacy normally involve less formal and less legalistic manner
  • Parties may seek to do this either directly between themselves or with the aid of a third person/country

International adjudication involves parties submitting their disputes to a third person

  • who employs a formal, legalistic process to attempt to resolve the dispute
  • The result is a judgement binding on the parties

While two broad categories of resolving international disputes are distinct, but they are not mutually exclusive. Dispute may start from negotiation and then finally resolved by arbitration

 

Example:

Alabama Claims Arbitration 1872  (USA and UK)

The Alabama Claims were a series of claims for damages by the U.S. government against the government of the United Kingdom for the assistance given to the Confederate cause during the American Civil War. After international arbitration endorsed the American position in 1872, Britain settled the matter by paying the United States $15.5 million for damages done by several warships built in Britain and sold to the Confederacy, thus ending the dispute and ensuring friendly relations.

 

 

  1. Principle of the sovereign equality of states

 

  • One of the fundamental rights of a state is equality with all other states.
  • This right is inherent in the concept of a state as a subject of International Law and is given general recognition by long-standing state practice.
  • In its legal effects the principle of state equality has several important consequences. Probably the most important manifestation of the doctrine is the right of every state to have one vote in matters requiring the consent of states.
  • A natural consequence of this is that the vote of every state, no matter how large or small the state, counts the same as the individual votes of all other states.
  • Legal equality also means that no state can claim jurisdiction over other states, and as corollary, a state is independent of the political will of all other states

 

  1. The principle of territorial integrity

 

  • an important part of the international legal order and is enshrined in the Charter of the United Nations,
  • In particular in Article 2, paragraph 4”[1] (the prohibition of the use of force), as well as
  • In other important texts, including those on self-determination. The concept includes the inviolability of the territory of the State, including territory under the effective control and possession of a State.
  • The International Court has held that “the scope of the principle of territorial integrity is confined to the sphere of relations between States.”

(International Court of Justice, Accordance with international law of the unilateral Declaration of Independence of Kosovo, Advisory Opinion, ICJ Reports (2010), paragraph 80)

 

 

Rayhanul Islam

The author is an original thinker; often challenges the regular rule of conduct considering various perspective on the basis of scientific reasoning to ensure the peace and prosperity of the society. He works as freelancer advocate and promotes legal knowledge and human right concept to the root level. The author is also a tech enthusiast and web developer, he loves psychology as well.

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