Jus Cogens in international law

The jus cogens (from the Latin “biding law”, an imperative norm) concerns principles of law considered universal and superior, and which must constitute the bases of the imperative norms of general international law. This concept is similar to, but not totally consistent with, that of customary international law, which presupposes recognition and general effective application. Jus cogens obligations derive from the usual processes creating ordinary customary international law.

The 1969 Vienna Convention on the Law of Treaties stipulates in its Article 53 on “Treaties conflicting with a peremptory norm of general international law (“jus cogens”)” that “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”.

There is a striking similarity between this provision, and that of Art. 38, para. 1(b) of the ICJ Statute which states that “1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: international custom, as evidence of a general practice accepted as law;”. Art. 53, like Art. 38, para. 1(b), is interested, not in the law-creating process as such, but in the existence of law as a matter of fact. Stated more specifically, for Art. 53 the only relevant question is whether a rule of international law is jus cogens or not.

If a jus cogens status is conferred on a rule of law because the international community of states accepts and recognises this rule as non-derogable and modifiable only by the creation of a new norm of jus cogens, then the definition assumes what remains to be established: the creation of jus cogens. More than ever before international lawyers resort to jus cogens for the construction and reinforcement of legal arguments.

The definition of jus cogens

The 1969 Vienna Convention on the Law of Treaties stipulates in its Article 53 on “Treaties conflicting with a peremptory norm of general international law (“jus cogens”)” that “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”.

The 1969 Vienna Convention on the Law of Treaties stipulates in its Article 64 on the “Emergence of a new peremptory norm of general international law (“jus cogens”)” 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”.

These are mandatory rules, whose respect is more imperatively required than mandatory standards. Thus, when the violation of a mandatory rule calls into question the responsibility of the State, the violation of an imperative rule entails the nullity of the contrary treaty (relative nullity). They are rules of general international law, with a universal vocation. There is no question of “regional” jus cogens in the 1969 Vienna Convention, even if admitted by some authors.

These are evolutionary rules. Norms of jus cogens not only impose principles in treaty negotiations, they also call into question treaties that were valid at the time of their entry into force. It is not only a condition of validity, but also a reason for termination. These are “accepted and recognized” rules as jus cogens by the international community of states as a whole: rules recognised and accepted as jus cogens (this is a process close to custom, jus cogens then constituting a hardened customary rule) by the Community of States as a whole (this formulation seems to exclude the fact that jus cogens is a direct manifestation of international law; it evokes a solidarity and unity of the International Society).

It could be argued that the recognition of the existence of rules of jus cogens constitutes a marked and remarkable return to the idea of “natural law”. These two notions are based on the same philosophical foundation: there are a number of fundamental rules related to universal consciousness, and inherent to the existence of any international society worthy of the name.

The 1969 Vienna Convention on the Law of Treaties notably stipulates in its Article 66 on “Procedures for judicial settlement, arbitration and conciliation” that “If, under paragraph 3 of article 65, no solution has been reached within a period of 12 months following the date on which the objection was raised, the following procedures shall be followed: (a) 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;”.

For treaties between States, Article 66 of the Vienna Convention provides for the compulsory jurisdiction of the International Court of Justice, which may be referred to by unilateral application in the event of a dispute, unless the parties agree to resort to the arbitration. For treaties to which international organisations are parties, international organisations may participate in contentious proceedings before the ICJ.

Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda)

On May 28, 2002, the Democratic Republic of the Congo (DRC) filed in the Registry of the Court an Application instituting proceedings against Rwanda for “massive, serious and flagrant violations of human rights and international humanitarian law” resulting “from acts of armed aggression perpetrated by Rwanda on the territory of the Democratic Republic of the Congo in flagrant breach of the sovereignty and territorial integrity [of the DRC], as guaranteed by the United Nations Charter and the Charter of the Organization of African Unity”.

In its Judgment of February 3, 2006, the Court ruled that it did not have jurisdiction to entertain the Application filed by the DRC. It found that the international instruments invoked by the DRC could not be relied on, either because Rwanda (1) was not a party to them (as in the case of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment), or (2) had made reservations to them (as in the case of the Convention on the Prevention and Punishment of the Crime of Genocide and the Convention on the Elimination of All Forms of Racial Discrimination), or because (3) other preconditions for the seisin of the Court had not been satisfied (as in the case of the Convention on the Elimination of All Forms of Discrimination against Women, the Constitution of the WHO, the Constitution of UNESCO, and the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation).

The principle of jus cogens is for the first time used by the ICJ: “The DRC further contended in its Application that Article 66 of the Vienna Convention on the Law of Treaties of 23 May 1969 established the jurisdiction of the Court to settle disputes arising from the violation of peremptory norms (jus cogens) in the area of human rights, as those norms were reflected in a number of international instruments”.

The Court then turns to the DRC’s argument that Rwanda’s reservation is invalid. In order to show that Rwanda’s reservation is invalid, the DRC maintains that the Genocide Convention has “the force of general law with respect to all States” including Rwanda, inasmuch as it contains norms of jus cogens. Rwanda observes inter alia that, although, as the DRC contends, the norms codified in the substantive provisions of the Genocide Convention have the status of jus cogens and create rights and obligations erga omnes, that does not in itself suffice to “confer jurisdiction on the Court with respect to a dispute concerning the application of those rights and obligations”.

Jurisdictional Immunities of the State (Germany v. Italy)

Between 2004 and 2008, Italian courts had issued a number of judgements in which plaintiffs, victims of war crimes and crimes against humanity committed by the German Reich during WWII, were awarded damages against Germany.

Ultimately, in 2008, Germany filed an application instituting proceedings against Italy before the International Court of Justice (ICJ), arguing that “in recent years, Italian judicial bodies have repeatedly disregarded the jurisdictional immunity of Germany as a sovereign State”, and thus violating international law. Italy disagreed, stating that the underlying acts were violations of jus cogens and therefore gave it the right to strip Germany from its immunity. Greece joined the proceedings as one of the Italian judgements concerned a declaration of enforceability by an Italian court of a Greek judgement that ordered Germany to pay compensation to victims of the Distomo massacre (in Greece). This declaration led to measures of constraint on German property in Italy.

The Court rejected Italy’s claims and fully agreed with Germany’s points. State immunity is part of customary international law, and the fact that the underlying acts (the WWII crimes) were violations of jus cogens did not deprive Germany from its jurisdictional immunity. Importantly, though, the Court notes that while the current judgement confirms jurisdictional immunity of states, this does not in any way alter the possibility to hold individuals criminally responsible for certain acts.