THE HIERARCHY OF RULES IN INTERNATIONAL LAW: JUS COGENS

Differences between national and international legal order

National systems
- hierarchy of sources (usually: constitution, laws, regulations)
- hierarchy of legal rules produced through such sources (a law may not contradict
the constitution, a regulation may not contradict a law, and a fortiori, the
constitution)
Traditional international law
- custom and treaties are on an equal footing
- lack of hierarchy of sources and rules deriving from such sources
- freedom of States to alter custom or treaty rules to suit their interests
Today, there is still no hierarchy, but a class of general customary rules has acquired the
special status of peremptory norms.
Jus Cogens
- emergence of jus cogens can be traced to the late 60s and rests upon the idea that
a certain category of law that derives from reason and humanity (natural law)
should prevail over man-made law (consent-based law)
- the establishment for peremptory norms was a result of the initiatives of socialist
and developing countries
- The compromise reached between the proponents of jus cogens and the countries
that opposed the idea resulted in the affirmation of jus cogens norms, subject to
the strict condition that a judicial mechanism for determination of peremptory
norms be established. This mechanism was imbedded in the I.C.J. and the result
was that any State invoking jus cogens should be ready to submit the issue for
determinations to the I.C.J..
Establishment and Scope of Jus Cogens
- Vienna Convention 1969, Art. 53 and Art. 64 - do not exactly define jus cogens
but do establish its character of a peremptory norm with the effect that no other
rule of international law may derogate to it (Art. 53) and if a peremptory rule
emerges that is contrary to an existing custom or treaty, such custom or treaty
become void and terminate (Art. 64)
- Vienna Convention 1986, Articles 66(a) and 66.2 provide that in cases of dispute
regarding the actual content of jus cogens and, where parties may not resolve their
differences through negotiation or agree to arbitration, parties shall submit their
dispute to the I.C.J..
- Is universal acceptance of a norm as being peremptory necessary for its
formation? (It is enough for a large majority of representative States to recognize
such rule as part of jus cogens. It is safe to contend that all Major Powers should
assent to such rule).

Examples of Peremptory Norms

- The current state of affairs shows no state practice, with the accompanying opinio
juris of the peremptory character of certain norms, although there is consensus
among States, at the level of opinio juris or opinio necessitas regarding the
existence of peremptory international rules
- Art. 19 ICL Draft Articles on State Responsibility gives some clues as to which
principles or rules might belong to jus cogens - (refers to international obligations
so essential for the protection of fundamental interests of the international
community that their breach shall be recognized as a crime by that community as
a whole; e.g. prohibition of aggression; slavery, genocide, apartheid; forceful
colonization; massive environmental pollution)
- Prohibition of use or threat of force can be inferred from UN SC resolution
condemning the annexation of Kuwait by Iraq by declaring it null and void
- Ban on racial discrimination (customary rule); ban on torture - see Prosecutor v.
Furundzija (ICTY, 1998); general rules of self-determination.
- Most norms of humanitarian law (esp. war crimes and crimes against humanity).
See Zoran Kupreskic et al..
1) Limitations for Jus Cogens as Envisaged in the Vienna Convention
The provisions of the Vienna Convention on jus cogens can be invoked only by States
that are parties to both the VC and to a treaty that alleged as contrary to these peremptory
norms.
2) Remedies to the Limited Applicability of the VC provisions on jus cogens
After the adoption of the VC, some customary rules regarding the invalidity of treaties
have evolved to the effect that any State concerned (i.e. directly affected by a treaty that
is contrary to jus cogens), whether or not a party to the VC, may invoke the invalidity of
the treaty if such treaty is contrary to jus cogens or the rules prohibiting coercion of a
State or of a State representative.
What can also be observed is the emergence of a customary rule on the existence of
peremptory law. The prevailing view, shared by the majority of States, is that certain rules
are peremptory in nature (i.e. possess special legal force in that it renders null norms that
are contrary to it) and because of its wide acceptance this customary rule on jus cogens
also applies to normative acts by other international subjects (insurgents agreements) and
to legal standards other than those laid down in the treaties (e.g. SC resolutions). This
customary rule operates against states that are not party to the VC.
How did this rule evolve in such a short period of time? 1969 showed broad consent on
jus cogens as expressed in the Convention, but also based on the comments made during
the Conference. Many national courts have brought attention to peremptory norms.
International arbitral courts implicitly upheld the notion of jus cogens.
Note:
The customary rule on jus cogens does not, however, embody reference to the
compulsory jurisdiction in the case of dispute, so a State, not party to the VC, while it can

invoke the invalidity of a treaty as contrary to jus cogens, may not have much of a
recourse against the other State if the latter refuses to submit the case to judicial
determination. The contestant State will have to fall back on traditional mechanisms of
settling disputes.
Legal Effects of Jus Cogens:
- treaties and customary rules that are contrary to jus cogens are invalid ab initio
- possibly, a court will declare null and void only the provisions of the treaty that
are contrary to jus cogens, but uphold the validity of all other provisions (if such
are not tainted by illegality); VC, Art. 44.5 does not provide for this effect, and
may even be construed as excluding it. If Art. 44.5 is to be construed literally, as
nullify the entire treaty, such consequence will affect only States that are party to
the VC, but the possibility remains that as to non-parties to the VC the customary
rule of jus cogens may have the effect to void only those treaty provisions that are
contrary to peremptory norms
- With respect to construction: in case of doubt, international norms should be
construed so as to be consistent with peremptory norms
- Jus cogens is binding on UN SC, as well as ICTY and their resolutions or
judgments respectively shall be construed as to be consistent with jus cogens; and
if that is impossible, i.e. if they are bluntly contradictory, they shall be viewed as
invalid
- see example regarding the reconciliation of SC Res. 1497 which provided for the
exclusive jurisdiction of the State of the criminal who falls under the grave
breaches provisions of the Geneva Conventions (grave breaches of humanitarian
law belong to jus cogens and are intransgressible as the I.C.J. held in Threat or
Use of Nuclear Weapons) and the Geneva Conventions which provided for
universal jurisdiction. How can this inconsistency be solved? Strict interpretation
of the SC Resolution so as to give the national state primary jurisdiction (a first
shot), unless the State where the criminal was apprehended is not satisfied that the
national state will pursue a genuine trial, in which cases it may decide to try it
itself, or extradite it to a foreign country that has a nexus (a connection) to the
crime
- Deterrent effect. See Furundzija
- Bearing on the recognition of States. See Arbitration Commission on Yugoslavia,
Opinion 10: recognition is a discretionary act by each state, subject only to
compliance with the imperative rules of international law. It follows that when
such rules are violated (e.g. entity that meets the requirements for statehood
emerges as a result of aggression), other States should withhold recognition.
- A reservation that is contrary to jus cogens is inadmissible
- Effect on extradition treaties: A State may not comply with its obligations under
an extradition treaty if doing so may lead to a possible violation of jus cogens (i.e.
if compliance with the extradition treaty will expose the person to the risk of
facing torture, persecution on ethnic, religious or racial grounds).
- State immunity from foreign jurisdiction peremptory norms may remove such
immunity

See Furnundzija - peremptory norms may produce legal effects at the municipal
level, by rendering internationally invalid any national norms contrary to them.
According to some courts, the peremptory character of certain norms may be
granting to State courts universal criminal jurisdiction over the alleged authors of
those crimes. In other words, the alleged author of crimes could face prosecution
in any country in the world (even a country that has no nexus to the crimes).

The limited reliance on Jus Cogens in International Dealings

- these norms have been used only in dissenting opinions, orbiter dicta, State
pronouncements, declarations of international bodies, by litigants.
- Not yet invoked to invalidate a treaty provision
- I.C.J. has avoided the term
- States refrain to invoke such rules out of principle, because they are still inclined
to act out of self-interest and will not invoke a rule unless they are affected
However, jus cogens rules do have a deterrent effect and can be said to shape State
conduct. Still, in bilateral relations, jus cogens norms still remain a potentiality.
Jus Cogens at the National Level
- jus cogens was used as the rationale for invalidating treaty provisions that were
determined to be contrary to it. See Bufano (Swiss Supreme Court, 1982)
refused to comply with its obligations under the extradition treaty it had
concluded with Argentina, stating that the provisions of the European Convention
on Extradition and the ECHR (European Convention of Human Rights) apply to
Argentina as general principles of international law and justify Switzerlands
refusal to extradite in the case at issue because the crimes may qualify as political
crimes and also because the accused were likely to face torture, which was a
peremptory norm of international law and as such required Switzerland from
refraining to fulfill its treaty obligations.
- In later decisions the Swiss Supreme Court relied on Bufano and relied on jus
cogens, by explicitly stating the Art. 3 of the ECHR belonged to jus cogens.
Notion of jus cogens was enshrined in Swiss Constitution in 1999.