THE “APPROPRIATE” THEORY OF JUS COGENS NORMS – A SISYPHEAN CHALLENGE

ABSTRACT

Concepts like jus cogens and erga omnes have attracted much scholarly attention in the field of

international law. Many convincing arguments have been made with regards to the two concepts

and this paper looks at the concept of jus cogens in the light of those arguments. The paper tries

to answer primarily questions such as why certain norms are jus cogens, their relation with erga

omnes and why they must be complied with? The paper doesn’t propose a theory for jus cogens

rather only looks at existing jurisprudence and points out seeming contradictions.

I. JUS COGENS

To understand the theory of jus cogens it is pertinent to look at Article 53 of the Vienna

Convention on the Law of Treaties (hereinafter VCLT), which defines jus cogens as a

peremptory norm of general international law. Through this article recognition was sought for

certain existing norms, peremptory in nature; which would supersede any treaty1. It has been

argued that application of jus cogens principle is not only to treaties but also to any other act of

States2. Scholars have mandated that the norm of jus cogens is by its nature and utility so basic

that it forms the fundamental principles of the international legal order, which once ensconced

cannot be derogated away from by states either through treaties or practice. Functionally jus

1
Pamela J. Stephens, “A Categorical Approach to Human rights Claims: Jus Cogens as a limitation on
Enforcement”, 22 Wis. Int'l L.J. 245, at 248. Vienna Convention on the Law of Treaties, Article 53, Treaties
conflicting with a peremptory norm of general international law (jus cogens)-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, available at
http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf
2
Ibid., at 249. See also Theodor Meron, “On a Hierarchy of International Human Rights”, 80 Am. J. Int'l L., 19-21
(1986).

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 THE “APPROPRIATE” THEORY OF JUS COGENS NORMS – A SISYPHEAN CHALLENGE

cogens norms resemble natural law whose force cannot be avoided3. To further understand the

“higher” status of these norms they must be distinguished from other customary international

norms. It has been argued that jus cogens norms are “super-customary law” having a moral

force; rooted in custom; which binds all states positing common interest of mankind4. Jus cogens

norms do not require every state to consent to them and are applicable against those states that

have not consented to them5.

II. WHY JUS COGENS? WHY SHOULD THESE PARTICULAR RULES AND RIGHTS HAVE A HIGHER
STATUS IN INTERNATIONAL LAW THAN OTHERS? WHY SHOULD IT EXIST AT ALL?

A. Origin in Morality6

It is important to answer the question what gives jus cogens norms this “higher status”. Verdross

has spoken of jus cogens as being the “ethical minimum recognized by all the states of the international

community”7. Perhaps the horrors of World War II invoked a realisation in the international

community that there had to be a set of principles from which States could not be allowed to

derogate. After all, could morality survive the repetition of events like Nazi directed genocide in

Germany? Essentially, jus cogens norms are prohibition of genocide, slavery, war crimes etc.,

which if not given the status of “compelling law” would shake the foundation of morality and

3
Ibid, at 250. See also Rafael Nieto-Navia, “International Preemptory Norms (jus cogens) and International
Humanitarian Law”, available at www.iccnow.org/documents/WritingColombiaEng.pdf . See also Mark W. Janis,
Colloquy, “The Nature of Jus Cogens”, 3 Conn. J. Int'l L. 359, 362 (1988). See also, Hersch Lauterpacht, “The
Grotian Tradition in International Law”, 23 Brit. Y. B. Int'l. L. 1 (1940).
4
Ibid. See also David Klein, “A Theory for the Application of the Customary International Law of Human Rights by
Domestic Courts”, 13 Yale J. Int'l L. 332, 350-51 (Summer1988).
5
Eva M. Kornicker Uhlmann, “State Community Interests, Jus Cogens and Protection of the Global Environment:
Developing Criteria for Peremptory Norms”, 11 Geo.Int’l Envitl. L.Rev.101
6
Ibid, at page 109.
7
Ibid; See also A. Verdross, “Forbidden Treaties in International Law”, 31 Am. J. Int’l L. 571-574 (1937).

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 THE “APPROPRIATE” THEORY OF JUS COGENS NORMS – A SISYPHEAN CHALLENGE

human conscience8. Thus, jus cogens norms seem to have a moral base; the motivation to

comply with them comes from a sense of an intrinsic moral duty. In other words, they are

followed because states feel compelled to follow them.

B. Protection of “Community Interest”9

“Community Interest” in the context of jus cogens norms has a wider implication because it

refers not only to the interests of states but also to those of mankind and individuals10. It is out of

this “community interest” that we see emergence of common values and fundamental principles

that bind all states in light of pressing globally problems threatening the very survival of

mankind11. The International Court of Justice (hereinafter the ICJ) recognised “community

interest” in the protection of individuals in the obiter dictum of the Barcelona Traction case 12.

The ICJ further gave examples of prohibition of genocide, slavery, racial discrimination, as being

jus cogens norms and their protection being of legal interest to the states as they posed risk to all

humanity. The ICJ propounded obligations of a state flowing to the international community as a

whole13. Thus, jus cogens norms have protection of community interest making them inalienable.

C. Irrelevance of Persistent Objector; Non-consensual14

If jus cogens norms seek to protect the interest of mankind at large then a state or a group of

states cannot be allowed to derogate from them15. This is because the international community of

8
Ibid., A variety of literature on international law by scholars and ICJ decisions have repeatedly referred to
prohibition of genocide, slavery, war crimes as being jus cogens norms in the cases of Bosnia Herzegovina v.
Yugoslavia (Serbia and Montenegro) (Provisional Measures) (Separate Opinion of Judge Lauterpacht); Democratic
Republic of Congo v. Rwanda
9
Supra note 5 at 105.
10
Ibid.
11
Dinah Shelton, “Normative Hierarchy in International Law”, 100 Am. J. Intl. L., 297-300 (2006)
12
Ibid.; See also Barcelona Traction, Light and Power Co. (Belg. v. Spain), 1970 I.C.J. 3, 33 (Feb. 5, 1970)
13
Ibid.
14
Ibid.

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 THE “APPROPRIATE” THEORY OF JUS COGENS NORMS – A SISYPHEAN CHALLENGE

states as a whole agrees to be bound by it without the possibility of derogation in any form. It

precludes a situation where a state might refuse to be bound by persistently objecting to it, as is

possible with other norms of customary international law16. We can then say that jus cogens

norm is a customary international norm devoid of consent. For example the Apartheid

Government in South Africa which persistently objected to the international norm prohibiting

racial discrimination was bound by the norm regardless17. It would seem that jus cogens norms in

international law are those norms which can be equated to constitutional law in a nation. If we

see the world as a country, then its constitutional law would necessarily include jus cogens

norms18.

III. WHEN IS AN ERGA OMNES OBLIGATION NOT JUS COGENS?

Re-iterating the over-riding importance of jus cogens norms as involving in some sense matters

of international public policy, states have legal interest in the protection of jus cogens norms19.
20
The ICJ in the Barcelona Traction Case stated that importance of the rights involved in the

protection of jus cogens attracted an obligation valid erga omnes, i.e., owed to the international

community as a whole. In Bosnia and Herzegovina v. Yugoslavia, the ICJ stated that an erga

omnes obligation necessarily arose from the outlawing of genocide; acts of aggression including

protection of basic human rights, prohibition of slavery and racial discrimination21. It is an

indispensable obligation to promote the human rights and legal interest of all States. Since erga
15
Ibid.
16
Supra note 11
17
Supra note 5
18
See also M.Byers, “Conceptualising the Relationship between Jus Cogens and Erga Omnes Rules”, 66 Nordic J.
Int’l L. (1997), p.212,213,219
19
Rafael Nieto-Navia, “International Preemptory Norms (jus cogens) and International Humanitarian Law”,
available at www.iccnow.org/documents/WritingColombiaEng.pdf, p.14. See also M.Byers, “Conceptualising the
Relationship between Jus Cogens and Erga Omnes Rules”, 66 Nordic J. Int’l L. (1997), p.211.
20
Barcelona Traction, Light and Power Co. (Belg. v. Spain), 1970 I.C.J. 3, 33 (Feb. 5, 1970)
21
Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia).

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 THE “APPROPRIATE” THEORY OF JUS COGENS NORMS – A SISYPHEAN CHALLENGE

omnes “flows to all” it is derived from jus cogens norms which protect the rights of all22.

However, distinction can be drawn between the concept of jus cogens and erga omnes in that the

former is defined in terms of status and the latter in terms of the implication of that status23. It

can be argued that since erga omnes obligation is owed to entire international community, it is

jus cogens in that it necessarily entails the protection of interest of mankind and cannot “flow to

all” if it is not compelling. Since erga omnes obligation flows to all, it necessarily has the force

of a compelling norm, and becomes jus cogens. The problem with this reasoning as identified by

Bassiouni is that it is circular as “what is compelling flows to all” and “what flows to all is

compelling”. There does exist a distinction between the two concepts. Bassiouni has argued that

erga omnes necessarily arises out of a jus cogens norm24. Thus, even though obligation erga

omnes and jus cogens norms intersect in their purpose with regards to the protection of mankind,

they are not the same, but two sides of the same coin25.

The idea is that jus cogens entails a right and erga omnes the duty. So, prohibition of genocide

which embodies right to life is jus cogens out of which the erga omnes duty to protect arises. Out

of this right to life also arises the secondary right to take an action against the offender and the

duty that action be taken. Does it mean that the duty attached to this secondary right is also erga

omnes? It is open to interpretation what right comes out of the primary right embodied in jus

cogens, and therefore the duty attached to that secondary right cannot flow to all. In simple

words, even though duty to protect life is erga omnes, how that duty is executed is not because

22
M.Cherif Bassiouni, Crimes against Humanity in International Criminal Law, 2nd ed. 1999, p.211, See also
Kenneth C. Randall, “Universal Jurisdiction Under International Law”, 66 Tex. L.Rev.,785, 829-30, (1988).
23
Ibid. See also M. Cherif Bassiouni, “International Crimes, Jus Cogens and Obligatio Erga Omnes”, available at
www.sos-attentats.org/publications/bassiouni.jus.cogens.pdf
24
Ibid.
25
Ibid.

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there can be different ways of protecting. How can that bind the international community as a

whole? Thus, erga omnes obligation is not necessarily jus cogens.

IV. WHY SHOULD STATES HAVE TO COMPLY WITH THESE RULES REGARDLESS OF THE
SURROUNDING CIRCUMSTANCES AND THEIR SECURITY (AND POLITICAL) EXIGENCIES?

The fact that a state finds itself in a situation where compliance with a jus cogens norm becomes

difficult, such as national security, still does not validate derogation as situational exigencies

cannot be allowed to cloud the moral nature of jus cogens. It is because of its base in morality

that compliance with jus cogens cannot be a matter of convenience26. However, in most cases the

instinct of survival would take precedence over being moral. A person suffering from hunger

would contemplate stealing food regardless of the moral basis of his act. In my view jus cogens

operates on common belief, therefore the deviation of a single entity possibly in times of national

emergency cannot destroy the moral correctness of jus cogens, however this is not to say that a

state can commit war-crimes when it decides to fight back in self-defence.

The problem with the reasoning that jus cogens should be complied to as it has a moral

foundation is that who decides what is jus cogens? Evidently, it’s the international community as

a whole. However, is it right to say that persistent objectors also fall within “international

community as a whole”?27 This approach probably has its roots in the utilitarian argument of

“greatest good for the greatest number” or differently, the “majority rules”. Though it might be

exigent to address the majority’s view, it does not provide any moral basis for ousting the

minority. How does the majority know what is right? How does the majority know that it’s time

to change or modify the moral base of the norm, in the light of Article 53 of the VCLT which

26
Fiona De Londras, “The Religiosity of Jus Cogens: A moral Case for Compliance?”, in Religion, Human Rights &
International Law, Rehman & Breau, ed., pp. 247, Martinus Nijhoff, 2007
27
Supra note 19

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allows for such a change? What source does the select international community attribute its

power to ascertain the minimum standard of morality in international law? In other words who

gives the majority the sole monopoly over deciding what morality is?

Taking the minority’s case, the Nazi regime did not think twice before carrying out the ethnic

cleansing of Jews. Genocide occurred in Sudan despite lengthy jurisprudence on jus cogens. To

them, there was nothing morally wrong in committing those acts. Evidently “more authority

exists for the category of jus cogens than exists for its particular content”28.

V. CONCLUSION

The problem of determining an appropriate theory of jus cogens stems from the fact that there is

little evidence to support or illustrate the contents of jus cogens. Even while dealing with jus

cogens and erga omnes obligation the ICJ has failed to explicitly define the elements of either.

The biggest problem is that we don’t know what is what. However, must we necessarily view

this as problem? This uncertainty in international law can very well be a saving grace against the

rigors of strict black letter interpretation of law, especially when global human concerns are

dynamic and ever-changing. It is because of this “open to interpretation” feature of international

law that there even exists international jurisprudence on environmental law.

We as human beings have to accept that some things are beyond our control, including our

endeavours to protect the interest of all through mechanisms such as jus cogens norms. The

world cannot be a safe place for all, cannot entitle everyone education or food or equality, the

world cannot be perfect. This reflects the imperfection of international law. Even Nature which is

closest to perfection devised viruses in order to better itself. Even though international law

28
Ian Brownlie, Principles of Public International Law, 514 (Oxford 5th ed. 1998)

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mandates to guarantee inalienable rights to all, the fact that it cannot should be irrelevant as long

as there is an effort towards the realization of those rights. So perhaps the beauty of international

law lies in its imperfection.

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