Principle of Jus Cogens under International Law
The principle of Jus cogens is the peremptory norm or a rule that cannot be deviated while framing any international law or agreement. It is vital to understand the concept of Jus cogens to delineate any aspect of international law. This article shall endeavour to explain the meaning and evolution of the principle of jus cogens, and its… Read More »
The principle of Jus cogens is the peremptory norm or a rule that cannot be deviated while framing any international law or agreement. It is vital to understand the concept of Jus cogens to delineate any aspect of international law. This article shall endeavour to explain the meaning and evolution of the principle of jus cogens, and its applicability in present-day conventions. I. Meaning of Jus Cogens Jus cogens, under international law, is equally complicated to understand as it is...
The principle of Jus cogens is the peremptory norm or a rule that cannot be deviated while framing any international law or agreement. It is vital to understand the concept of Jus cogens to delineate any aspect of international law. This article shall endeavour to explain the meaning and evolution of the principle of jus cogens, and its applicability in present-day conventions.
I. Meaning of Jus Cogens
Jus cogens, under international law, is equally complicated to understand as it is essential. Let us make a comparison with an Indian concept to understand it better. Under Article 25 of the Indian Constitution, there are three restrictions against the freedom to practise religion. These are public order, health and morality.
Moreover, under the Indian Penal Code and also the CrPC, several provisions (CrPC Section 110, 139, 140, etc.) allow the law enforcers, i.e. the police to arrest and detain any person for disrupting public order. Similarly, many other laws state public order and morality as an essential ingredient for the existence of such a law. Also, the same public order and morality can be a reason for the non-enactment of a law. For instance, the Uniform Civil Code cannot be enacted because of the threat of disruption of public order. Hence, it would not be wrong to infer that any law which is made must be in consonance with public order.
Similarly, in the case of International laws, jus cogens is that element that prescribes all the grundnorm that no international law, convention or treaty can violate. Like public order, jus cogens is a criterion to be kept in mind while framing an international law.
Jus cogens is a Latin phrase which, etymologically, means “a law which is compelling or binding”, something that cannot be surpassed or overlooked. So, jus cogens is not a rule, but like a position that is bestowed upon a rule because of its nature. So, to be precise, public order can be a jus cogens in international law since no law can be valid if it disrupts public order. Similarly, if an Article in a convention requires the prevention of genocide, such article becomes a jus cogens and no law can be made overlooking its provisions.
In India, the Constitution is the grundnorm and the principles enshrined in the Constitution such as Democracy, Republic, Equality, Liberty, etc. are our jus cogens which cannot be derogated or deviated from by any Indian law. Whenever any changes are to be made in such principles, a later constitutional amendment is required which must reflect the will of the people.
Similarly, certain principles have been accepted as jus cogens in International law and they can be changed only by a new principle replacing the old one. Both the concepts of jus cogens in International law and constitutional principles in domestic laws are based on the belief that there exist certain fundamental and superior principles and values within a particular system that runs the system.
II. Evolution of the Principle of Jus Cogens
The principle of jus cogens developed over a long period of time starting from customary international law to present treaties as well. This evolution can be understood through a series of cases illustrated and explained hereinbelow:
A. Barcelona Traction Case (1970)[1]
In this case, the Barcelona Traction Company was established in Toronto, Canada to produce and distribute electricity to Catalonia, Spain through its subsidiary companies in Spain. The shareholders in the company included several Belgian citizens as well. After the First World War, several disputes arose between different countries and numerous countries stopped the exchange of currencies of other countries they had no alliance with.
One such case was between Spain and Belgium whereby the Belgian shareholders in Barcelona Traction Company could not sell back their shares for non-acceptance of currency by Spain. The Belgian government approached the International Court of Justice claiming compensation on behalf of the Belgian shareholders.
The main issue before the court was jurisdiction to try the case (jus standi in International law). The court observed that the principle of equity is a jus cogens in International law and it requires that the case by tried by the Spanish courts alone. Thus, the principle of equity was declared as a jus cogens.
B. Bosnian Genocide Case (1993)[2]
In this case, a claim was filed before the ICJ by a Bosnian citizen and advisor to the government claiming that the Bosnian Muslims in Serbia and Montenegro are being exterminated by the Serbs. During the proceedings, one issue that arose was, “can the resolution of the Security Council of the United Nations be preceded over jus cogens of international law?”.
Judge Lauterpacht, in his separate concurring opinion, gave an explanation to this issue. He mentioned Article 103 of the United Nations Charter which allows the security council resolution to supersede obligations under any other international law or treaty and said that the same provision cannot be said to apply when it comes to jus cogens. Jus cogens are those principles of international law which cannot be superseded, they have to comply under any circumstance.
C. US v. Matta-Ballesteros (1995)[3]
The concept was jus cogens also gained significance in domestic laws and domestic courts as well. One of the renowned cases explaining the jus cogens in the United States in the United States v. Matta-Ballesteros. In this case, the US court observed that norms of jus cogens are peremptory in nature, i.e. they are the supreme principles that cannot be deviated from either by any domestic law or a treaty. Any law that is contrary to the jus cogens shall stand void ab initio which is void from the very beginning.
III. Jus Cogens under the Vienna Convention on the Law of Treaties
Like mentioned before, the jus cogens is no longer a belief or an unrecognized concept. It has been duly recognized in codified treaties and conventions and one such convention is the Vienna Convention on the Law of Treaties. Let us consider Article 13 (2) of the Indian Constitution to understand the inference drawn here.
According to this article, any law which is made by the Indian Parliament shall be void if it violates a fundamental right or goes against any provision of Part III of the Constitution. Hence, this provision ensures the authority and superiority of the Constitution over other laws and whenever a new law is made or has to be made, the Constitutional provisions need to be taken into consideration.
Similarly, Article 53 of the Vienna Convention on the Law of Treaties resonates with Article 13 (2) of the Constitution of India. It states that any international treaty or agreement that is concluded and is against any peremptory norm of public international law, shall be void. Moreover, Article 64 of the convention expands the scope jus cogens by stating that if a new principle or norm is declared to be jus cogens, the existing treaties must comply with that as well. Any treaty that fails to comply with the new jus cogens will be void and hence, terminate automatically.
It is, though, not easy to determine or stamp any rule as a jus cogens. It must be a cardinal principle of law that interests every State in the world. For instance, the prohibition of genocide, crimes against humanity, prevention of slavery, racial discrimination, etc. are instances of jus cogens which should be noted while framing a treaty or any international agreement.
IV. Conclusion
A serious issue that has arisen in recent years is the commission of international crimes and rampant violation of jus cogens. The International Law Commission made the following recommendations in its draft articles of 1996 to cope with these situations:
- Exacerbation of the concept of jus cogens in the international criminal law and every area of international laws from which no derogation could be permitted, and
- Making provision for individual criminal responsibility as a substitute for State responsibility.
Thus, it may be concluded that to ensure that there is no breach of international law by the states, it is essential to recognize the existence of peremptory norms or jus cogens through provisions of laws themselves like the Vienna Convention on the Law of Treaties.
- Malcolm N. Shaw, International Law, 6th 2008.
- Sztucki, Jus Cogens and the Vienna Convention on the Law of Treaties, New York, 1974
- Gaja, Jus Cogens beyond the Vienna Conventions, 172 HR, 1981.
[1] Belgium v. Spain (Barcelona Traction Co. Case), ICJ Reports 1970, p. 46
[2] Bosnia & Herzegovina v. Serbia & Montenegro (Genocide Convention Case), ICJ Reports 1993, p. 167.
[3] US v. Matta-Ballesteros, 71 F.3d 754 (9th circuit, 1995).