Reaction Paper on the Principle of Jus Cogens
By Mona Liza
Jus cogens is a principle of international law where a rule,
custom, treaty or international agreement is void if it conflicts with a
peremptory norm of general international law and violation of such
principle is absolutely not allowed either in international scene or
domestic sphere.1 States are expected to acknowledge the fact that they
make for valid and substantial international law even if such norms may
not have been provided for by treaties, nor even verbally agreed upon.2
Codifications of the principle of jus cogens have given the doctrine a
pinnacle status in the hierarchy of sources of international law.
Article 53 of the 1969 Vienna Convention on the Law of Treaties
(VCLT) provides that “[a] treaty is void if, at the time of its conclusion,
it conflicts with a peremptory norm of general international law.” The
same provision also provides that a peremptory norm may only be
modified by a subsequent norm of general international law having the
same character.3 Thus, further discussion on the matter provides that a
jus cogens rule may defeat a rule of ordinary customary international
law or even a resolution of an international organization.4
The classic examples of peremptory norms, as provided by legal
scholars and codified international law doctrines, include the prohibition
against nuclear air strikes against civilians, 5 genocide, 6 and slavery.7
From the examples alone, it could be seen that jus cogens, or the
1
1969 Vienna Convention on the Law of Treaties, art. 53, entered into force Jan 27, 1980, 1155 U.N.T.S. 331 [hereinafter VCLT]
2
Andrea Blanchi, Human Rights and the Magic of Jus Cogens, 19 EUR. J. OF INT’L LAW 491, 491 (2008).
3
VCLT, supra note 1.
4
Ulf Linderfalk, The Effect of Jus Cogens Norms: Whoever Opened Pandora’s Box, Did You Ever Think About the Consequences?,
18 Eur. J. of Int’l L. 853, 854 (2008) (citing Fragmentation of International Law: Difficulties Arising From the Diversification and
Expansion of International Law,” Report of the Study Group of the International Law Commission, May 1-June 9 & July 3-Aug. 11,
2006, UN Doc. A/CN.4.L.682).
5
Anthony D’Amato, It’s a Bird, It’s a Plane, It’s Jus Cogens!, 6 CONNECTICUT J. OF INT’L LAW 1, 1-6.
6
RESTATEMENT OF THE LAW (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES 167 § 702 (1987).
7
Id.
1
peremptory norm, is so evasive because it is supposed to be
fundamentally obvious and so positively ingrained—it is meant to be
some sort of collective world conscience, whispering in the ear of each
delegate in every international summit, “War? Genocide? Doesn’t that
sound wrong?” Peremptory norms thus appear to smell like, seem like,
and feel like “moral intuition.”8 The trouble lies in the fact that moral
codes, though they have influenced law so often since time immemorial,
have never made for stable law. Though some may argue otherwise,
morality is not so black and white as the law is, as there is a cultural,
social and historical dimension to morality that tints it in various shades
of gray. Nevertheless, the principle of jus cogens in international law is
here to stay,9 and it is interesting to see how the International Court of
Justice (ICJ) is able to dub certain norms customary international law
as jus cogens.
The ICJ first applied the principle of jus cogens, in the case
Nicaragua v. United States.10 The case involved the intervention of the
United States in the political unrest in Nicaragua, which led to the United
States using military force in the country to establish a pro-U.S.
government and aid this government in retaining power. Citing Article
2, paragraph 4 of the Charter of the United Nations, the Court had ruled
that the non-use of force is actually a peremptory norm, acknowledged
and honored by all States. In another case, Democratic Republic of
Congo v. Rwanda,11 the Court ruled that torture is prohibited as a matter
of peremptory norm. In arriving at this conclusion, the Court made
mention of the fact that the various domestic laws of almost all States
contain provisions against torture. It can be seen from these two cases
that peremptory norms can arise from treaty provisions or a survey of
8
Blanchi, supra note 2, at 493.
9
Linderfalk, supra note 4, at 855.
10
Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. U.S.), 1986 I.C.J. 14 (June 27).
11
Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), 2012 I.C.J. 422 (July 20).
2
the provisions of various jurisdictions—either way, jus cogens is
established by observing whether or not the majority of the States have
allowed a manifestation of that norm to pass into law for them, whether
by treaty or domestic law.
Despite the fact that a peremptory norm does not provide for an
exact coverage and definition, it is established that such norms protect
basic fundamental human rights that the modern man, and the States
of the world in turn, acknowledge as binding to all. Just as Article 1308
of the Civil Code provides that parties to a contract cannot stipulate
matters that are contrary to law, morals, good customs, public order or
public policy in their contracts,12 Article 53 of the VCLT gives States the
right to defend what is understood, universally, as just and correct.
Although these parameters are often vague and difficult to confine, they
do serve their purpose, particularly in the field of international human
rights.
12
An Act to Ordain and Instititute the Civil Code of the Philippines, [CIVIL CODE OF THE PHILIPPINES], Republic Act No. 386, art.
1308 (1950).
