Hasmath, R.

(2012) The Utility of Regional Jus Cogens, Paper Presented at American Political Science
Association Annual Meeting (New Orleans, USA), August 30-September 2.
1

The Utility of Regional Jus Cogens

Reza Hasmath
*

University of Oxford

ABSTRACT: This article examines a regionalised set of international legal norms and
values, and expunges whether they can be reconstituted as regional jus cogens norms. An
analysis of the Brezhnev Doctrine, juvenile executions in the Americas, and Islamic human
rights will be instructive in this manner. The practical utility of regional jus cogens norms
will also be highlighted. Steeped in a positivist stance, the article suggests that a set of higher
laws of overriding importance can assist in accomplishing certain political tasks that are
deemed acceptable within a specific time-period by a group of nation-states. Moreover,
regional jus cogens norms can be replaced by another super-norm, or eliminated entirely by
the passing of their usefulness. The implications for the existence and practice of regional jus
cogens norms will be considered, notably their effect on sovereign equality and the promotion
of differential treatment. Given a current international community of nation-states
characterized by unprecedented heterogeneity, this article will argue that the use of regional
jus cogens norms are demanded in limited situations.

KEYWORDS: Jus Cogens, Regionalisation, Sovereign Equality, Differential Treatment

INTRODUCTION

Throughout the twentieth century, the principle of jus cogens has steadily become an accepted
doctrine of international law. The main idea being that a universal higher law of overriding
importance exists, which the international community of nation-states ought to abide by. This
educes the question of whether a regional set of legal norms and values exist, and subsequently,
contribute to the establishment of a regional jus cogens? Moreover, does a general and
consistent practice of a regional group of states sufficiently constitute a regional peremptory
norm of general international law? This article will examine these analytical queries, as well as
outline the implications for the potential existence and practice of regional jus cogens. In the
first section, a working definition and criteria for identifying norms of jus cogens will be
conceived. At core, the article will suggest that there is an inherent tension between natural law
theories and legal positivism, hindering the evolution of a complete and coherent list of norms of
jus cogens. This assertion provides a corollary to the second section that aims to clarify the
scope of regional jus cogens and its potential utility for international law. An analysis of custom
and treaty formations will be informative for this endeavour. Cases and instances that
demonstrably testify to the norms of regional jus cogens will be explored in the third section
with emphasis placed on exploring the Brezhnev Doctrine, juvenile executions in the Americas,
and a regional human rights bloc in Islamic nation-states. Suffice to say, there are certain
political effects that will arise by employing regional jus cogens. One possible impact is that
regional jus cogens may perpetuate greater sovereign inequality and promote differential

*
Winner of the Society for the Study of Social Problems Alfred R. Lindesmith Award. I am grateful to
J ennifer Y.J . Hsu and Nesam Mcmillan for their insightful comments and suggestions.
Hasmath, R. (2012) The Utility of Regional Jus Cogens, Paper Presented at American Political Science
Association Annual Meeting (New Orleans, USA), August 30-September 2.
2

treatment among nation-states. The subject of the consequences of regional jus cogens will be
dealt with in the fourth section. Finally, the last section will look at the utility of a norm of
regional jus cogens in present-day. In sum, this article will illustrate that regional jus cogens can
exist in international law and serve a significant purpose for a group of nation-states, albeit in
limited situations.

THE FRAMEWORK OF JUS COGENS

What is Jus Cogens?
Jus cogens are peremptory norms of international law that the international community of
nation-states as a whole accepts and recognises as a norm from which no derogation is justified
and which can be modified only by a subsequent norm of general international law having the
same character.
1
This idea of jus cogens has attained a virtual ontological position in the
structure of the international legal system as Article 53 of the 1969 Vienna Convention on the
Law of Treaties (VCLT) continued to state: a treaty is void if, at the time of its conclusion, it
conflicts with a peremptory norm of general international law.
2
Similarly, Article 64 suggested
a treaty becomes void and terminated if it is in contradiction with a newly emerged peremptory
norm of general international law (jus cogens superveniens.) This stance is further reinforced in
the 1986 VCLT with repetition of the same verbatim.
3
In this respect, jus cogens can be seen as
a body of universal higher law that no nation-state ought to nor should violate. If a nation-state
objects to a jus cogens norm, the nation-state will still be obligated by this norm despite its
continued opposition.
The laws governing state responsibility also stress the importance of jus cogens norms. The
International Law Commission (ILC) outlined, in Draft Articles 40 and 41, that international
crimes resulting from a breach of obligations under peremptory norms of general international
law is a serious offence.
4
Furthermore, the ruling of J udge J ennings in the International Court
of J ustice (ICJ ) judgment on the Nicaragua Case is instructive in pointing out particular rules
between two or more nation-states will take precedence over general obligations, save where the
latter constitute rules of jus cogens.
5
The growing acceptance of jus cogens doctrine will, if it is
not the scenario already, be reflected in an increasing reliance on specific peremptory rules by
nation-states.
However, there is no general agreement as to what specific rules of international law have
attained the status of jus cogens. From the US Court of Appeal ruling in the Committee of
United States Citizens Living in Nicaragua v. Reagan, there is a loose understanding that jus
cogens is concerned with substantive, and not procedural obligations.
6
Substantively, the

1
Vienna Convention on the Law of Treaties (1969), 1155 UNTS 331.
2
Ibid.
3
Vienna Convention on the Law of Treaties Between States and International Organizations or
Between International Organizations (1986), UN DOC. A/Conf. 129/15.
4
International Law Commission, Draft Articles on the Responsibility of States, Yearbook of
the ILC (2001), p. 29.
5
Martin Dixon, Cases and Materials on International Law (Oxford: Oxford University Press,
2003), p. 42.
6
Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929 (D.C. Cir.
1988).
Hasmath, R. (2012) The Utility of Regional Jus Cogens, Paper Presented at American Political Science
Association Annual Meeting (New Orleans, USA), August 30-September 2.
3

Nicaragua Case suggests that the prohibition on the use of force is a rule of international law
having the character of jus cogens. The third series of Restatement on Foreign Relations of the
United States suggested that, at minimum, jus cogens covers murder, torture, genocide and
slavery.
7
Arguably, the list can also be expanded to include the prohibition of crimes against
humanity, the right of self-determination, and the freedom of the high seas. One of the problems
in compiling a definitive list of norms of jus cogens is an underlying tension between natural law
theories and legal positivism.

Natural Law vs. Legal Positivism
Natural law concepts played a prominent role in the development of jus cogens in
international law. Natural law theories articulate that nation-states cannot be free in the absolute
sense when establishing contractual relations. That is, nation-states are obligated to adhere to
certain fundamental principles based on considerations of embedded moral authority and merit.
As the ILC noted, the only possible criterion for distinguishing peremptory norms from other
norms was to determine whether the substance of the norm was deeply rooted in the
international conscience.
8
This stance was reinforced during the 1969 VCLT, where a number
of nation-states including Mexico, Italy, and Ecuador overtly stressed that jus cogens norms
derived from concepts of natural law,
9
and further, that rules of jus cogens are demonstrably
based on the legal conscience and moral beliefs of humankind.
10

A preoccupation with natural law places the foundations of jus cogens on shaky grounds. It
assumes the existence of a universalised system of norms derived from nature, that can be
projected onto general rules of international law that are norms of jus cogens. Legal positivists
have noted such claims conspires faulty logic. They contend that the existence and content of
law depends not on its merits, as natural law theories posits, but on social facts; essentially, jus
cogens norms are a social construction. Corresponding with the legal positivists' mode of
thought, in its commentary on the draft articles on peremptory rules, the ILC remarked, there is
no simple criterion by which to identify a general rule of international law as having the
character of jus cogens.
11
The reasoning being that it is not the form of a general rule of
international law, but the particular nature of the subject-matter with which it deals that may, in
the opinion of the Commission, give it the character of jus cogens.
12
Put another way, a
definitive ideal of what actually constitutes jus cogens cannot be established as it may not
coincide with the social reality of present day.
In the domain of natural law, the existence of a universal higher law with overarching
importance, binding on all subjects of law independent of their will, is an acceptable premise.

7
American Law Institute, Restatement of the Law Third, Restatement of the Foreign Relations
Law of the United States (1987).
8
International Law Commission, Yearbook of the ILC (1963), p. 63.
9
See the statements of the representatives of Mexico, Italy and Ecuador in the United Nations
Vienna Convention on the Law of Treaties, Official Records, First Session (1969).
10
See the statements of the representatives of Lebanon, Nigeria, Uruguay, Ceylon and the Ivory
Coast in the United Nations Vienna Convention on the Law of Treaties, Official Records, First
Session (1969).
11
International Law Commission, Yearbook of the ILC (1966), pp. 247-248.
12
International Law Commission, Yearbook of the ILC (1966), pp. 247-248.

Hasmath, R. (2012) The Utility of Regional Jus Cogens, Paper Presented at American Political Science
Association Annual Meeting (New Orleans, USA), August 30-September 2.
4

By contrast, the emergence of norms of jus cogens in the legal positivist tradition, involves
legislative processes capable of imposing peremptory rules on all members of a particular
community.
13
While domestic legal systems based on legislation by a sovereign are well
equipped in this regard, when projected onto international community of nation-states such a
proposition becomes problematic. There is a glaring disparity between the requirements of jus
cogens and the ability to codify it into effective laws. The legal processes provided in
international law for the creation of any rules are only by the consent and agreement of members
of the international community of nation-states. Due to this fact, a clear criterion for identifying
norms of jus cogens is difficult to achieve.

Potential Criterion of Jus Cogens Norms
The apparent necessity of having a criterion for jus cogens norms has been enforced by a
dominant legal positivist spin. The principal criterion of peremptory rules is considered to be
that they serve the interests of the whole international community, not the needs of an
individual state.
14
Furthermore, jus cogens norms cannot be considered as part of international
law without some approval within the normative legal process. As the representative of Brazil
commented in the United Nations Conference on the Law of Treaties:

international law was by definition formed by states, and no noble aspirations or
sentiments, love of progress or anxiety for the well-being of the peoples of the world could be
embodied in international instruments without the collective assent of the international
community.
15


This over-emphasis on validating proposed norms of jus cogens by the consent of nation-states
has even extended to the International Court of J ustice (ICJ .) In the South West Africa Case, the
ICJ remarked that it could take into account higher moral principles only in so far that they were
given a sufficient expression in legal form.
16
In short, jus cogens norms must be derived and
expressed within the present international legal structure. Thus, such criterion asserts whom the
relevant parties required to assent to particular jus cogens norms are, in addition to stating that
higher moral principles are only applicable when expressed in official, legal form. In spite of
this clarification, a vital omission remains: there is no mention of how to assess exactly what jus
cogens norms are.
Consequently, there are serious doubts whether or not the present normative international
legal processes can bring about the emergence of peremptory rules. Many delegations at the
VCLT have argued about the non-necessity of having a criterion for identifying jus cogens
norms. They have maintained that numerous domestic law constituencies have not necessarily
defined good custom, with no unsolvable difficulties having arisen in their application to

13
Gennady Danilenko, International Jus Cogens: Issues of Law Making, European Journal
of International Law, 2:42 (1991), p. 45.
14
Alfred Verdross, J us Dispositivum and Jus Cogens in International Law, American
Journal of International Law, 60:55 (1966), p. 55.
15
United Nations Vienna Convention on the Law of Treaties, Official Records, First Session
(1969).
16
South West Africa Cases: Second Phase, ICJ Reports (1966), p. 6.
Hasmath, R. (2012) The Utility of Regional Jus Cogens, Paper Presented at American Political Science
Association Annual Meeting (New Orleans, USA), August 30-September 2.
5

specific cases.
17
Therefore, jus cogens norms do not necessarily have to be identified to be
effectively applied to international treaties or state responsibility.
A fear has been articulated that having such a state-centred approach to determine jus cogens
norms could be a recipe for abuse by nation-states themselves. The international community of
nation-states is constructed along the lines of a myriad of interests, moral codes, values, beliefs
and socio-legal structures. It is thus quite difficult, if not impossible, to create an amalgamated
international legal order in which norms of jus cogens can arise from. In such an environment,
agreeing on jus cogens norms may run the risk of the silencing certain nation-states and perhaps
regional groupings. Indeed, negotiations during the 1969 VCLT heralded behaviour by nation-
states that reinforced the possibility of such an occurrence. Different nation-states put forward
diverging examples of alleged rules of jus cogens reflecting their own preferences. The United
Kingdom delegation to the United Nations Conferences on the Laws of Treaties summarised it
best with, what might be jus cogens for one State would not necessarily be jus cogens for
another.
18

Thus, norms of jus cogens can be understood and explained through two polar positions. On
one side, a jus cogens norm is taken to be universal in-itself; that is, it cannot be modified. No
mention is made as to how such an initial peremptory norm arose or can arise, save the general
arguments on natural laws. At the other extreme is the practical argument, whereby a norm of
jus cogens can be modified by any subsequent or concurrent norm. In effect, a norm of jus
cogens is exactly like any other norm since its existence is only tested by its usefulness, else it
will be replaced by another super-norm. J ustification for the existence of regional jus cogens
will lie mainly with the latter version in this dichotomy of explanations.

IN SEARCH OF REGIONAL JUS COGENS

The Scope of Regional Jus Cogens
Regional jus cogens are peremptory norms whose source lies within a regional set of higher
laws of overriding importance.
19
Regional jus cogens are not simply norms that have the breadth
and scope of jus cogens, except in a regionalised setting. The main difference between these two
concepts lies in their purpose and roots. Jus cogens norms as we have seen in the previous
section, can be defined twofold: the universal position and the practical position. Regional jus
cogens serve best to subscribe solely to a practical position.
To entertain the concept of a regional jus cogens norm that is universal in-itself would entail a
contradiction. The universal in-itself approach is derived from the claim that there are certain
inherent fundamental principles, based on considerations of moral merit and likely steeped in
natural-laws, embedded in all nation-states and societies. If such norms exist at a regional level,
then they cannot be fundamental in an absolute all-encompassing sense. Hence the

17
See the statement of the representatives of Philippines and Cyprus in the United Nations
Conference on the Law of Treaties, Official Records, Second Session (1970).
18
Vienna Convention on the Laws of Treaties (1969).
19
Regional jus cogens does not necessarily restrict to the same geographical region of the world.
Regional groupings could be made based on commonalities or similarities in political, social or
other affinities.

Hasmath, R. (2012) The Utility of Regional Jus Cogens, Paper Presented at American Political Science
Association Annual Meeting (New Orleans, USA), August 30-September 2.
6

contradiction, and the reasoning why a regional jus cogens norm cannot subscribe to a universal
in-itself position.
The practical position suits the concept of regional jus cogens. The underlying principle
being that a set of higher laws of overriding importance assist in accomplishing certain political
tasks that are intentionally and overtly deemed acceptable within a specific time-period by a
group of nation-states. Moreover, such regional jus cogens norm can be replaced by another
super-norm, or eliminated entirely by the passing of its usefulness. It is important to note that
the regionalisation of international law is not a novel concept. In fact, this practice can be found
embedded in custom and treaty-formation.

Custom
By no means is the regionalisation of custom a new concept. As Michael Akehurst explained,
in theory there could be customs existing among groups of States which are linked to one
another, either through historical, racial, political or other affinities.
20
In practice, the ICJ
effectively paved the way for the existence of regional custom in the Asylum Case (Colombia v.
Peru). Although the Court found against the existence of regional custom in this particular case,
its ruling observed that a state may unilaterally rely on regional custom, provided that:

(1) The custom is the subject of a continuous and uniform practice by the states in question;
(2) Such a rule was invoked by the state exercising it as a right;
(3) The rule is respected by the states against whom it has been enforced as a duty.
21


Furthermore, after the existence of regional custom is established, it must be shown that the state
with whom the custom is being enforced upon has not repudiated the custom through non-
adherence to it.
Case law also offers other evidence in support of the existence of regional custom. In the
Barcelona Traction case, J udge Gros suggested that the Court should consider whether there was
a custom among capitalist States giving Belgium locus standi.
22
It was only until the Rights of
Passage over Indian Territory Case that regional custom was established as a firm possibility.
The Court observed that a bilateral custom between India and Portugal should be honoured, as
there was:

no reason why long continued practice between two States accepted by them as regulating
their relations should not form the basis of mutual rights and obligations between the two
states.
23


Such a regional custom essentially prevailed over the general custom (lex specialis derogate
generali) in this particular case. One must point out however that there is a general difference

20
Michael Akehurst, Custom as a Source of Law, British Yearbook of International Law, 47:28
(1974), p. 28.
21
Asylum Case (Colombia v. Peru), 266 ICJ Reports (1950), pp. 277-278.
22
Barcelona Traction Case, ICJ Reports (1970), pp. 273-274.
23
Rights of Passage over Indian Territory Case, ICJ Reports (1960), p. 6.

Hasmath, R. (2012) The Utility of Regional Jus Cogens, Paper Presented at American Political Science
Association Annual Meeting (New Orleans, USA), August 30-September 2.
7

between the formation of a general custom and regional one. General custom has an assumption
that the nation-state has acquiesced or agreed to it, unless the nation-state objects to the
formation of that custom. Regionally, silence equals a rejection. Essentially the ICJ has set out
harder rules for regional custom, since a world which is fractured into regional variations may
not be appealing, even though this may be the case in numerous instances.
A critic may further argue that although there is a possibility that regional custom may exist in
international law, suggesting that this may equate to the existence of a regional jus cogens is far-
fetched. Whereas customary international law, even the regional kind, derives solely from the
consent of nation-states, norms of jus cogens usually transcend such consent. Thus, the
existence of regional jus cogens is difficult to establish. To this, one may rebut that a jus cogens
norm that transcends consent is the universal in-itself kind. Regional jus cogens are not
concerned with this type, as pointed out. Its primary attention lies with the practical position,
which is quite compatible with the logic of regional custom. That is, there are norms which have
been intentionally and overtly elevated to super-norms by a regional group of states; to serve
certain political tasks within a specific temporal context.

Treaty Arrangements
The formation of treaty arrangements can also serve to highlight a regionalization of
international law. In fact, during the course of drafting articles on the Law of Treaties, the ILC
Special Rapporteurs Waldock First Report went as far as to suggest dividing multilateral treaties
into two categories: those which concern a few States only (plurilateral treaties) and those which
are of interest to all States (multilateral treaties.)
24
When it comes to treaty-making, a tacit and
somewhat overt understanding exists in the international community that all nation-states will
not agree upon certain principles due to regional realities. This becomes quite evident when
looking at the idea of reservations for selected international treaties.
The concept of reservations, codified in article 2 of the 1969 VCLT
25
, plays a key role in
reinforcing the idea of regional realities taking some precedence. Reservations effectively occur
when nation-states accept as many of the rights and obligations under a treaty as possible, while
expressly stating that they cannot accept certain provisions of the treaty. Put in inferential terms,
without the concept of reservations, an international society of nation-states comprised of various
socio-political, economic, development and legal interests will not be able to agree upon an
effective treaty.
Reservations can even plausibly allow nation-states to bypass certain key elements of a treaty,
thereby allowing a regionalization of obligations to a particular treaty. Even though Article
19(c) of the 1969 VCLT attempted to curb this procedure stipulating that if the reservation
contradicts the purpose and object of the treaty, then the reservation is void many nation-states
appear to be able to waive this requirement in practice, especially in terms of human rights
treaties. The United Nations Human Rights Commission, the monitoring body of the
International Covenant on Civil and Political Rights (ICCPR), in its General Comments 24 stated
that:


24
Sir Humphrey Waldock (Special Rapporteur), Document A/CN.4/144: First Report on the
Law of Treaties, in the International Law Commission, Yearbook of the ILC (1962), pp. 27-79.
25
Vienna Convention on the Law of Treaties 1155 UNTS 331 (1969).

Hasmath, R. (2012) The Utility of Regional Jus Cogens, Paper Presented at American Political Science
Association Annual Meeting (New Orleans, USA), August 30-September 2.
8

the Committee believes that its provisions on the role of State objections in relation to
reservations are inappropriate to address the problem of reservations to human rights treaties.
Such treaties, and the Covenant specifically, are not a web of inter-State exchanges of mutual
obligations.
26


This is certainly not the accepted view of certain nation-states in regards to the ICCPR. France,
Libya, the United States and the United Kingdom have all argued that their reservations in
human rights treaties are an essential part of a States consent to be bound by a particular
treaty.
27
Embedded in their statements is an understanding that regional realities must be
factored before assenting to a human rights treaty.
So, the regionalisation of international law is not a new concept. Although the international
community seeks a uniform and constant practice, the actual scenario is quite different. This is
especially evident when viewing the formation of regional custom(s) and the role of reservations
in treaty making. In the next section the focus will shift to identifying cases of regional jus
cogens practice in action.

REGIONAL JUS COGENS IN PRACTICE

Brezhnev Doctrine
During the Cold War, particular Socialist ideals were seen as distinct to the rest of the world.
This logic also extended to international law, accordingly delineating a powerful regional legal
order. A classic case in point was the adoption of Brezhnev Doctrine, referring to the right and
duty of any Socialist nation-state to come to the fraternal assistance of any other Socialist nation,
in the event of a threat to Communist rule. It was famously invoked in Czechoslovakia in
August 1968 by the Soviet Union, along with other Socialist nation-states. As Soviet leader,
Leonid Brezhnev articulated in a speech made in November 1968 at the Fifth Congress of the
Polish United Workers' Party:

the correlation and interdependence of the national interests of the Socialist countries and
their international duties [is of] acute importance. The measures taken by the Soviet Union,
jointly with other Socialist countries, in defending the Socialist gains of the Czechoslovak
people are of great significance for strengthening the Socialist community, which is the main
achievement of the international working class.
28


Prior to Brezhnevs speech, arguments had been made stating that the actions of certain Socialist
nations ran counter to the principle of sovereignty and self-determination. Brezhnevs response
to this critique was that such reasoning was groundless, based on an abstract, non-class approach
to these principles. His logic was that the people of Socialist nations have the freedom to
determine ways of advancing their respective nation. A condition does apply in that the
decisions they make must not damage either Socialism in their country or the fundamental

26
International Covenant on Civil and Political Rights (ICCPR), in its General Comments 24
(1994), para. 17.
27
Dixon, Cases and Materials, p. 83.
28
Leonid Brezhnev, Polish United Workers Congress Speech (1968). Available at:
http://www.cnn.com/SPECIALS/cold.war/episodes/14/documents/doctrine/
Hasmath, R. (2012) The Utility of Regional Jus Cogens, Paper Presented at American Political Science
Association Annual Meeting (New Orleans, USA), August 30-September 2.
9

interests of other Socialist countries, and the whole working class movement, which is working
for Socialism.
29
In short, the sovereignty and self-determination of each Socialist nation-state
cannot stand in opposition to the interests of Socialism more generally.
Ultimately, this also infers that each Socialist nation-state is responsible for its own people,
along with those of other Socialist nations. Herein lies the Socialist international duty. In his
November 1968 speech, Brezhnev quoted Lenin, when he argued:

a man living in a society cannot be free from the society, one or another Socialist state,
staying in a system of other States composing the Socialist community, cannot be free from
the common interests of that community.
30


This thinking lead Grigory Tunkin to declare the Brezhnev Doctrine, which he called
proletarian internationalism, a norm of jus cogens.
31
In present day terms, this can be
classified as a norm of regional jus cogens, predominantly applicable to Socialist nation-states.
The Cold War represented a struggle and co-operation of states of the two opposing social and
legal systems.
32
Socialist nation-states were intricately interdependent upon each other, hence
the utility and justification for the existence of a norm of regional jus cogens in the form of the
Brezhnev Doctrine. Again, the words of Leonid Brezhnev from his infamous 1968 speech
are informative in this manner:

From a Marxist point of view, the norms of law cannot be interpreted narrowly, formally,
and in isolation from the general context of class struggle in the modern world This is an
objective struggle, a fact not depending on the will of the people, and stipulated by the world's
being split into two opposite social systems. Lenin said: Each man must choose between
joining our side or the other side. Any attempt to avoid taking sides in this issue must end in
fiasco.
33


Not everyone was convinced about the usefulness of this particular regional jus cogens norm.
Anthony DAmato professed certain reservations about the Brezhnev Doctrine serving as
regional super-norm.
34
At the time, he posed this thought-experiment: Assume that the leader of
the USSR decides to repel the Doctrine, would it be illegal to retract it? What good is a super-
norm if a head of state can retract it at will? DAmato raised interesting questions, with the
unfolding of history acting as the guide to his answers. That regional jus cogens norms are
useful within a specific time- period must be emphasised. As noted earlier, they can be replaced
by another super-norm, or eliminated altogether. In this case, with the collapse of the Soviet
Union and the demise of the Socialist bloc, the usefulness of the Brezhnev Doctrine ceased. As

29
Ibid.
30
Ibid.
31
Grigory Tunkin, A Theory of International Law (Cambridge, MA: Harvard University Press,
1974), p. 4.
32
Grigory Tunkin, Co-Existence and International Law, Recueil des Cours, 95:1 (1958).
33
Brezhnev, Polish United Workers Congress Speech.
34
Anthony DAmato, It's a Bird, It's a Plane, It's Jus Cogens!, Connecticut Journal of
International Law, 6:1 (1991).
Hasmath, R. (2012) The Utility of Regional Jus Cogens, Paper Presented at American Political Science
Association Annual Meeting (New Orleans, USA), August 30-September 2.
10

Tunkin himself remarked, imperative principles obviously are not immutable.
35

The Brezhnev Doctrine can be seen as a recent historical example of regional jus cogens norm
in action. It reinforces the idea that regional jus cogens norms can serve a practical purpose
within a specific time-period.

Juvenile Executions
Certain human rights principles can be interpreted as regional jus cogens norms, with the
prohibition on juvenile executions of notable interest. Its evolution, from becoming an accepted
norm of regional jus cogens in the Organization of American States (OAS), to an international
jus cogens norm appropriated from the Domingues judgment, can be tracked. Provisions against
juvenile executions are demonstrative of the practical utility of a norm of regional jus cogens in
certain, specific situations. There are instances, including this case during the 1980s, where the
international community of nation-states cannot readily agree upon the merit and/or specifics of
an international jus cogens norm. Subsequently, a regional jus cogens norm may emerge to suit
a practical position. Prohibitions on juvenile executions operate as a reference for a regional
group of nation-states to enact what they deem as higher law in lieu with a regional socio-
political belief structure surrounding juvenile executions. A norm of regional jus cogens can
also serve as a quasi-starting reference point, denoting legal arguments in favour or its opposite,
for an international jus cogens norm.
In 1987, the Inter-American Commission on Human Rights held that the execution of children
violated a regional jus cogens norm.
36
The Commission found that in the member-states of the
OAS there was a recognised norm of jus cogens, whereby the prohibition of state executions of
children was apparent. The United States government had reaffirmed this stance by stating, all
[American] states have juvenile justice systems; none permits its juvenile courts to impose the
death penalty.
37
At the time of writing, the United Nations Commission on Human Rights
Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions took the
position that the implementation of the death penalty against juvenile offenders was a per se
violation of an evolving international jus cogens norm.
38
In other words, this norm was not
universally fixed within the international legal system, but was slowly gathering momentum. In
the interim, it effectively enjoyed the status of a regional jus cogens norm in OAS member states.
It was only until the Domingues judgment in late 2002 that the Inter-American Commission
on Human Rights spelled out an overt recognition of juvenile executions as an international jus
cogens norm.
39
The Commission argued Michael Domingues, a U.S. citizen, sentenced to the
death penalty for crimes committed in 1993 when he was 16 years old, violated an international
norm of jus cogens. The Commission wrote:


35
Tunkin, A Theory, p. 125.
36
See Roach and Pinkerton v. United States, Res. No. 3/87, Case 9647, Inter-American
Commission on Human Rights, OES/Ser.L/V/II/71, doc. 9, rev.1 (1987).
37
Ibid.
38
United Nations Commission on Human Rights Report of the Special Rapporteur on
Extrajudicial, Summary or Arbitrary Executions, E/CN.4/1998/68/Add.4 (2002), para. 49.
39
Michael Domingues v. United States, Case 12.285, Inter-American Commission on Human
Rights, Report No. 62/02 (2002).

Hasmath, R. (2012) The Utility of Regional Jus Cogens, Paper Presented at American Political Science
Association Annual Meeting (New Orleans, USA), August 30-September 2.
11

A norm of international customary law has emerged prohibiting the execution of offenders
under the age of 18 years at the time of their crime this rule has been recognized as being
of a sufficiently indelible nature to now constitute a norm of jus cogens.
40


In effect, the prohibition of juvenile executions had moved from a norm of regional jus cogens in
the Americas to an accepted international jus cogens norm after the Domingues judgement.
Caution must be strongly expressed not to confuse the underlying thinking here with
arguments that all human rights could follow this path, and/or fit the billing of international or
regional jus cogens norms. What has been demonstrated is that certain human rights-oriented
judicial decisions, with the case of juvenile executions as one example, illustrate that regional jus
cogens can and have existed in public international law. Moreover, it is quite plausible to have a
movement from a regional to an international jus cogens norm, further testifying to the practical
utility of regional jus cogens. Additional evidence of this idea will be presented when looking at
the human rights practices of Islamic nation-states as a potential candidate for satisfying regional
jus cogens norms.

Islamic States Human Rights Practice
For some theorists, international human rights legal doctrines are, in large part, a product of
the European States system and J udeo-Christian tradition.
41
The line of thinking thus follows
that international jus cogens norms on human rights, for the most part, reflect European world-
views and experiences. In spite of this strain of thought, Islamic nation-states have long asserted
that they are bound by shared regional institutions, laws and norms. When speaking of human
rights, Islamic nation-states often take the stance that international human rights legal doctrines
cannot be compared with the duties rights and freedoms sanctioned by Allah (God.) This has led
to the creation of the 54-member states Organization of Islamic Conference (OIC) backed by the
1981 Universal Islamic Declaration on Human Rights based on the Quran and the Sunnah.
42

Later developments which followed suit include the OICs 1990 Cairo Declaration on Human
Rights in Islam
43
and the Council of the League of Arab States 1994 Arab Charter on Human
Rights
44
. The underlying belief in these declarations is summarised in the Universal Islamic
Declaration of Human Rights that Allah, and Allah alone, is the Law Giver and the Source of all
human rights.
45
In short, regional jus cogens norms on human rights enjoy widespread practice
in OIC nation-states, reflecting the rights and freedoms contained in Islamic jurisprudence.
Interestingly, regional jus cogens norms in OIC nation-states are legitimised substantially
through natural laws. As pointed out earlier, legal positivists have critiqued such jus cogens

40
Ibid., para. 84-85.
41
Ramesh Thakur, Global Norms and International Humanitarian Law: An Asian
Perspective, International Review of the Red Cross, No. 841 (2001), p. 19.
42
Universal Islamic Declaration of Human Rights, 19 September 1981. Available at:
http://www.alhewar.com/ISLAMDECL.html
43
Cairo Declaration on Human Rights in Islam, 5 August 1990. Available at:
www.humanrights.harvard.edu/documents/regionaldocs/cairo_dec.htm
44
Council of the League of Arab States, Arab Charter on Human Rights, 15 September 1994,
Human Rights Law Journal, 18:151 (1997).
45
Universal Islamic Declaration of Human Rights, supra note 38, Foreword.

Hasmath, R. (2012) The Utility of Regional Jus Cogens, Paper Presented at American Political Science
Association Annual Meeting (New Orleans, USA), August 30-September 2.
12

norms as illogical, failing to incorporate changing social facts. Notwithstanding, this does not
undermine the notion that regional jus cogens norms found in OIC nation-states serve a practical
position. The existence of a regional jus cogens reinforces the positioning of Islam as a source of
law and authority in OIC nation-states. As Article 25 of the Cairo Declaration asserted, Islamic
Shariah is the only source of reference for the explanation or clarification of human rights.
46

This sharply differs from the 1948 United Nations Universal Declaration of Human Rights
which prominently stated that it, does not refer to any religion or the superiority of any group
over another, but stresses the equality of all human beings.
47
At the surface level, this does not
necessarily make Islamic regional jus cogens norms on human rights less effective than
Universal Declarations rights. Bernhard Trautner pointed out:

the UN Declaration makes the violation of human rights a more or less theoretical offence by
states against their citizens. The OIC Declaration makes human rights violations an
immediate individual responsibility and it elevates them to the level of an abominable sin.
48


In fact, if one looks at the historical evolution of Universal Declaration of Human Rights, it
would be wrong to regard its founding as adhering to positive law. The Universal Declaration
qualifies its own foundation by declaring such international jus cogens norms on human rights as
inalienable. It thereby, conceals its historical and substantial roots both in natural law from
antiquity to Kant
49
and in J udeo-Christian teachings. Conversely, the OIC Declaration does not
conceal its philosophical basis. It is important to note, that the Universal Declaration was not the
endpoint, but rather a starting point for the development of contemporary human rights today.
A regional jus cogens norms on human rights can serve a similar practical function, as we
have seen in the juvenile executions human rights case above. It can serve to assist in the
dialogue on the merits of an international jus cogens norm within modern day socio-political
realities. For the time being, OIC regional jus cogens norms on human rights will continue to
exist, whilst there remains a wide-gap between the social and political rooting of mainstream
international human rights law based on J udeo-Christian and Islamic underpinnings. This
present day reality may come with the consequence of perpetuating sovereign inequality and
promoting differential treatment in the international system.

EFFECTS OF REGIONAL JUS COGENS

Sovereign Inequality
The principle of sovereign equality is of grave importance to the international community of
nation-states. In fact, Article 2(1) of the United Nations Charter reinforces this point, stating
the Organization is based on the principle of the sovereign equality of all its Members.
50
In

46
Cairo Declaration on Human Rights in Islam.
47
United Nations Declaration of Human Rights, G.A. Res. 217 A (III), UN Doc A/810
(1948).
48
Bernhard Trautner, The Cairo Declaration on Human Rights in Islam, Conference on Islam
and Human Rights, 15-17 March 1999, p. 14.
49
See Evan Criddle and Evan Fox-Decent, A Fiduciary Theory of J us Cogens, Yale Journal of
International Law, 34:331 (2009).
50
United Nations Charter 1945, UNTS vol.1 (1947).
Hasmath, R. (2012) The Utility of Regional Jus Cogens, Paper Presented at American Political Science
Association Annual Meeting (New Orleans, USA), August 30-September 2.
13

essence, all nation-states have equal rights and duties, and are equal members of the international
community, despite differences of an economic, social, political, development or other nature. In
particular, sovereign equality includes the respect of the personality of other nation-states,
whereby each State has the duty to comply fully and in good faith with its international
obligations and to live in peace with other nation-states.
51
International jus cogens norms are
congruent with this idea of sovereign equality. Before the international community of nation-
states, international jus cogens norms are universally applicable to all nation-states, whether
willing or not.
Stated differently, international jus cogens norms correspond to a formal equality of
international law. It postulates that all subjects of the law should be treated in a similar
fashion.
52
Rules are usually deemed to be just if they apply to all without discrimination.
International jus cogens norms such as prohibitions against genocide are applicable to all nation-
states, irrespective of any objections. In contrast, the practice of employing regional jus cogens
norms may be at a cost of violating the principle of sovereign equality, and the promotion of
formal equality in international law. Legally, all nation-states will not be truly equal in terms of
their rights and obligations in the international system. Certain nation-states will have to abide
by a set of regional jus cogens norms, whereas others do not.
This is not necessarily a terrible matter of affairs in light of considerations of promoting
substantive equality, i.e. looking at a rules results or effects in deeming its equality value.
53

Since the international system is built on the rule of sovereign equality, in which the weak and
strong are treated equally in international law, one may posit that the least favoured nation will
continue to be relatively disadvantaged. Thus, the equality of international legal rights does not
necessarily bring forth equality of outcomes, especially in an international society of states
characterized by a disparity of resources and capabilities. The international legal system is
premised on the desire to bring stability and coherence to nation-states relations with each other.
It does not however follow that rules should apply uniformly to all states. There are different
factors and circumstances that may arise which prevent adhering to a strict reliance on the
principle of sovereign equality and in kind, practicing formal equality. Norms of regional jus
cogens can be one of these factors since it can be intimately embedded in the promotion of
differential treatment.

Differential Treatment
The concept of differential treatment refers to instances where the principle of strict sovereign
equality is sidelined to accommodate extraneous factors.
54
Given an international environment
that supposes the rule of international law applies to all nation-states without discrimination,
differential treatment is about creating distinct categories to achieve a goal that an adherence to
formal sovereign equality cannot reach in many cases. At core, differential treatment calls for
positive discrimination in favour of a given nation-state or a group of nation-states. Herein lies

51
G.A. Res. 2625 (XXV), 25 UN GAOR Supp No. 28, UN DOC. A/8028 (1970).
52
Phillipe Cullet, Differential Treatment in International Law: Towards a New Paradigm of
Inter-State Relations, European Journal of International Law, 10:549 (1999), p. 549.
53
Dawn Nunziato, Equality: States as Laboratories, Virginia Law Review 80:945 (1994), p.
945.
54
Cullet, Differential Treatment, p. 551.

Hasmath, R. (2012) The Utility of Regional Jus Cogens, Paper Presented at American Political Science
Association Annual Meeting (New Orleans, USA), August 30-September 2.
14

another utility of regional jus cogens norms. It can potentially create equitable results within the
existing international legal system by fostering substantive equality in the international
community of nation-states.
In practice, regional jus cogens norms such as Islamic human rights fit the billing of
differential treatment in action. It calls for different human rights commitments for Islamic
nation-states in order to best reflect Islamic nations social and political codes. The concept of
justice and equality echoed here is best summarized by J udge Tanaka, in his dissenting opinion
in the South West Africa case. He wrote:

the principle of equality before the law does not mean absolute equality but it means
relative equality, namely the principle to treat equally what are equal and unequally what are
unequal To treat unequal matters differently according to their inequality is not only
permitted but required.
55


J udge Tanaka statements testify to the notion that formal sovereign equality of nation-states is a
basic principle of international law, but one which is not absolute by any stretch of the
imagination. Such logic can allow for a regional jus cogens norms such as Islamic human rights
to be a recognizable, regional, legal principle.
In an international community of nation-states characterised by the idea that all states are not
procedurally on equal footing, differential treatment is rightfully needed. Regional jus cogens
norms are just one manifestation of the application of differential treatment.

ARE REGIONAL JUS COGENS NORMS NEEDED TODAY?

In an international community of ever increasing heterogeneity, regional jus cogens are a
needed concept that ought to be considered for selected implementation. Yet, a critic will
adamantly argue that a divided application of international law to various nation-states serves the
opposite end-goal of international law by fragmentation and division of the international
community of nation-states. Therefore, such an approach is deemed unnecessary and/or
undesirable, as the ICJ has adamantly suggested in its rulings on regional custom. There is
certainly merit to this stance. One can easily suppose an instance where nation-states are equally
divided into two groups of roughly equal size, with one group following one regional jus cogens
norm and the other following another regional jus cogens norm. If a dispute arises, between a
State in the first group and a State in the second group, then which norm will supersede? Will
either group be bound to the regional jus cogens norm of the other group? This is certainly not a
new problem. Grotius, writing in the 1600s, was acutely aware of this possibility, as he stated:

The law of nations ... has received its obligatory force from the will of all nations, or of many
nations. I added of many nations for the reason that there is hardly any law common to
all nations. Not infrequently in fact, in one part of the world there is a law of nations, which
is not such elsewhere.
56


In a heterogeneous international community, pale in comparison to the times of Grotius, different

55
South West Africa Cases: Second Phase.
56
Quoted in Akehurst, Custom, p. 30.
Hasmath, R. (2012) The Utility of Regional Jus Cogens, Paper Presented at American Political Science
Association Annual Meeting (New Orleans, USA), August 30-September 2.
15

States will have different views about managing their relations with others States. The
realization of regional jus cogens norms may provide a resolution to social, economic and
political problems which might otherwise be almost insoluble. If one rule applies among one
half of the international community and another rule applies among the other half, disputes
between States in the first group can be settled by applying the second rule. This can be more
satisfactory than trying to find an international jus cogens norm in many instances.
But this still does not solve the dilemma posed earlier. If indeed a dispute does arise between
States from the first group and the second, what is to be done? The solution may be three-fold.
As Tunkin suggested in his Theory of International Law, an admission that there are gaps in
international law is permissible and potentially essential.
57
Another possibility is to return to an
older rule, prior to the realization of a regional jus cogens norm by both groups. This tactic may
not be acceptable to both sides, as it may involve applying an outdated rule to which neither
group of States subscribes to in its present form. A third option involves having both groups take
into consideration the underlying thinking and background for the existence of both regional jus
cogens norms, and progressing to seek a satisfactory dialectical compromise in the form of an
international jus cogens norm. Of course, this requires careful empathy, deliberative discussion,
and a recognition and acknowledgement of differences by both groups. Although the most
satisfactory route if executed properly, the option to compromise is often the less travelled path.
In spite of these difficulties, the contemporary utility of applying a regional jus cogens norm
should not be forgotten. In order to promote substantive equality and differential treatment,
regional jus cogens norms are a much needed concept that ought to be recognized for selected
implementation.

CONCLUSION

Modern international law has developed to the point where it has placed the principle of jus
cogens as an important doctrine. This article suggests a regional set of legal norms and values
can exist, and play a crucial role in establishing a norm of regional jus cogens. International law
has a tradition, albeit a limited one, of accepting regional legal interpretations. The Brezhnev
Doctrine, juvenile execution cases in the Americas, and human rights norms in Islamic nation-
states all illustrate that the litmus test for the existence of regional jus cogens has been passed.
They demonstrate that a regional group of nation-states can establish and implement a general
and consistent practice, reconstituted as a norm of regional jus cogens. Moreover, they reinforce
the idea that regional jus cogens norms have a practical, intrinsic purpose to assist in
accomplishing certain social and political tasks that are acceptable to a group of nation-states in a
specific time period. Regional jus cogens can be replaced by another super-norm or eliminated
entirely by the passing of their usefulness. Their existence is very much a product of as well as
in line with the positivist account.
Nevertheless, the existence of regional jus cogens norms through the promotion of regional
divisions and variations in international law is an affront to our current sensibilities. Even so, in
a modern-day international community whereby nation-states are characterised by unprecedented
heterogeneity, norms of regional jus cogens are demanded in limited situations; in the hopes of
promoting substantive equality and differential treatment, in spite of perpetuating greater

57
Tunkin, A Theory, p. 125.

Hasmath, R. (2012) The Utility of Regional Jus Cogens, Paper Presented at American Political Science
Association Annual Meeting (New Orleans, USA), August 30-September 2.
16

sovereign inequality. Denying a regional group of nation-states their collective legal thought
embodied as a regional jus cogens only invites the maintenance of privileged perspectives. This
should be an affront to our sensibilities.