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3/11/2019
Nasif Mustahid & Sabyasachi Bhattacharjee BA.LLB(H) SEMESTER VIII
ACKNOWLEDGEMENT We would like to express our special thanks of gratitude to our Public International Law teacher, Mr. Souvik Mukherjee, who gave us the golden opportunity to work on the topic: “Law of Treaties & the concept of Jus Cogens”. We came to know about so many new things and we are really thankful for it. Secondly, we would like to thank our friends who have helped us a lot in finalizing this project within the limited time frame.
1|P a g e
INTRODUCTION Treaties are the principal source of Public International Law. The Vienna Convention on the Law of Treaties defines a ‘treaty’ as ‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation’ (Article 2(1)(a)). A treaty is an agreement between sovereign States (countries) and in some cases international organisations, which is binding at international law. An agreement between an Australian State or Territory and a foreign Government will not, therefore, be a treaty. An agreement between two or more States will not be a treaty unless those countries intend the document to be binding at international law. Treaties can be bilateral (between two States) or multilateral (between three or more States). Treaties can also include the creation of rights for individuals. Treaties are commonly called 'agreements', 'conventions', `protocols' or `covenants’, and less commonly `exchanges of letters'. Frequently, declarations are adopted by the UN General Assembly. Declarations are not treaties, as they are not intended to be binding, but they may be part of a process that leads ultimately to the negotiation of a UN treaty. Declarations may also be used to assist in the interpretation of treaties.
2|P a g e
The Vienna Convention on the Law of Treaties Vienna Convention on the Law of Treaties, an international agreement governing treaties between states that was drafted by the International Law Commission of the United Nations and adopted on May 23, 1969, and that entered into force on January 27, 1980. A convention governing international treaties was one of the first efforts undertaken by the International Law Commission, and James Brierly was assigned as special rapporteur in 1949 to address the subject. After his resignation in 1952, each of his successors began the work anew. Sir Humphrey Waldock, appointed in 1961, produced six reports from which the commission was able to create a draft to submit to the UN General Assembly in 1966 with a recommendation that a conference be convened to conclude a convention based on the draft. The conference held its first meeting in 1968, and the convention was adopted at its second session the following year. The convention applies only to written treaties between states. The first part of the document defines the terms and scope of the agreement. The second part lays out the rules for the conclusion and adoption of treaties, including the consent of parties to be bound by treaties and the formulation of reservations—that is, declining to be bound by one or more particular provisions of a treaty while accepting the rest. The third part deals with the application and interpretation of treaties, and the fourth part discusses means of modifying or amending treaties. These parts essentially codify existing customary law. The most important part of the convention, Part V, delineates grounds and rules for invalidating, terminating, or suspending treaties and includes a provision granting the International Court of Justice jurisdiction in the event of disputes arising 3|P a g e
from the application of those rules. The final parts discuss the effects on treaties of changes of government within a state, alterations in consular relations between states, and the outbreak of hostilities between states as well as the rules for depositaries, registration, and ratification. It was necessary for 35 member states of the United Nations to ratify the treaty before it could go into effect. Although it took until 1979 to secure those ratifications, more than half of the UN members had agreed to the convention by early 2018. Even those members that had not ratified the document, such as the United States, generally followed the prescriptions of the agreement. The Vienna Convention on the Law of Treaties of 1969 (VCLT) is the main instrument that regulates treaties. It defines a treaty and relates to how treaties are made, amended, interpreted, how they operate and are terminated. It does not aim to create specific substantive rights or obligations for parties – this is left to the specific treaty (i.e. the Vienna Convention on Diplomatic Relations creates rights and obligations for States in their diplomatic relations). VCLT governs treaties irrespective of its subject matter or objectives – e.g.: treaties to regulate conduct of hostilities (Geneva Conventions on 1949); treaties setting up an international organisation (UN Charter of 1945); and treaties regulating matters between States and other parties on the law of the sea (UN Convention on the Law of the Sea of 1982). VCLT is a “treaty on treaties”.
4|P a g e
CONCEPT OF JUS COGENS The rules of jus cogens (also known as peremptory norm) are derived from the customary international law, and it is a rule or principle which is so fundamental that it binds all states and does not allow any exceptions. They are ‘accepted and recognized by the international community of States as a whole which can be modified only by a subsequent norm of general international law having the same character’. Article 53 of the Vienna Convention on the Law of Treaties (VCLT)1969 states that, ‘a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law’. Article 64 of the VCLT 1969 further enhances its importance by giving it retrospective effect – existing treaty which is in conflict becomes void and is terminated. On the same note, natural law also played a prominent role in the development of jus cogens in international law. However, Hasmath stated that it places foundations of jus cogens on shaky grounds, as jus cogens norms are essentially a social construction. The concept of jus cogens was said to be popularised by Verdross. He defined it as the ‘ethical minimum recognized by all the states of the international community’, which includes the obligation to undertake certain ‘moral task’, such as ‘maintenance of law and order within states, defense against external attacks, care for the bodily and spiritual welfare of citizens at home, and protection of citizens abroad’. It, as pointed out by Lauterpacht, also operates as a concept superior to both customary international law and treaty. Although this concept is important, the International Law Commission remarked that ‘there is no simple criterion by which to identify a general rule of international law as having the character of jus cogens’. 5|P a g e
Also, as noted by Yasseen, a State or a minority number of States which refuse to accept the peremptory character of the rule, the acceptance and recognition as jus cogens by all other States would not be affected, because a mere majority would suffice, and the minority States will not be able to opt out for long as they will loss certain privileges. Nevertheless, the rules of jus cogens have several important elements in the international legal context. Special Rapporteur R. Ago stated that, the rules of jus cogens which made of norms laying down international obligation ‘so essential for the protection of fundamental interest of the international community that their breach was recognized as a crime by that community as a whole’ (emphasis added), and it has now been crystallised in Article 40 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts 2001. The use of force against the other territory was held by the International Court of Justice in Nicaragua v USA as wrongful act under the jus cogens rules. Slave trade, genocide, racial discrimination and apartheid are also categorised as wrongful acts within the contemporary of jus cogens rules.
Moreover, as noted by Cassese, jus cogens has meta-legal effect, where he cited the case of Prosecutor v Anto Furundzija, which, the court ruled that jus cogens has a ‘deterrent effect, in that it signals to all members of the international community and the individuals over whom they wield authority that the prohibition… is an absolute value from which nobody must deviate’. Also, the Swiss Constitution of 18 April 1999, Article 139(2), states that if the law of nation which violates the international law, the Federal Assembly shall declare it invalid, whether as a whole or in part. 6|P a g e
In addition, it can be said that jus cogens is there to protect and uphold human dignity and rights. Criddle and Fox-Decent stated that the jus cogens rules will trigger the fiduciary principle, where any entity and States that ‘assumes unilateral administrative power over individuals bears a fiduciary obligation to honor the basic demands of dignity, which includes the peremptory norms of international jus cogens’. As mentioned above, any activities or treaties carried out by the States or international organisations which offended human dignity and rights are contrary to the concept of jus cogens, will be considered null and void. Jus cogens has also an effect on the doctrine of state immunity. The general rule is that all States have the immunity from being sued by the others. This can be clearly seen in Al-Adsani v Kuwait, where the claimant brought an action for damages in tort against the Kuwait government, claiming that he has been tortured by the officials of Kuwait. It was held that the government of Kuwait was entitled to immunity from being sued. This has been affirmed by the European Court on Human Rights. But the minority judges in the European Court on Human Rights stated that ‘the jus cogens nature of the prohibition of torture entails that a State allegedly violating it cannot invoke hierarchically lower rules… to avoid the consequences of the illegality of its actions’, and stated that Kuwait could not ‘hide behind the rules on State immunity to avoid proceedings for a serious claim of torture’. Caplan pointed out that state immunity is not jus cogens, it ranks lower in the hierarchy of international law norms, and therefore can be overcome when a jus cogens norm is at stake, so that human rights victims is able to seek legal redress. This can be clearly seen in R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No. 3), the 7|P a g e
House of Lords ruled that when there is an issue of crime against humanity, the State Immunity Act 1978 shall be inferior to the rules of jus cogens. In conclusion, jus cogens rules are derived from the customary international law and natural law. Although jus cogens come with its own sets of problems, it still plays a vital role in international law as discussed above.
8|P a g e
CONCLUSION Nothing seems to be uncontroversial at every mention of jus cogens. Its very existence in the VCLT remains a subject of debate by scholars. Its practical usefulness on the other hand has been burdened by lack of a clear definition, lack of a procedure for its determination and doctrinal weaknesses. The ambiguous nature of jus cogens remains the only positive feature providing an avenue for scholars to baptize any ordinary norm into the category of jus cogens. Even though scholars agree that there exists in the international community a set of norms the violation of which render all treaties void, such norms are not easily identified and in the absence of state practice everything has been left to speculation. With the ICJ taking a peripheral role, scholars have taken centre stage with the hot topic to display their intellectual prowess. Fundamental questions raised remains unanswered for example what is the utility of a norm of Jus cogens, how does the jus cogens norm arise and once it has arisen how the same can be modified. None of the scholars dare to give unchallenged answers to these questions and we await the ICJ in the case before it to clarify the pertinent issues. It is clear that the concept lacks a proper theoretical foundation and it appears to be wavering trying attempts here and there and the absurdity is that it seems to be making commendable progress. We can only fall to arguments by scholars who have finally admitted that its existence is only visionary in the international legal order. Nevertheless jus cogens remains a symbol of fundamental values in the society. This appears in the way it has curved certain crimes as jus cogens and violation of such crimes brings a whole different dimension in the 9|P a g e
international arena. Its vision is greater and it cannot anymore be contained in the VCLTs. It would certainly cause upheavals and destabilize most areas in the international realm. With all the glaring weaknesses attributed to it by scholars if weighed against what jus cogens has achieved or yet to achieve it remains an enigma in international law.
10 | P a g e
BIBLIOGRAPHY All Answers ltd, 'nature and the importance of jus cogens rules' (Lawteacher.net, March 2019) accessed 10 March 2019 Vincent Robi, ' A critical analysis of the scope and application of jus cogens' ( academia.edu) < https://www.academia.edu/4382796/A_critical_analysis_ of_the_scope_and_application_of_jus_cogens> accessed 10 March 2019 Kamrul Hossain, ' The Concept of Jus Cogens and the Obligation Under The U.N. Charter' ( digitalcommons.law.scu.edu 1-1-2005) < https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi? article=1011&context=scujil> accessed 10 March 2019 Article 53 - Treaties conflicting with a peremptory norm of general international law (jus cogens)' ( www.jus.uio.no ) < https://www.jus.uio.no/lm/un.law.of.treaties.convention. 1969/53.html> accessed 10 March 2019 Ulf Linderfalk, ' The Creation of Jus Cogens – Making Sense of Article 53 of the Vienna Convention' ( http://www.zaoerv.de 2011) < http://www.zaoerv.de/71_2011/71_2011_2_a_359_378. pdf> accessed 10 March 2019 11 | P a g e
12 | P a g e
Nasif Mustahid & Sabyasachi Bhattacharjee BA.LLB(H) SEMESTER VIII
ACKNOWLEDGEMENT We would like to express our special thanks of gratitude to our Public International Law teacher, Mr. Souvik Mukherjee, who gave us the golden opportunity to work on the topic: “Law of Treaties & the concept of Jus Cogens”. We came to know about so many new things and we are really thankful for it. Secondly, we would like to thank our friends who have helped us a lot in finalizing this project within the limited time frame.
1|P a g e
INTRODUCTION Treaties are the principal source of Public International Law. The Vienna Convention on the Law of Treaties defines a ‘treaty’ as ‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation’ (Article 2(1)(a)). A treaty is an agreement between sovereign States (countries) and in some cases international organisations, which is binding at international law. An agreement between an Australian State or Territory and a foreign Government will not, therefore, be a treaty. An agreement between two or more States will not be a treaty unless those countries intend the document to be binding at international law. Treaties can be bilateral (between two States) or multilateral (between three or more States). Treaties can also include the creation of rights for individuals. Treaties are commonly called 'agreements', 'conventions', `protocols' or `covenants’, and less commonly `exchanges of letters'. Frequently, declarations are adopted by the UN General Assembly. Declarations are not treaties, as they are not intended to be binding, but they may be part of a process that leads ultimately to the negotiation of a UN treaty. Declarations may also be used to assist in the interpretation of treaties.
2|P a g e
The Vienna Convention on the Law of Treaties Vienna Convention on the Law of Treaties, an international agreement governing treaties between states that was drafted by the International Law Commission of the United Nations and adopted on May 23, 1969, and that entered into force on January 27, 1980. A convention governing international treaties was one of the first efforts undertaken by the International Law Commission, and James Brierly was assigned as special rapporteur in 1949 to address the subject. After his resignation in 1952, each of his successors began the work anew. Sir Humphrey Waldock, appointed in 1961, produced six reports from which the commission was able to create a draft to submit to the UN General Assembly in 1966 with a recommendation that a conference be convened to conclude a convention based on the draft. The conference held its first meeting in 1968, and the convention was adopted at its second session the following year. The convention applies only to written treaties between states. The first part of the document defines the terms and scope of the agreement. The second part lays out the rules for the conclusion and adoption of treaties, including the consent of parties to be bound by treaties and the formulation of reservations—that is, declining to be bound by one or more particular provisions of a treaty while accepting the rest. The third part deals with the application and interpretation of treaties, and the fourth part discusses means of modifying or amending treaties. These parts essentially codify existing customary law. The most important part of the convention, Part V, delineates grounds and rules for invalidating, terminating, or suspending treaties and includes a provision granting the International Court of Justice jurisdiction in the event of disputes arising 3|P a g e
from the application of those rules. The final parts discuss the effects on treaties of changes of government within a state, alterations in consular relations between states, and the outbreak of hostilities between states as well as the rules for depositaries, registration, and ratification. It was necessary for 35 member states of the United Nations to ratify the treaty before it could go into effect. Although it took until 1979 to secure those ratifications, more than half of the UN members had agreed to the convention by early 2018. Even those members that had not ratified the document, such as the United States, generally followed the prescriptions of the agreement. The Vienna Convention on the Law of Treaties of 1969 (VCLT) is the main instrument that regulates treaties. It defines a treaty and relates to how treaties are made, amended, interpreted, how they operate and are terminated. It does not aim to create specific substantive rights or obligations for parties – this is left to the specific treaty (i.e. the Vienna Convention on Diplomatic Relations creates rights and obligations for States in their diplomatic relations). VCLT governs treaties irrespective of its subject matter or objectives – e.g.: treaties to regulate conduct of hostilities (Geneva Conventions on 1949); treaties setting up an international organisation (UN Charter of 1945); and treaties regulating matters between States and other parties on the law of the sea (UN Convention on the Law of the Sea of 1982). VCLT is a “treaty on treaties”.
4|P a g e
CONCEPT OF JUS COGENS The rules of jus cogens (also known as peremptory norm) are derived from the customary international law, and it is a rule or principle which is so fundamental that it binds all states and does not allow any exceptions. They are ‘accepted and recognized by the international community of States as a whole which can be modified only by a subsequent norm of general international law having the same character’. Article 53 of the Vienna Convention on the Law of Treaties (VCLT)1969 states that, ‘a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law’. Article 64 of the VCLT 1969 further enhances its importance by giving it retrospective effect – existing treaty which is in conflict becomes void and is terminated. On the same note, natural law also played a prominent role in the development of jus cogens in international law. However, Hasmath stated that it places foundations of jus cogens on shaky grounds, as jus cogens norms are essentially a social construction. The concept of jus cogens was said to be popularised by Verdross. He defined it as the ‘ethical minimum recognized by all the states of the international community’, which includes the obligation to undertake certain ‘moral task’, such as ‘maintenance of law and order within states, defense against external attacks, care for the bodily and spiritual welfare of citizens at home, and protection of citizens abroad’. It, as pointed out by Lauterpacht, also operates as a concept superior to both customary international law and treaty. Although this concept is important, the International Law Commission remarked that ‘there is no simple criterion by which to identify a general rule of international law as having the character of jus cogens’. 5|P a g e
Also, as noted by Yasseen, a State or a minority number of States which refuse to accept the peremptory character of the rule, the acceptance and recognition as jus cogens by all other States would not be affected, because a mere majority would suffice, and the minority States will not be able to opt out for long as they will loss certain privileges. Nevertheless, the rules of jus cogens have several important elements in the international legal context. Special Rapporteur R. Ago stated that, the rules of jus cogens which made of norms laying down international obligation ‘so essential for the protection of fundamental interest of the international community that their breach was recognized as a crime by that community as a whole’ (emphasis added), and it has now been crystallised in Article 40 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts 2001. The use of force against the other territory was held by the International Court of Justice in Nicaragua v USA as wrongful act under the jus cogens rules. Slave trade, genocide, racial discrimination and apartheid are also categorised as wrongful acts within the contemporary of jus cogens rules.
Moreover, as noted by Cassese, jus cogens has meta-legal effect, where he cited the case of Prosecutor v Anto Furundzija, which, the court ruled that jus cogens has a ‘deterrent effect, in that it signals to all members of the international community and the individuals over whom they wield authority that the prohibition… is an absolute value from which nobody must deviate’. Also, the Swiss Constitution of 18 April 1999, Article 139(2), states that if the law of nation which violates the international law, the Federal Assembly shall declare it invalid, whether as a whole or in part. 6|P a g e
In addition, it can be said that jus cogens is there to protect and uphold human dignity and rights. Criddle and Fox-Decent stated that the jus cogens rules will trigger the fiduciary principle, where any entity and States that ‘assumes unilateral administrative power over individuals bears a fiduciary obligation to honor the basic demands of dignity, which includes the peremptory norms of international jus cogens’. As mentioned above, any activities or treaties carried out by the States or international organisations which offended human dignity and rights are contrary to the concept of jus cogens, will be considered null and void. Jus cogens has also an effect on the doctrine of state immunity. The general rule is that all States have the immunity from being sued by the others. This can be clearly seen in Al-Adsani v Kuwait, where the claimant brought an action for damages in tort against the Kuwait government, claiming that he has been tortured by the officials of Kuwait. It was held that the government of Kuwait was entitled to immunity from being sued. This has been affirmed by the European Court on Human Rights. But the minority judges in the European Court on Human Rights stated that ‘the jus cogens nature of the prohibition of torture entails that a State allegedly violating it cannot invoke hierarchically lower rules… to avoid the consequences of the illegality of its actions’, and stated that Kuwait could not ‘hide behind the rules on State immunity to avoid proceedings for a serious claim of torture’. Caplan pointed out that state immunity is not jus cogens, it ranks lower in the hierarchy of international law norms, and therefore can be overcome when a jus cogens norm is at stake, so that human rights victims is able to seek legal redress. This can be clearly seen in R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No. 3), the 7|P a g e
House of Lords ruled that when there is an issue of crime against humanity, the State Immunity Act 1978 shall be inferior to the rules of jus cogens. In conclusion, jus cogens rules are derived from the customary international law and natural law. Although jus cogens come with its own sets of problems, it still plays a vital role in international law as discussed above.
8|P a g e
CONCLUSION Nothing seems to be uncontroversial at every mention of jus cogens. Its very existence in the VCLT remains a subject of debate by scholars. Its practical usefulness on the other hand has been burdened by lack of a clear definition, lack of a procedure for its determination and doctrinal weaknesses. The ambiguous nature of jus cogens remains the only positive feature providing an avenue for scholars to baptize any ordinary norm into the category of jus cogens. Even though scholars agree that there exists in the international community a set of norms the violation of which render all treaties void, such norms are not easily identified and in the absence of state practice everything has been left to speculation. With the ICJ taking a peripheral role, scholars have taken centre stage with the hot topic to display their intellectual prowess. Fundamental questions raised remains unanswered for example what is the utility of a norm of Jus cogens, how does the jus cogens norm arise and once it has arisen how the same can be modified. None of the scholars dare to give unchallenged answers to these questions and we await the ICJ in the case before it to clarify the pertinent issues. It is clear that the concept lacks a proper theoretical foundation and it appears to be wavering trying attempts here and there and the absurdity is that it seems to be making commendable progress. We can only fall to arguments by scholars who have finally admitted that its existence is only visionary in the international legal order. Nevertheless jus cogens remains a symbol of fundamental values in the society. This appears in the way it has curved certain crimes as jus cogens and violation of such crimes brings a whole different dimension in the 9|P a g e
international arena. Its vision is greater and it cannot anymore be contained in the VCLTs. It would certainly cause upheavals and destabilize most areas in the international realm. With all the glaring weaknesses attributed to it by scholars if weighed against what jus cogens has achieved or yet to achieve it remains an enigma in international law.
10 | P a g e
BIBLIOGRAPHY All Answers ltd, 'nature and the importance of jus cogens rules' (Lawteacher.net, March 2019)
12 | P a g e
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