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Jus Cogens and the Humanization and Fragmentation of International Law

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Netherlands Yearbook of International Law 2015

Part of the book series: Netherlands Yearbook of International Law ((NYIL,volume 46))

Abstract

This editorial explores how two developments—the humanization and fragmentation of international law—permeate all aspects of jus cogens: its foundations, content and consequences. The authors are particularly intrigued by the question of how the unceasing popularity of jus cogens can be reconciled with its limited role in legal practice. It has often been observed that jus cogens owes its proliferation to the increased focus on human rights. This, in turn, has yielded two effects. First, such focus on human rights has triggered greater attention for the enforcement of peremptory norms. Secondly, it has put the responsibility of non-state actors for violation of jus cogens norms on the agenda. It may not be too far-fetched to understand the reticence of states to accept the expansion of jus cogens and its effects against the background of the fear that this will weaken the power of the state, whereas one might argue that the state is rather in need of reinforcement, in view of the manifold challenges it is confronted with. Next to the process of ‘humanization’ of international law, the appeal of jus cogens can be explained from the international lawyer’s desire for a single and coherent system of law, including a more clearly established hierarchy of norms. This aspiration is primarily infused by the concern for ‘fragmentation’ of international law. However, as in the case of humanization, countervailing factors prevent a further expansion of jus cogens in international law. For one thing, jus cogens, belonging to the realm of general international law, is too coarse and inflexible to be of effective use in special sub-fields of international law. A second explanation for the limited role played by jus cogens is that specialized international or regional courts and tribunals are hesitant or may even lack the competence to pronounce on a conflict between their legal order and other branches of international law.

Maarten den Heijer is assistant professor of international law at the Amsterdam Center for International Law, University of Amsterdam, The Netherlands, e-mail: m.denheijer@uva.nl. Harmen van der Wilt is professor of international criminal law at the University of Amsterdam, The Netherlands, e-mail: h.g.vanderwilt@uva.nl.

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Notes

  1. 1.

    Compare with the provocative title of Bianchi’s seminal article: ‘Human rights and the magic of jus cogens’. Bianchi 2008. See also D’Amato’s title: ‘It’s a bird, it’s a plane, it’s jus cogens’. D’Amato 1990.

  2. 2.

    Compare the contributions of Vadi 2016; Costello and Foster 2016; Cottier 2016; and Kotzé 2016.

  3. 3.

    Meron 2006.

  4. 4.

    For an overview, see Shelton 2006.

  5. 5.

    International Law Commission, Fragmentation of international law: difficulties arising from the diversification and expansion of international law, Report of the Study Group of the International Law Commission, 58th session, UN Doc. A/CN.4/L.682, 13 April 2006 (Fragmentation of international law).

  6. 6.

    Linderfalk 2016.

  7. 7.

    d’Aspremont 2016.

  8. 8.

    1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331.

  9. 9.

    For the first mentioned suggestion, see Hameed 2014.

  10. 10.

    Abi-Saab 1973, at 53; Brownlie 1988, at 110.

  11. 11.

    See, for instance, Koskenniemi 2005, at 113 and 122 (disqualifying it as ‘kitsch’).

  12. 12.

    See Vadi 2016; Cottier 2016; Costello and Foster 2016; and Kotzé 2016. While these authors do not necessarily agree with the expansion of jus cogens in the area that they analyse, they convincingly demonstrate that its role is increasing.

  13. 13.

    For an impressive enumeration, describing it as the ‘creative pull of jus cogens’, see d’Aspremont 2016, at 95.

  14. 14.

    Kadelbach 2016; Shelton 2016, at 42.

  15. 15.

    Santalla Vargas 2016.

  16. 16.

    Orakhelashvili 2016, at 145. ‘There is little sense in insisting on the strict separation between the prohibitions stipulated under substantive jus cogens rules and legal consequences arising after these prohibitions are violated, given that all pertinent frameworks in which jus cogens is relevant have rejected such separation.’

  17. 17.

    Kleinlein 2016.

  18. 18.

    Kleinlein 2016, who refers to Pellet 2006, at 83–84.

  19. 19.

    Shaw 2008, at 258.

  20. 20.

    Kadelbach points out that ‘[m]ore significant than its technical function, however, is its symbolic value, most notably in the area of human rights.’ Kadelbach 2016, at 149. Costello and Foster argue that ‘indeed it is well recognized that most norms that have attained the status of customary international law and even jus cogens are human rights norms’. Costello and Foster 2016, at 299. According to Vadi ‘[l]ike natural law, jus cogens emphasises the importance of human beings rather than necessarily conforming with the consolidated positivist and state-centric Westphalian understanding of international law.’ Vadi 2016, at 359.

  21. 21.

    Compare para 5 of Commentary to Draft Article 26, in: ILC, Draft Articles on the Responsibility of States for Internationally Wrongful Acts, with Commentary, A/56/10: ‘peremptory norms that are clearly recognised include the prohibition of aggression, slavery, racial discrimination, crimes against humanity and torture, and the right to self-determination.’ For similar findings of the ICJ, see Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Rwanda), ICJ, Jurisdiction of the Court and Admissibility of the Application, Judgment of 3 February 2006, para 64, affirming that ‘jus cogens is part of international law and that the prohibition of genocide belongs to this category of norms’ This was confirmed in Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia Herzegovina v Serbia and Montenegro), ICJ, Judgment of 26 February 2007, para 161. As for the prohibition of torture as jus cogens, see Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), ICJ, Merits, Judgment of 20 July 2012, para 99. ‘[T]he prohibition of torture is part of customary international law and it has become a peremptory norm (jus cogens).’

  22. 22.

    Prosecutor v. Furundžija, Trial Chamber, Judgment, Case No. IT-95-17/1-T, 10 December 1998, para 155.

  23. 23.

    Principle 1 of the Nuremberg Principles. International Law Commission, Report of the International Law Commission on its second session, UN Doc. A/CN.4/34, 29 July 1950. ‘Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment’.

  24. 24.

    Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, Case No. ICC-01/09, 31 March 2010. On this decision, see Kress 2010.

  25. 25.

    For a seminal analysis, see Fortin 2015.

  26. 26.

    Costello and Foster 2016.

  27. 27.

    Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), ICJ, Judgment of 20 July 2012, para 100. ‘However, the obligation to prosecute the alleged perpetrators of acts of torture under the Convention applies only to facts having occurred after its entry into force for the State concerned.’

  28. 28.

    Jurisdictional Immunities of the State (Germany v Italy: Greece intervening), ICJ, Judgment of 3 February 2012, para 93. The opinion of the ICJ dovetails with the findings of the European Court of Human Rights in Al-Adsani v. United Kingdom, ECtHR, No. 35763/97, 21 November 2001, para 61. ‘Nothwithstanding the special character of the prohibition of torture in international law, the Court is unable to discern in the international instruments, judicial authorities or other materials before it any firm basis for concluding that, as a matter of international law, a State no longer enjoys immunity from civil suit in the courts of another State were acts of torture are alleged.’

  29. 29.

    Shelton 2016.

  30. 30.

    On the latter’s dark reputation, see Gberie 2005. Gberie strongly censures the prosecutorial strategy of Prosecutor David Crane of the Special Court for Sierra Leone who, instead of starting the prosecution against the leaders of the RUF ‘whose campaign of terror had brought Sierra Leone down on its knees and killed tens of thousands of its citizens’, entered charges against the ‘putative leaders of the Civil Defense Force (CDF), a group of civilians who organized to liberate villages overrun by the RUF, keep the bloodthirsty rebel force in check, and restore a democratically elected government that had been overthrown by the rebels and rogue government soldiers.’ Gberie 2014, at 625.

  31. 31.

    Pinker 2011, at 310.

  32. 32.

    Marshall, Cole and George Mason University 2008, at 6.

  33. 33.

    Mueller 2004, at 1.

  34. 34.

    At first blush, torture is slightly more complicated, because Article 1 of the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 UNTS 85 requires the involvement of a public official. However, the ICTY has made it abundantly clear that this requirement is unnecessary for torture to qualify as a war crime or crime against humanity. See Prosecutor v. Kunarac et al., Trial Chamber, Judgment, Case No. IT-96-23-T and IT-96-23/1-T, 22 February 2001, para 496. ‘The Trial Chamber concludes that the definition of torture under international humanitarian law does not comprise the same elements as the definition of torture generally applied under human rights law. In particular, the Trial Chamber is of the view that the presence of a state official or of any other authority-wielding person in the torture process is not necessary for the offence to be regarded as torture under international humanitarian law.’

  35. 35.

    International Law Commission, Articles on the Responsibility of States for Internationally Wrongful Acts, 53rd session of the ILC, UNGA Res 56/83, 12 December 2001.

  36. 36.

    Crawford 2002, at 116.

  37. 37.

    La Cantuta v Peru, IACtHR, Merits, Reparations and Costs, Series C No. 162, Judgment of 29 November 2006, para 160 (discussed by Shelton 2016, n. 20).

  38. 38.

    Ibid. ‘As pointed out repeatedly, the acts involved in the instant case have violated norms of international law (jus cogens).’ In other words: the Court recognized that non-state actors could be the authors of jus cogens violations.

  39. 39.

    Compare with Cottier’s point, who argues that ‘[h]ost countries of foreign direct investment often lack the political and legal structure to impose and enforce peremptory norms for various reasons.’ Cottier 2016, at 345.

  40. 40.

    See also Snyder 2015, Chapter 4.

  41. 41.

    1945 Charter of the United Nations, 1 UNTS XVI.

  42. 42.

    Koskenniemi and Leino 2002, at 556 (quoting Sir Hersch Lauterpacht).

  43. 43.

    Weil 1983, at 441.

  44. 44.

    Reisman 1990; Schrijver 1999.

  45. 45.

    Fragmentation of international law.

  46. 46.

    See Vadi 2016; Cottier 2016; and Costello and Foster 2016.

  47. 47.

    E.g. Mitchell 2005.

  48. 48.

    E.g., Meron 1986. See also Kleinlein 2016, at 182.

  49. 49.

    Hathaway and Foster 2014, 193 ff; Costello and Foster 2016.

  50. 50.

    Kotzé 2016.

  51. 51.

    W. Riphagen, Special Rapporteur, Third report on the content, forms and degrees of international responsibility (Part Two of the draft articles) UN Doc. A/CN.4/354 and Corr.1 and Add.1 & 2, 1982, at 39, paras 104–105.

  52. 52.

    Case C–402/05 P and C–415/05 P, Kadi and Al Barakaat International Foundation v. Council and Commission [2008] ECR I–6351, paras 282–288.

  53. 53.

    1998 Rome Statute of the International Criminal Court, Rome, 2187 UNTS 3 (ICC Statute).

  54. 54.

    Article 21 ICC Statute.

  55. 55.

    E.g., X. v Latvia, ECtHR, No. 27853/2009, 26 November 2013; and Golder v The United Kingdom, ECtHR, No. 4451/70, 21 February 1975.

  56. 56.

    Al-Jedda v The United Kingdom, ECtHR, No. 27021/08, 7 July 2011, para 76.

  57. 57.

    Application of the Convention on the Prevention and Punishment of the Crime of Genocide, para 403. The Court notes that positions adopted by the ICTY on issues of general international law ‘do not lie within the specific purview of its jurisdiction’. See also the addresses of ICJ presidents Schwebel and Guillaume, quoted in Koskenniemi and Leino 2002, at 553–554.

  58. 58.

    Alvarez-Rio and Contreras-Garduno 2013.

  59. 59.

    Sir H. Waldock, Special Rapporteur, Second report on the law of treaties, UN Doc. A/CN.4/156 and Add. 1-3, 1963, at 53. See also International Law Commission, Draft articles on the responsibility of states for internationally wrongful acts, with commentaries, 53rd session of the ILC, UN Doc. A/56/10, 2001, at 112. ‘The concept of peremptory norms of general international law is recognized in international practice, in the jurisprudence of international and national courts and tribunals and in legal practice.’

  60. 60.

    International Law Commission, Report of the International Law Commission, 66th session of the ILC, UN Doc. A/69/10, 2014, at 265–266.

  61. 61.

    Ibid., Annex, at 274 ff.

  62. 62.

    Ibid., n.60.

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Authors and Affiliations

  1. Department of Public International Law, University of Amsterdam, Amsterdam, The Netherlands

    Maarten den Heijer

  2. Department of Criminal Law, University of Amsterdam, Amsterdam, The Netherlands

    Harmen van der Wilt

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  1. Maarten den Heijer
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Correspondence to Maarten den Heijer .

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Editors and Affiliations

  1. Center for International Law, University of Amsterdam, Faculty of Law, Amsterdam, The Netherlands

    Maarten den Heijer

  2. Chair of International Criminal Law, University of Amsterdam, Faculty of Law, Amsterdam, The Netherlands

    Harmen van der Wilt

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den Heijer, M., van der Wilt, H. (2016). Jus Cogens and the Humanization and Fragmentation of International Law. In: Heijer, M., van der Wilt, H. (eds) Netherlands Yearbook of International Law 2015. Netherlands Yearbook of International Law, vol 46. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-114-2_1

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