It is a peremptory norm that has an overriding and
fundamental principle of international law. It is called ‘compelling law’ under
Latin phrase and there is no defence available to the party which does an act
prohibits by jus Cogen. The major step towards the development of Jus Cogen as
a universal mandate upon the countries is the War Crimes Convention. The War
Crimes Convention enumerated the definition of crimes against humanity as set
out in the Nuremberg Charter 1945 during World War 2. The idea of having a
universally binding natural law was coined as the doctrine of Jus Cogen that
was defined in Article 53 of the Vienna Convention on the law of treaties, 1969,
which says that a treaty will be void if it violates the peremptory norm of
International Law. As well as article 64 says that if any new peremptory norm
of general international law emerges and it is in violation of the existing
treaty, then such treaty will become void. And these two articles give a lot of
power to the principle of Jus Cogen.
Jus Cogen is a set of binding rules of international
law and there are no exceptions available for the violation of the same. It is
strictly binding upon all the countries, irrespective of their consent and
violation of this would mean crime against the community as a whole. Some of
the crimes mentioned as Jus Cogen are slavery, genocide, torture, prolonged
arbitrary detention and radical discrimination. Any activity or treaty signed
by the international organisation, any sovereign state or individual body that
is violating human dignity and human rights will be said to be violative of Jus
Cogen. Therefore, it could be said that Jus Cogen is protective of Human Rights
and Human Dignity around the globe.
How is it different from Jus Positivism
– Jus positivism is man-made law that is applicable within a state itself. It
can be altered from time to time.
Criticism to Jus Cogens:
1. They put a limitation upon the state’s
ability to formulate or change international law. As Jus Cogen being a natural
law is believed to be hierarchically superior and cannot be abrogated and no
derogation is allowed as well.
2. The states have to follow it mandatorily,
irrespective of the consent given or not to it.
3. As known that international laws are only
advisory in nature, but Jus Cogen makes it obligatory for the states to follow
them.
4. There are probabilities that Jus Cogen can
be misused by way of interpreting the rules laid down.
Cases
1. In the case of Bosnia and Herzegovina,
2007 where a group of Muslim people were tortured and killed. The ICJ held it
to be a crime of genocide and held that Jus Cogen stands superior to customary
law and treaties as it stands upon the fundamental of the natural law and
humanity. Hence Serbia was held liable for the crime of genocide.
2. In the case of Nicaragua v United States
of America 1986, the ICJ held that the US cannot take the defence of collective
self-defence to justify the force used against the other state. The purpose of international
law is the peaceful settlement of international issues. This case introduced
the concept of opinion Juris (article 38 (1)(b) of the statute of International
Court of Justice) in international law which means that the action was taken
out as a legal obligation. The usage of force must meet the various reasonable
conditions and legal justification. The court found the US to be in violation
of this principle.
3. The references in the Court’s Advisory
Opinion on Reservations to the Convention on the Prevention and Punishment of
the Crime of Genocide to “the conscience of mankind” and “moral law” evoke
fundamental values shared by the international community. Moreover, in its 2007
judgment in the case concerning the Application of the Convention on the
Prevention and Punishment of the Crime of Genocide, the Court referred to
peremptory norms along with “obligations which protect essential humanitarian
values”, thus indicating a relationship between them.
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