Series Editors’ Preface
I am delighted to welcome this wonderful contribution to our new series, Elements of International Law: Jus Cogens by Professor Dinah Shelton. When the Elements’ Editors set out to find the best-qualified author to write our jus cogens volume, it was really not a difficult task of discovery. One scholar stood out: Dinah Shelton. Through a remarkable and distinguished career, Professor Shelton has secured her place as one of the most respected authorities in International Law, and her work on the important and complex role of fundamental norms in our discipline is unique and without modern parallel. All of the editors of Elements are honored to have Professor Shelton joining our series.
Let me briefly put Professor Shelton’s book into the larger context of Elements of International Law. Some years ago I brought the concept of the series to John Louth and Merel Alsteen, international law editors at Oxford University Press. Together, along with co-editors Douglas Guilfoyle, Stephan Schill, Bruno Simma, and Kimberley Trapp, we structured Elements, chose topics, sought out the best person for each book, and edited their contributions. There are several dozen authors already working on Elements books and we anticipate about six published works in 2020, and ten or so more in each of the next years, in time numbering more than one hundred volumes.
Elements represents a fresh approach to the literature of international law. It is a long series of short books. Following the traditional path of an international law treatise, Elements, rather than treating the whole of the field in one increasingly heavy volume, focuses on more narrowly-defined subject matters, such as Jus Cogens and International Law.
There is nothing like Elements. It treats particular topics of international law much more extensively and in significantly more depth than traditional international law texts or encyclopedias. Each book in the Elements series has a relatively narrow focus and renders a comprehensive treatment of a specialized subject matter, in comparison to the more limited treatment of the same subject matter in other general works.
Like a classic textbook, Elements aims to provide objective statements of the law. The series does not concern itself with the academic niches
filled ably by doctoral theses, nor include works which take an argumentative point of view, already well done by the OUP Monograph series. Except in length and integration, Elements is for substantive topics comparable to OUP’s Commentary series on individual treaties: a highly reliable, objective, in-depth, and readable account of its subject.
Each book in Elements is exhaustively footnoted in respect of international legal practice and scholarship, e.g., treaties, diplomatic practice, decisions by international and municipal courts and arbitral tribunals, resolutions and acts of international organizations, and commentary by the most authoritative jurists. Elements adopts an objective, non-argumentative approach to its many subject matters and constitutes a reliable go-to source for practicing international lawyers, judges and arbitrators, government and military lawyers, and scholars, teachers, and students engaged in the discipline of international law.
All of us committed to Elements – authors, editors, publishers – hope that our series will make a real difference to international law and to the rule of law. We are so delighted to have Professor Shelton’s Jus Cogens as one of our earliest books in the series. Not only because of its accomplished author, but because jus cogens is both one of the more difficult-to-understand concepts in our discipline and one of the most important, laying a foundation for the other norms of International Law. I am sure you will find Professor Shelton’s book to be an important guide to understanding this concept in depth.
Mark Janis Editor-in-Chief, Editorial Board, Elements of International Law
William F Starr Professor of Law, University of Connecticut 31 August 2020 Hartford, Connecticut
Preface
This book has been a long time in preparation, especially considering the many years of teaching international law and thinking about its sources. I have previously written about the topic of jus cogens, including in the Netherlands Yearbook of International Law, 2015, and the American Journal of International Law, among others. Inevitably, some of the basics of this volume draw upon those earlier publications. I have listed these in full below and am grateful for and wish to acknowledge them here.
I am also very appreciative of Mark Janis’s invitation to embark on the work of writing this work as part of the series Elements of International Law. Undertaking the study has required me to update my previous writings and to follow closely the recent work of the UN International Law Commission on the topic. I hope I have done justice to the excellent reports of its special rapporteur, Mr Dire Tladi, on peremptory norms of general international law (jus cogens). There are many new elements in his four reports and the responses to them from states and other members of the ILC. I hope they are all adequately treated herein. Any errors are entirely my responsibility, of course.
As is always the case with my research and writing, I owe an enormous debt of gratitude to the law librarians at the George Washington University Law School. They are always unfailing in their expertise and assistance. Thanks also to OUP and Newgen for its work on editing and publishing this work.
1. Chapters 1, 2, 3, 5, 6, and 7 draw upon materials published in Dinah Shelton, ‘Sherlock Holmes and the mystery of jus cogens’, 46 Netherlands Yearbook of International Law, (2015) 23–50. Reprinted with permission.
2. Chapters 1,2,3,5, and 6 draw upon materials published in Dinah Shelton, ‘International Law and “Relative Normativity”’ in M.D Evans (ed.), International Law, (4th edn, OUP 2014) 137–166.
3. Chapter 2 draws upon material published in Dinah Shelton, ‘Normative Hierarchy and International Law’, (2006) 100 American Journal of International Law, 291–326. Reprinted with permission.
4. The book reviews: R. Kolb, Peremptory International Law (Jus Cogens): A General Inventory (Oxford and Portland, OR, Hart 2015) xv, 148, Bibliography, Index; and T. Weatherall, Jus Cogens: International Law and Social Contract (Cambridge University Press 2015), xliv, 509, Index.
5. Dinah Shelton, ‘Resolving conflicts between human rights and environmental protection: Is there a hierarchy?’ in E. de Wet and J. Vidmar (eds), Hierarchy in International Law: The Place of Human Rights (OUP, 2012), 206–235.
6. ‘The Legal Status of Normative Pronouncements of Human Rights Treaty Bodies’ in H. Hestermeyer et al (eds) Coexistence, Cooperation and Solidarity: liber Amicorum Rudiger Wolfrum, vol I (Brill Publishers, 2011), 553–577.
7. ‘Hiérarchie des normes en droit international des droits de l’homme,’ 26 La protection des espaces- L’Observateur des Nations Unies, 237 (2009-1).
8. ‘Mettre en balance les droits : vers une hiérarchie des norms en droit international des droits de l’homme,’ in E. Bribosia & L. Hennebel (eds) Classer les droits de l’homme (BRUYLANT 2004) 153.
1 Introduction*
Publicists have long sought to develop a theory that would serve to constrain the claimed unlimited State discretion, in the exercise of sovereignty, to accept or reject an international treaty norm or developing customary international law. The doctrine of peremptory norms (jus cogens) is the primary theory developed in this effort. Notably, however, the norms most often cited as jus cogens have been universally accepted as customary international law or are contained in treaties adhered to by all or nearly all States. Breach of any such norm is a violation of international law; calling the norm jus cogens seems to add little—unless the consequences of violating such norms are enhanced or differ in other ways from breaches of ‘normal’ international law.
On the positive side, however, it may be speculated that at least some support for the development of international criminal law has been based in the desire to limit the ability to opt out of particularly important international norms. In practice, it seems that each lawyer, scholar, and judge brings a particular vision to the issue of identifying what are the important or essential international norms that States should be unable to opt out of or reject. In fact, the content of jus cogens involve considerable subjectivity. Nonetheless, this does not diminish the value of jus cogens as a representation of the idea that there is an international society with core values. In the end, belief that jus cogens exists may be its most important attribute, ensuring that it has some, albeit ill-defined impact.
Available evidence suggests that international jus cogens originated as a construct of writers, in this case in the efforts of early publicists to explain an emerging legal system governing sovereign states, where rulers often claimed absolute power unrestrained by law.1 Scholars sought to
* This chapter draws upon materials published in: Dinah Shelton, ‘Sherlock Holmes and the mystery of jus cogens’, 46 Netherlands Yearbook of International Law, (2015) 23–50. Reprinted with permission. Dinah Shelton, ‘International Law and “Relative Normativity”’ in M.D Evans (ed.), International Law, (4th edn, OUP 2014) 137–166.
1 For historical development of jus cogens, see, A.G. Robledo, 1982a, El ius cogens internacional (Mexico, Universidad Nacional Autónoma de México); and A.G. Robledo, 1982b, ‘Le ius cogens international: Sa genese, sa nature, ses fonctions’, 172 Recueil des Cours, 10–68.
understand the nature and source of obligations that could limit the power of governments internally and internationally, binding them to a set of legal norms to which they did not necessarily express consent.2 Finding the source of such international obligations became a perpetual quest.
Early writers also foresaw problems of hierarchy that would surface with the emergence of conflicting obligations. In attempting to propound a coherent legal system, they turned to analogies from private law, general principles, legal theory, moral and legal philosophy, and religion. They developed the notion of a ‘higher’ law, from which the doctrine jus cogens emerged. Since then, proponents have argued strongly for the existence and functions of jus cogens in international law, while critics have expressed scepticism about the reality or practical value of the concept.3
The only references to peremptory norms in positive law are found in the Vienna conventions on the law of treaties,4 further discussed in section 2.3. Article 53 of the 1969 Vienna Convention on the Law of Treaties (VCLT), concerning treaties between States, provides that a treaty will be void ‘if, at the time of its conclusion, it conflicts with a peremptory norm of general international law’. The 1986 Convention on Treaties between States and International Organizations or between International Organizations is similar in content. Anticipating the VCLT provisions are the writings of classic and modern publicists proposing various sources and functions of jus cogens, as discussed in the chapters that follow. They reveal the cultural importance of jus cogens, but also the very limited role it plays in dispute settlement or enforcement of norms.
2 For a discussion of early attempts to ascertain limits on the exercise of sovereignty, see S. Kadelbach, 2006, at 21; Haimbaugh, 1987, at 207–211.
3 For critical assessments, see, e.g. Schwarzenberger 1967, at 29–30; Schwelb 1967, at 961 (referring to ‘the vagueness, the elasticity, and the dangers of the concept of international jus cogens’); J. Sztucki, 1974, Jus cogens and the Vienna Convention on the Law of Treaties (Vienna, Springer); G.A. Christenson, 1988, ‘Jus cogens: Guarding interests fundamental to international society’, 28 Virginia J. Int’l Law, 585–648; G. Danilenko, 1991, ‘International jus cogens: Issues of law-making’, 2 Eur. J. Int’l Law, 42–65; M. Weisburd, 1995, ‘The emptiness of the concept of jus cogens, as illustrated by the war in Bosnia-Herzegovina’, 17 Michigan J. Int’l Law, 1–51.
4 Vienna Convention on the Law of Treaties, 1155 UNTS 331; 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, UN Doc. A/CONF.129/15.
The Origins and Sources of Jus Cogens*
Jus cogens has been developed largely by international legal scholarship,1 which has attempted to identify the theoretical foundations of a world juridical order. Every classic author in the field of international law expounds a theory of the source of obligation and the nature of international law. They typically distinguish between voluntary or consensual law and compulsory norms that bind a state independently of its will. Some early writers found the source of compulsory law in divine or religious law, binding all humans and human institutions.2 A related theory derives the concept of jus cogens from general principles of law, noting the existence of overriding public policy and superior norms in all legal systems. Finally, positivists rely on state consent for the origin, content, and functions of jus cogens. Each of these conceptual approaches is discussed in the following subsections.
2.1 Natural Law
For most classical writers, there existed three levels of legal obligation: jus dispositivum or voluntary law, divine law, and jus naturale necessarium (necessary natural law), the last mentioned being the highest category. Gentili3
* This chapter draws upon materials published in: Dinah Shelton, ‘Sherlock Holmes and the mystery of jus cogens’, 46 Netherlands Yearbook of International Law, (2015) 23–50. Reprinted with permission. Dinah Shelton, ‘International Law and “Relative Normativity”’ in M.D Evans (ed.), International Law, (4th edn, OUP 2014) 137–166.
1 For a history of this doctrinal development, see A.G. Robledo, 1982, El ius cogens internacional (Mexico, Universidad Nacional Autónoma de México); and A.G. Robledo, 1982, ‘Le ius cogens international: Sa genese, sa nature, ses fonctions’, 172 Recueil des Cours, 10–68.
2 The earliest evidence of treaty practice indicates that the entirety of international obligation was perceived to originate in divine mandates, and any trespass of borders or subjugation of one country by another was regarded as a violation of the divine established order and a grave offence which could lead to immediate sanction by the gods of the breaching party. See A. Amnon, 2012, Tracing the Earliest Recorded Concepts of International Law: The Ancient Near East (2500–330 BC) (Leiden, Martinus Nijhoff).
3 A. Gentili, 1933, De iure belli libri tres (Oxford, Clarendon Press; London, H. Milford).
connected natural law to the law of nations, influencing Grotius who gave primary place to natural law, even over divine law: ‘The law of nature, again, is unchangeable—even in the sense that it cannot be changed by God. Measureless as is the power of God, nevertheless it can be said that there are certain things over which that power does not extend.’4 If such principles of natural law were unchangeable even by God, they necessarily bound all sovereigns on earth: ‘Since this law is not subject to change and the obligations which it imposes are necessary and indispensable, Nations cannot alter it by agreement, nor individually or mutually release themselves from it.’5 So, while voluntary or consent-based law could be created by the express or tacit will of states, such law could not override natural law.
Wolff6 and Vattel7 agreed that there existed ‘necessary law’ by which they meant it was binding and overriding of state consent. This law was natural to all states and made illegal all treaties and customs which contravened this necessary law. Wolff’s necessary law of nations8 included the immutable laws of justice, the ‘sacred law’, which nations and sovereigns are bound to respect and follow in all their actions.9 Pufendorf10 and Vattel also relied on natural law ‘no less binding on states, on men united in political society, than on individuals’.11 They saw the natural law of nations as a particular science, ‘consisting in a just and rational application of the law of nature to the affairs and conduct of nations or sovereigns’.12 The distinction between jus dispositivum and the ‘necessary principles of international law that bind all states regardless of consent’ lies in the origin of the latter in the natural law of reason:
4 H. Grotius, 1625, On the Law of War and Peace (De jure belli ac pacis libri tres) (1646 edn transl. by F.W. Kelsey, 1925, Oxford, Clarendon Press).
5 Ibid.
6 C. Wolff, 1764, Jus gentium methodo scientifica pertractorum [A scientific method for understanding the law of nations] (transl. by J.H. Drake, S.J. Brown, ed., London, Clarendon Press), para. 5.
7 E. de Vattel, 1758, Le droit des gens ou principes de la loi naturelle (London, Neuchâtel), para. 9.
8 J. Chitty, 1849, ‘Preface’, in E. de Vattel (ed.), The Law of Nations; Or Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns (transl. and intro. by J. Chitty, 7th Am. edn, Philadelphia, T. & J.W. Johnson Law Booksellers), at ix (citing C. Wolff, 1764), ‘[T]he law of nations certainly belongs to the law of nature: it is, therefore, on account of its origin, called the Natural, and, by reason of its obligatory force, the necessary law of nations.’
9 Ibid., at xiii.
10 S. Pufendorf, 1710, Of law of Nature and Nations (Oxford, L. Lichfield, for A. & J. Churchill), at Book ii, ch. iii, Sect. 23.
11 Chitty (n 8), at xi.
12 Ibid.
We use the term necessary Law of Nations for that law which results from applying the natural law to Nations. It is necessary, because Nations are absolutely bound to observe it . . This same law is called by Grotius and his followers the internal Law of Nations, inasmuch as it is binding upon the conscience of Nations . . . It is by the application of this principle that a distinction can be made between lawful and unlawful treaties or conventions and between customs which are innocent and reasonable and those which are unjust and deserving of condemnation.13
Suy claims that the actual words jus cogens are not found in any text prior to the nineteenth century,14 although the idea of a law binding irrespective of the will of individual parties is common through ‘the whole theory and philosophy of law’.15 Early twentieth-century publicists, such as Lassa Oppenheim and William Hall, continued to assert that states could not abrogate certain ‘universally recognized principles’ by mutual agreement.16 The rise of positivism reduced although it did not entirely eliminate natural law from theoretical discourse.
2.2 Public Policy: Logical or Legal Necessity
Necessity took on another meaning for authors who focused their attention on positing the fundamental needs of any legal system and on the definition of law itself. Several writers suggested that any society operating under law must have fundamental rules allowing for no dissent if the existence of the law and society is to be maintained. According to Rozakis, the ratio legis of jus cogens is to protect the common concerns of the subjects of law, the values and interests considered indispensable by a society at a given time.17 Organized society creates an ordering of norms, but only when there is a minimum degree of community feeling does it elevate certain values as
13 de Vattel (n 8), pp. 7 and 9.
14 He cites first the 1847 Pandecten of van Gluck I who refers to those laws which categorically prescribe an action or prohibit it and whose binding force is absolute. E. Suy, 1967, ‘The concept of jus cogens in public international law’, in The Concept of Jus Cogens in International Law: Papers and Proceedings, Report of Conference organized by the Carnegie Endowment for International Peace, Lagonissi, Greece (April 1966), at 19.
15 Ibid., at 18.
16 W. Hall, 1924, A Treatise on International Law (8th edn, Oxford, Clarendon), pp. 382–383; L. Oppenheim, 1905, International Law (London, Longmans), p. 528.
17 C. Rozakis, 1976, The Concept of Jus Cogens in the Law of Treaties (Amsterdam, North Holland Publishing Co.), p. 2.
The Origins and Sources of
necessary, with primacy over others.18 Jus cogens in international law therefore starts to appear in positive law as international society develops from relatively unorganized into an increasingly organized one with common interests and values.19
The existence of an international legal system means that public policy requires states to conform to those principles whose non-observance would render illusory the very concept of an international society of states or the concept of international law itself, such as the principles of sovereign equality and pacta sunt servanda. Public policy—ordre public may be defined by its effects, that is, the impossibility for individuals of opting out, or by its objective: to protect the essential interest of the state and establish the legal foundations of the economic and moral order of the society.20 This implies limiting the will of the individual to meet the essential needs of the community.
According to Tomuschat, such a society of fundamental principles has emerged gradually in international relations:
[t]he fact is that the cohesive legal bonds tying States to one another have considerably strengthened since the coming into force of the United Nations Charter; . . . a community model of international society would seem to come closer to reality than at any time before in history.21
States live within a legal framework of a few basic rules that nonetheless allow them considerable freedom of action. Such a framework has become necessary in the light of global problems threatening human survival in an unprecedented fashion. Recalcitrant states would not only profit by rejecting regulatory regimes adopted by the overwhelming majority of states, they would also threaten the effectiveness of such regimes and pose risks to all humanity.22
18 Carnegie Endowment for International Peace, The Concept of Jus Cogens in International Law: Papers and Proceedings (n 14), at 10.
19 Ibid., at 12.
20 H. de Page, 1962, Traité élémentaire de droit civil belge (Brussels, Bruylant), p. 111.
21 C. Tomuschat, 1993, ‘Obligations arising for states without or against their will’, 241 Recueil des Cours, 191–374, at 210–211.
22 Ibid. The emergence of global resource crises, such as the widespread depletion of commercial fish stocks, destruction of the stratospheric ozone layer, and anthropogenic climate change, has produced growing concern about the ‘free rider’, the holdout state that benefits from legal regulation accepted by others while enhancing its own profits through continued utilization of the resource or by ongoing production and sale of banned substances.
In this public order theory, jus cogens norms exist as imperative and hierarchically superior to other international law in order to promote the interests of the international community as a whole and preserve core values. According to von Verdross, this is inherent in all legal systems: ‘A truly realistic analysis of the law shows us that every positive juridical order has its roots in the ethics of a certain community, that it cannot be understood apart from its moral basis.’23 As a consequence, the principle of immoral agreements is recognized in every national legal order. In his third report on the law of treaties in 1958, rapporteur Fitzmaurice appeared to see jus cogens from the public order perspective, as he asserted that rules of jus cogens ‘possess a common characteristic’, namely ‘that they involve not only legal rules but considerations of morals and of international good order’.24 An international tribunal might refuse to recognize a treaty or to apply it where the treaty ‘is clearly contrary to humanity, good morals, or to international good order or the recognized ethics of international behaviour’.25 The origin of jus cogens would thus seem to lie in the sociology or logic of law which requires compliance with essential rules on which the system itself is based; it does not, however, indicate the process by which such rules may be identified on the international level.
2.3 General Principles of Law
The theory that finds the origin of jus cogens in general principles of law recognized in all legal systems, is linked to logical or legal necessity, but is more in keeping with international law doctrine on sources of law. Private agreements contrary to public policy or ordre public are void, voidable, or unenforceable. The rules of public policy are an essential part of the legal and social framework on which every effective legal system, including the international one, ultimately rests.26 In its study on fragmentation of international law, the International Law Commission (ILC) Study Group addressed jus cogens, noting that the idea of hierarchy of norms ‘has found its
23 A. von Verdross, 1937, ‘Forbidden treaties in international law: Comments on Professor Garner’s report on “The Law of Treaties” ’, 31 Am. J. Int’l Law, 571–577, at 574–576.
24 G.G. Fitzmaurice, Special Rapporteur, Third report on the law of treaties, 10th sess. of the ILC, A/CN.4/SER.A/1958/Add.l, 1958, at 41.
25 Ibid., at 28.
26 Georg Schwarzenberger, 1965, ‘International Jus Cogens’ 43 Tex. L. Rev. 455, at 457.
expression in one way or another in all legal systems’.27 Like many authors, the Study Group pointed to the Roman law distinction between jus cogens or jus strictum and jus dispositivum and the maxim jus publicum privatorum pactis mutari non potest. 28
Domestic laws generally provide for the invalidity of agreements that conflict with public policy or ordre public. German authors writing in the early 1930s referred to jus cogens as general principles of law which are recognized as overriding norms by all civilized nations.29 For some French scholars, humanitarian rules also belong to general principles of law from which no derogation is possible.30 In Lauterpacht’s view, the illegality of the object of the treaty and consequently the nullity of the agreement would result from ‘inconsistency with such overriding principles of international law which may be regarded as constituting principles of international public policy (ordre international public)’.31 These principles need not necessarily be codified or crystallized. Lauterpacht asserts that ‘overriding principles of international law’, such as the suppression of slavery, ‘may be regarded as constituting principles of international public policy (ordre international public). These principles . . . may be expressive of rules of international morality so cogent that an international tribunal would consider them forming a part of those principles of law generally recognized by civilized nations which the ICJ is bound to apply [under] its Statute’.32
In McNair’s classic work on the law of treaties, the author found it ‘difficult to imagine any society, whether of individuals or of States whose law sets no limit whatever to freedom of contract’.33 Every civilized community
27 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 Sess., UN Doc. A/CN.4/L.682, 13 April 2006, at 181.
28 Ibid., 182. Jus publicum was not only public law, but all rules are important to the society.
29 F.A. von der Heydte, 1932, ‘Die Erscheinungsformen des Zwischenstaatlichen Rechts: jus cogens und jus dispositivum im Volkerrecht’, 16 Zeitschrift für Völkerrecht, 461–487. The author cited, in particular, the rules indispensable and necessary to the existence of every legal order, e.g. pacta sunt servanda and the obligation to make reparation for damages.
30 L. Delbez, 1964, Les principes generaux du droit international public (3rd edn, Paris, Pichon et Durand-Auzias), pp. 317–318. ‘The object of a treaty is unlawful when the obligations it contains are contrary to prior conventional obligations, rules of customary law or rules based on universal morality of an imperative character.’ See also L. Cavare, 1962, Droit international public positif (2nd edn, Paris, Pedone), p. 69 (agreements cannot be contrary to ‘le droit commun de l’humanite’); and P. Reuter, 1961, ‘Principes de droit international public’, 103 Recueil des Cours, Hague Academy Int’l Law,425–655, at 466–467.
31 H. Lauterpacht, Special Rapporteur, Report on the law of treaties, UN Doc. A/CN.4/63, 24 March 1953.
32 Ibid., para. 4.
33 A.D. McNair, 1961, Law of Treaties (Oxford, Clarendon Press), pp. 213–214.
contains norms from which no derogation is allowed and the community of states is no exception. This suggests that he viewed jus cogens as originating in general principles of law, but he goes on to indicate that the specific content of such rules emerges from the consent of states. Where there is a conflict between a treaty and a norm of customary international law, McNair concludes that certain of these norms ‘cannot be set aside or modified by contracting States . . they consist of rules which have been accepted, either expressly by treaty or tacitly by custom, as being necessary to protect the public interests of the society of States or to maintain the standards of public morality recognized by them’.34
2.4 Consent
In the nineteenth century, a notion of international law emerged that was based strictly on the consent of states.35 Nevertheless authors from the beginning of the twentieth century continued to assert the existence of fundamental norms (Grundnorms)36 sometimes founded on la solidarité naturelle, 37 but more often contending that states themselves had recognized peremptory norms and their effect in customary international law. Oppenheim stated in 1905 that in his view ‘a number of “universally recognised principles” of international law existed which rendered any conflicting treaty void and that the peremptory effect of such principles was itself a unanimously recognized customary rule of international law’.38 Similarly, Hall stated that:
[t]he requirement that contracts shall be in conformity with law invalidates, or at least renders voidable, all agreements which are at variance with the fundamental principles of international law and their
34 Ibid., p. 215.
35 ‘Les règles de droit international n’ont pas un caractère imperatif. Le droit international admet en conséquence qu’un traité peut avoir n’importe quel contenu’, P. Guggenheim, 1953, Traité de droit international public (Genf, Georg), pp. 57–58. See also G. Morelli, 1951, Nozioni di diritto internazionale (Padova, CEDAM), p. 37; The Case of the S.S. Lotus, PCIJ, Judgment 9 of 7 September 1927, at 18.
36 H. Kelsen, 1945, General Theory of Law and State (Cambridge, Harvard University Press), pp. 110 ff.
37 G. Scelle, 1932, Précis de droit des gens (Paris, Recueil Sirey), Premiére Partie, p. 3; and G. Scelle, 1948, Cours de droit international public (Paris Dormat-Montchrestien), pp. 5 ff.
38 Oppenheim (n 16), p. 528.
undisputed applications, and with the arbitrary usages which have acquired decisive authority.39
In 1934, Judge Schücking asserted that the League of Nations would not have embarked on the codification of international law ‘if it were not possible to create jus cogens, the effect of which would be that, once States have agreed on certain rules of law, and have also given an undertaking that these rules may not be altered by some only of their number, any act adopted in contravention of that undertaking would be automatically void’.40
A strictly voluntarist view of international law rejects the notion that a state may be bound to an international legal rule without its consent and thus does not recognize a collective interest that is capable of overriding the will of an individual member of the society. States are deemed to construct the corpus of international law either through agreements or through repeated practice out of a sense of legal obligation.41 The Permanent Court of International Justice (PCIJ), in one of its first decisions, stated that ‘[t]he rules of law binding upon States . . . emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law’.42 As recently as 1986, the ICJ reaffirmed this approach in respect to the acquisition of weaponry by states. In the Nicaragua judgment the Court stated:
In international law there are no rules, other than such rules as may be accepted by the State concerned, by treaty or otherwise, whereby the level of armaments of a sovereign State can be limited, and this principle is valid for all States without exception.43
Some legal theorists have long objected that the source of international obligation cannot lie in consent, but must be based on a prior, fundamental norm that imposes a duty to comply with obligations freely accepted
39 Hall (n 16), p. 382.
40 See, Oscar Chinn case, 1934 PCIJ (ser. A/B) No. 63, at 149–150 (Schücking, J. dissenting).
41 See L. Henkin, 1989, ‘International law: Politics, values and functions’, 216 Recueil des Cours, 9–416, at 45; P. Weil, 1983, ‘Towards relative normativity in international law?’, 77 Am. J. Int’l L., 413–442; G. Danilenko, 1991, ‘International jus cogens: Issues of law-making’, 2 Eur. J. Int’l Law 42–65, at 42; I.I. Lukashuk, 1989, ‘The principle pacta sunt servanda and the nature of obligation under international law’, 83 Am. J. Int’l Law, 513–518.
42 Lotus, Judgment No. 9, 1927, PCIJ, Ser A, No. 10, at 18.
43 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, Judgment, ICJ Reports 1986, at 14, para. 269.
(Kelsen, 1945). Without a source of this norm outside consent there is an unavoidable circularity of reasoning. A natural law origin of international obligation was dominant among scholars until the nineteenth century, when positivism and an emphasis on the sovereignty of states emerged in theory and practice.44
Most contemporary commentators continue to view jus cogens through the prism of state consent.45 Specifically, states may identify peremptory norms in treaties, accept them as a higher form of customary international law, or derive from them general principles of municipal law.46 In practice, few if any examples can be found where states have expressly indicated their intent to identify or create a peremptory norm; identification is thus by implication. Yet, the positivist approach to identifying jus cogens, if not to explaining its origin, appears accepted by the International Court of Justice (ICJ). In Arrest Warrant Case the Court concluded that the prohibition against torture is a norm of jus cogens based on ‘widespread international practice and on the opinio juris of States’.47
It is unclear how, in a consent-based system, peremptory norms bind those who object to the very concept of jus cogens or to a notion that such norms can be identified by a large majority and imposed on dissenters. The International Law Commission Commentary to Article 53 VCLT suggests that peremptory norms need not achieve universal acceptance to create a binding international consensus; it is sufficient if a ‘very large majority’ of representative states accept the norms as non-derogable.48 The positivist concept of peremptory norms thus reaches a conundrum in having a consensual process with a non-consensual result—the imposition of rules adopted by a large majority of dissenting states. Even if states consented to a consensus-based source of international lawmaking, this would not preclude them from withdrawing their consent at will.49 In fact, it is difficult to
44 See ch. 1.
45 M.N. Shaw, 2008, International Law (5th edn, Cambridge, Cambridge University Press), p. 97: ‘[O]nly rules based on custom or treaties may form the foundation of jus cogens norms.’
46 See, e.g. M. Byers, 1997, ‘Conceptualizing the relationship between jus cogens and erga omnes rules’, 66 Nordic J. Int’l Law, 211–239, at 212 (jus cogens rules are derived from the process of customary international law).
47 Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), ICJ, Judgment of 20 July 2012, at para. 99.
48 See Restatement (Third) of Foreign Relations of the United States, para. 102, n. 6. The Restatement cites the UN Conference on the Law of Treaties, Report of the proceedings of the Committee of the Whole, UN Doc. A/CONF.39/11, 21 May 1968, at 471–472 (comments of the chairman).
49 See J. Sztucki, 1974, Jus cogens and the Vienna Convention on the Law of Treaties (Vienna, Springer), p. 97.
Origins and Sources of
reconcile peremptory norms that bind dissenting states with the positivist theory of international law.50
The extent to which the system has moved and may still move towards the imposition of global public policy on non-consenting states remains highly debated, but the need for limits on state freedom of action seems to be increasingly recognized. International legal instruments and doctrine now often refer to the ‘common interest of humanity’51 or ‘common concern of mankind’ to identify broad concerns that could form part of international public policy. References are also more frequent to ‘the international community’ as an entity or authority of collective action.52 In addition, multilateral international agreements increasingly contain provisions that affect non-party states, either providing incentives to adhere to the norms, or allowing parties to take coercive measures that in practice require conforming behaviour of states not adhering to the treaty. The UN Charter itself contains a list of fundamental principles and in Article 2(6) asserts that these may be imposed on non-parties if necessary to ensure international peace and security.
It should be noted that the problem of dissenting states is not as widespread as might be assumed. First, the obligations deemed basic to the international community—to refrain from the use of force against another state, to peacefully settle disputes, and to respect human rights, fundamental freedoms, and self-determination—are conventional obligations contained in the UN Charter, to which all member states have consented. All states have accepted the humanitarian conventions on the laws of war which express customary international law. The multilateral regimes for the oceans, outer space, and key components of the environment (climate change, protection of the ozone layer, and biological diversity) are widely accepted. Thus in most cases the problem is one of ensuring compliance by states that have freely consented to the obligations in question and not one of imposing obligations on dissenting states.
50 See ibid., p. 64. ‘[T]he introduction of a consensual ingredient into the concept of jus cogens leads inevitably, in the ultimate instance, to the very negation of that concept.’ See also Siderman de Blake v Republic of Argentina, 965 F.2d 699, 715 (9th Cir. 1992) (stating that jus cogens norms ‘transcend . . consent’).
51 See, UNCLOS, Art. 137(2); Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (1967), pmbl., para. 2.
52 See, e.g. Art. 53, VCLT; Arts 136–137 UNCLOS.
