A) INTRODUCTION
Traditionally linked to the notion of International Public Order, the concept of ius cogens presupposes that there are some rules which are so fundamental to the international community that States cannot derogate them[1].
The two issues under discussion in this paper are; the content of ius cogens norms (hierarchy and applicability), and their application by States.
B) CONTENT OF IUS COGENS NORMS
B.1) Peremptory norms
Rules of ius cogens are of so fundamental a character that, when parties conclude a treaty which conflicts in any of its clauses with an already existing rule of ius cogens, the treaty must be considered totally invalid.[2] This means that when there is conflict between an act or norm, and a ius cogens norm, the latter should prevail.
The ICJ, however, has avoided to rule on this issue. On the few cases that States actually brought the issue of ius cogens to the attention of the Court, the case was decided on other grounds. Recognizing rules that are non-derogable has definitely a political relevance.
Lately, however, the Court[3] recognized that [The] fundamental rules [of humanitarian law] are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law”.
Identifying these fundamental norms is the true problem. Although there are some norms that are almost universally deemed peremptory (such as war crimes, crimes against humanity, the prohibition of torture, or genocide) others, by lack of consensus, are still halfway there. For instance, environmental rights, non-proliferation, non-intervention, abolition of the death penalty; will be problematic issues, should the development of these norms as ius cogens be pursued.
International legal instruments and doctrine now often refer to the "common interest of humanity" or "common concern of mankind" to indentify broad concerns that could form part of the international public policy. (Shelton) It is plausible to speak of a movement towards development of ius cogens norms.
B.2) Erga omnes application
The Court’s first reference to the notion of obligation erga omnes was made with regard to the outlawing of genocide. In an Advisory Opinion[4], the Court recognizes implicitly that the outlawing of genocide represents an obligation erga omnes. Although it was implicitly stated, there is value to the idea of rules of law generally applied, independent of State Consent.
In its Judgment of 11 July 1996 in the Genocide case, the Court stated "[i]t follows that the rights and obligations enshrined by the Convention are rights and obligations erga omnes"[5].
In fact, the primary purpose of asserting that a norm is ius cogens seems to be to override the will of persistent objectors to a norm of customary international law (shelton). It is not clear whether the international community as a whole is willing to accept the enforcement of widely-accepted norms against dissenters.
There is then, a requirement of acceptance and recognition by the international community. However, this does not mean that the requirement is unanimity. On the contrary, the goal of ascertaining ius cogens norms is achieving unanimity where there was dissent.
Although States generally comply with ius cogens norms, and almost al States are parties to the most fundamental International Law Treaties, this issue is far from settled, as future development of ius cogens norms brings concern about the possibility of States not entering a ius cogens Treaties, or making reservations to them.
C) APPLICATION OF IUS COGENS NORMS BY STATES
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.
The main organ in charge of application of international law is the ICJ, which has been very careful in opening such pandora box. This was shown in the Arrest Warrant judgment of 14.02.2002, in a case where crimes against humanity were involved, but diplomatic immunity was given privilege, without discussing the applicability of jus cogens.
However, the great power of ius cogens norms is their persuasion. States sometimes have to make choices, as to whether they should violate binding International Law. International; on certain circumstances, national interest could be more compelling than the consequences on non compliance of an international norm.
In case of fundamental norms, as deemed by the International Community, a State could find it more difficult to violate such rules. The political consequences, the view of the international public opinion, are discouraging elements, which might dissuade a particular government to go against a peremptory norm.
D) CONCLUSION
Development of ius cogens norms, and the persuasion of the International Community towards these ideas, are definitely an encouragement towards compliance, and an extension of the ideas of international peace and justice.
The reason for which the International Courts refuse to fully recognize and study ius cogens, is because future developments on criteria of fundamental norms may have a political effect, for which International Courts are apparently not willing to take responsibility for.
The development of ius cogens norms will ensure a safer and more just world. Achieving consensus in the international community is still problematic, and powerful states probably have doubts, as they might encounter difficulties in compliance with future peremptory norms.
[1] The Contribution of the international court of justice to international humanitarian law
Vincent chetail, IRRC June 2003 Vol. 85 N
[2] YILC, 1966, II, p. 239, para. 8
[3] Legality of the Threat or Use of Nuclear Weapons,
[4] on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide of 28 May 1951
[5] Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, I.C.J. Reports 1996, p. 616, para. 31
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