Peremptory norm

A peremptory norm (also called "jus cogens" or "ius cogens", Latin for "compelling law") is a fundamental principle of international law which is accepted by the international community of states as a norm from which no derogation is ever permitted.

There is no clear agreement regarding precisely which norms are "jus cogens" — or indeed how a norm reaches the status of "jus cogens" — but it is generally accepted that "jus cogens" includes the prohibition of genocide, maritime piracy, slaving in general (to include slavery as well as the slave trade), torture, wars of aggression and territorial aggrandizement and the prohibition on the use of force by states.

tatus of peremptory norms under international law

Unlike ordinary customary law, which has traditionally required consent and allows the alteration of its obligations between states through treaties, peremptory norms cannot be violated by any state "through international treaties or local or special customs or even general customary rules not endowed with the same normative force". [Prosecutor v. Furundzija, International Criminal Tribunal for the Former Yugoslavia, 2002, 121 "International Law Reports" 213 (2002)]

Under the Vienna Convention on the Law of Treaties, any treaty that conflicts with a peremptory norm is void. [Vienna Convention on the Law of Treaties, Article 53, May 23, 1969, 1155 U.N.T.S 331, 8 "International Legal Materials" 679 (1969)] The treaty allows for the emergence of new peremptory norms, [Vienna Convention on the Law of Treaties, Article 64, May 23, 1969, 1155 U.N.T.S 331, 8 "International Legal Materials" 679 (1969)] but does not itself specify any peremptory norms.

"A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character." [ U.N. Doc. A/CONF.39/27 (1969), repinted in 63 Am. J. Int'l L. 875 (1969).]

The number of peremptory norms is considered limited but not exclusively catalogued. They are not listed or defined by any authoritative body, but arise out of case law and changing social and political attitudes. Generally included are prohibitions on waging aggressive war, crimes against humanity, war crimes, maritime piracy, genocide, slavery, and torture. [Marc Bossuyt en Jan Wouters (2005): "Grondlijnen van internationaal recht", Intersentia, Antwerpen enz., p. 92.] [Prosecutor v. Furundžija, International Criminal Tribunal for the Former Yugoslavia, 2002, 121 "International Law Reports" 213 (2002)]

Despite the seemingly clear weight of condemnation of such practices, some critics disagree with the division of international legal norms into a hierarchy. There is also disagreement over how such norms are recognized or established. The relatively new concept of peremptory norms is at odds with the traditionally consensual nature of international law considered necessary to state sovereignty.

Some peremptory norms define criminal offences which are considered to be enforceable against not only states, but individuals as well. This has been increasingly accepted since the Nuremberg Trials (the first enforcement in world history of international norms upon individuals) and now might be considered uncontroversial. However, the language of peremptory norms was not used in connection with these trials - rather the basis of criminalisation and punishment of Nazi atrocities was that civilisation could not tolerate their being ignored, because it could not survive their being repeated.

There are often disagreements over whether a particular case violates a peremptory norm. As in other areas of law, states generally reserve the right to interpret the concept for themselves.

Examples

Execution of juvenile offenders

The case of Michael Domingues v. United States provides an example of an international body's opinion that a particular norm is of a "jus cogens" nature. Michael Domingues had been convicted and sentenced to death in Nevada, United States for two murders committed when he was 16 years old. Domingues brought the case in front of the Inter-American Commission of Human Rights which delivered a non-legally binding report. [The Michael Domingues Case: Argument of the United States, Office of the Legal Adviser, United States Department of State, "Digest of United States Practice in International Law 2001, at 303, 310-13] The United States argued that there was no "jus cogens" norm that "establishes eighteen years as the minimum age at which an offender can receive a sentence of death". [The Michael Domingues Case: Argument of the United States, Office of the Legal Adviser, United States Department of State, "Digest of United States Practice in International Law 2001, at 303, 310-13] The Commission concluded that there was a "jus cogens" norm not to impose capital punishment on individuals who committed their crimes when they had not yet reached 18 years of age." [The Michael Domingues Case: Report on the Inter-American Commission on Human Rights, Report No. 62/02, Merits, Case 12.285 (2002)] The United States has subsequently banned the execution of juvenile offenders, although not necessarily in response to the above non-binding report (Roper v. Simmons).

Torture

The International Criminal Tribunal for the Former Yugoslavia stated in "Prosecutor v. Furundžija" that there is a "jus cogens" for the prohibition against torture. [Prosecutor v. Furundžija, International Criminal Tribunal for the Former Yugoslavia, 2002, 121 "International Law Reports" 213 (2002)] It also stated that every State is entitled "to investigate, prosecute and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction." [Prosecutor v. Furundžija, International Criminal Tribunal for the Former Yugoslavia, 2002, 121 "International Law Reports" 213 (2002)] Therefore, there is universal jurisdiction over torture. The rationale for this is that "the torturer has become, like the pirate and the slave trader before him, "hostis humani generis", an enemy of all mankind." [Janis, M. and Noyes, J. International Law": Cases and Commentary (3rd ed.), Prosecutor v. Furundžija, Page 148 (2006)]

ee also

Universal jurisdiction

References