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Normative Hierarchy in International Law Author(s): Dinah Shelton Source: The American Journal of International Law, Vol.

100, No. 2, (Apr., 2006), pp. 291-323 Published by: American Society of International Law Stable URL: http://www.jstor.org/stable/3651149 Accessed: 05/08/2008 09:29
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LAW IN INTERNATIONAL HIERARCHY NORMATIVE


* ByDinah Shelton sourcefrom of normsbasedon the particular Systemsof law usuallyestablisha hierarchy valfor the fundamental whichthe normsderive.In nationallegalsystems,it is commonplace in conflict the event of a statusandafforded uesof societyto be givenconstitutional precedence administrative rules oradoptedbyadministrative with normsenactedbylegislation regulation; while writtenlaw usuallytakesprecedence themselves must conformto legislative mandates, overunwrittenlaw and legalnormsprevailovernonlegal(politicalor moral)rules.Norms of to the extentpossible.The mode of legalreasonandreconciled equalstatusmustbe balanced thus in is naturallyhierarchical, establishingrelationshipsand order ing applied practice betweennormativestatementsand levelsof authority.1 of normsinvolvesthe fundamenIn the international legalsystem,the questionof hierarchy law and the rulesof recognitionby which law is disof international tal natureand structure in recentyearshavedebatedthis norms that are not from legallybinding.Scholars tinguished did duringthe firstdecadesof the twentiethcenthantheirpredecessors issuemorefrequently of international in when the international concern, tury, legalsystem,the matters participants in in Alfred Verdross wrote were far fewer number. international institutions and ofjus cogens andvigorously "relative wasfirstdiscussed 1937, butthe notionof a moregeneral normativity" in the American in a article Weil landmark criticized JournalofInternaby Prosper published in 1983.2 Pierre-Marie tionalLaw (AJIL) Dupuy has also argued,on the basisof the Statute of the International Courtof Justice(ICJ)and the sovereign equalityof states,thatthereis no rulesareequivalent,sourcesare and that logicallytherecan be none: international hierarchy In contrast, some all from the will of states.3 and are equivalent, procedures equivalent, deriving in Article as a mentioned of the of states authors 53 whole," "community point to the concept of the Vienna Conventionon the Lawof Treaties(VCLT),4as an emergingforce for deterwhile rulesbasedon publicpolicy,5 values,orpublicorder(ordrepublic),6 miningfundamental
* Of the Boardof Editors. L. 566 (1997). in International Law:A Sketch, 8 EUR.J. INT'L MarttiKoskenniemi,Hierarchy 2 in International Law?77 AJIL413 (1983). Relative Weil, Towards Prosper Normativity

in 8 ILM 679 (1969) [hereinafter VCLT]. reprinted 5 Michael Byers, Conceptualising the Relationship Between Jus Cogens and Erga Omnes Rules,66 NORDIC rulesareconstitutionalrulesthat L. 211 (1997), posits thatjus cogens J. INT'L limit the abilityof Statesto createor changerulesof international law, andpreventStatesfromviolatingfunrulesorviolationsof ruleswould be seriously damental rulesof international publicpolicy,when the resulting definethemselves. to the international detrimental legalsystemandhow thatsystem,andthe societyit serves, Id. at 212.
6 SeeJOSEHUMBERTO EN ELDERECHO INTERNACIONAL LANORMADEJUSCOGENS CASTRO VILLALOBOS,

3 PIERRE-MARIE PUBLIC14-16 (1995). DUPUY, DROIT INTERNATIONAL 4 Vienna Convention on the Lawof Treaties,openedfor May 23, 1969, Art. 53, 1155 UNTS 331, signature

on theHierarchy Law, 8 EUR. (Mexico,1981);JuanAntonio CarilloSalcedo,Reflections ofNormsin International J. INT'L L. 583, 586-88 (1997).
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others view necessity as the basis for articulating universal norms, given the growing list of problems that require a rapid and uniform international response.7 This essay examines the extensive debate over hierarchy of norms and sources in international law. It focuses on assertions about the upper and lower extremes of the claimed hierarchical order:first, that there exist superior norms (jus cogensor peremptory norms), overriding other norms and binding all states, including objecting states;8 and, second, that international law includes so-called soft law, that is, normative provisions contained in nonbinding texts. With respect to the first topic, the essay examines theoretical approaches tojus cogensand shows that while the concept is widely supported in the literature, sometimes to an abusive extent, state practice and judicial opinions have been slow to recognize or give legal effect to assertions of such norms. At the same time, a perceptible trend toward discovering peremptory norms has emerged in international and national tribunals, raising a new set of problems about the consequences of such recognition. A review of the literatureas well as the jurisprudence revealsconfusion over the rationale for jus cogensnorms and their source, content, and impact, as well as the interface of such norms with obligations ergaomnesand international crimes. Although it may be appropriatetoday to recognize fundamental norms deriving from an international public order, the extensive assertions of peremptory norms made by some writers and international tribunals, without presenting any evidence to support the claimed superior status of the norms under consideration, pose risks for the international legal order and the credibility of the authors and tribunals. Concerning the second topic, the essay recognizes that states and international institutions increasinglyadopt norms or statements of obligation, in nonlegally binding texts.9 Conversely, they also adopt texts in legally binding form that contain vaguely worded statements of states' commitment to act "progressively," "according to their capacities," or "to the extent feasible." Commentators disagreeon whether these "soft law" texts are law, quasi law, or not law at all.'0 The consequences can be significant. Effective application of the principlepacta suntservanda proceeds from some basic agreement about the nature of"pacta." An examination of practice demonstrates that the mode of adoption does matter and that states consciously choose the form of texts to distinguish those that are legally binding from those that are not. Nonetheless, normative statements contained in nonbinding texts can generate a political impact equal at
7 Jonathan I. Charney, UniversalInternational Law, 87 AJIL 529, 543 (1993). The idea of necessity as a basis for DEVATTEL, LEDROITDESGENSOU PRINCIPES DE LALOINATURELLE imperative norms is not new: EMMERICH ?9 (1758), and CHRISTIAN WOLFF,JUS GENTIUM?5 (1764), both state that there is a necessary law of nations, which is natural to all states, and that all treaties and customs that contravene this necessary law are illegal. 8 See, LAW (1988); NORMS (JUS COGENS)IN INTERNATIONAL e.g., LAURIHANNIKAINEN,PEREMPTORY 2 EUR. J. INT'L L. 42 (1991); Antonio GennadyM. Danilenko,InternationalJus of Law-making, Cogens:Issues G6mez Robledo,Le Ius Cogens International: Sa Genese, Sa Nature,SesFonctions, 172 RECUEILDES COURS 9 COURS 195 (1993 IV). For a dissenting view, see Anthony D'Amato, It's a Bird, It's a Plane, It's Jus Cogens! 6 CONN. J. INT'L L. 1 (1990). 9 See, IN THEWORLD COMMUNITY(1997). e.g., DOUGLASM. JOHNSTON,CONSENTAND COMMITMENT 10See, e.g., COMMITMENTAND COMPLIANCE: THE ROLE OF NON-BINDING NORMS IN THE INTERNATIONAL LEGAL SYSTEM (DinahSheltoned., 2000); SamuelA.Bleicher,TheLegalSignificance ofGenofRe-citation

DES orAgainstTheirWill,241 RECUEIL (1981 III);Christian Tomuschat,Obligations ArisingforStatesWithout

nor Custom: TheEmergence 63 AJIL444 (1969); Hiram E. Chodosh,NeitherTreaty Resolutions, of eralAssembly Declarative International Law,26 TEX.INT'L L.J.87 (1991); RosalynHiggins, TheRoleof Resolutions ofInternaAND THE inthe International inINTERNATIONAL LAW tional in the Process Organizations ofCreatingNorms System, INTERNATIONAL SYSTEM 21, 21 (W. E. Butlered., 1987); G. I. Tunkin, TheRoleofResolutions ofInternational 11 CAL.W.INT'L the Contemporary L.J.445 (1981). Rethinking Dynamics ofNorm-Creation,

in Creating Norms L. Kirgis ona Law,in id. at 5, 12, 14, 17;Frederic Jr.,Custom ofInternational Organizations 81AJIL 146(1987); C.Joyner, U.N.GeneralAssembly Resolutions andInternationalLaw: Christopher SlidingScale,

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law international times to that of legallybindinginstruments and can give riseto customary throughstatepractice. A third, relatedissue,not examinedin depth in this essay,pertainsmore to choice of law normsof equivalent a conbetweenconflicting status,althoughone obviousmeansof resolving to others.11 The flictis to designate one normorsubjectmatterashierarchically superior probof international lem of conflicthasgrownwith the "fragmentation law"'2overtime. As internationallaw hasexpandedinto new subjectareasoverthe pastcentury,with a corresponding conflictshaveincreasingly arisen between of international treaties and institutions, proliferation or across substantive normsorprocedures withina givensubject areas, area'3 subject necessitating to reconcile orrank rules.4 States arefindingit appropriate to designate means thecompeting prefnormswithintreaties or between or to develop choice-of-law erences between different treaties,'5 ofprecedence because almost abound every Conceptual problems purported principle principles.16
l The primacy of the United Nations Charter is set forth in Article 103, which provides that "[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail." This supremacy clause" has been taken to suggest that the aims and purposes of the United Nations-maintenance of peace and security, and promotion and protection of human rights- constitute an international public order to which other treaty regimes and the international organizations giving effect to them must conform. 12 The phrase has been used by the International Law Commission, which took up the topic on the basis of a feasibility study entitled "RisksEnsuing from Fragmentation of International Law,"which was presented at its fiftysecond session in 2000. The Commission subsequently established a study group to work on the issue between 2003 and 2006. Report of the International Law Commission on the Work of Its Fifty-seventh Session, UN GAOR, 60th Sess., Supp. No. 10, at 204, para. 439, UN Doc. A/60/10 (2005). During its consideration of fragmentation, the Commission received and discussed a report on the topic of hierarchy of norms. See, in this issue, Michael J. Matheson, The Fifty-seventhSessionof the International Law Commission, 100 AJIL 416, 422 (2006). 13 Human rights agreements commonly require the balancing or reconciling of different rights, e.g., between the free exercise of religion and the rights of women, or between free speech and expressions of racial and religious hatred. Most international human rights texts establish a certain primacy among human rights norms through the use of nonderogation provisions, limitation clauses, and restrictions on reservations. To these provisions, supervisory bodies have added the suggestion that "core" rights and obligations should be given priority in implementation. For derogations provisions, see International Covenant on Civil and Political Rights (ICCPR), Dec. 16, 1966, Art. 4,999 UNTS 171; American Convention on Human Rights, Nov. 22, 1969, Art. 27, 1144 UNTS 123; and European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, Art. 15,213 UNTS 221. On core human rights provisions, see the General Comments of the Committee on Economic, Social and Cultural Rights, available at <http://www.ohchr.org/english/bodies/treaty/index.htm>. 14 See, e.g., Theodor Meron, On a Hierarchy of International Human Rights, 80 AJIL 1 (1986); Bernard H. Oxman, Complementary Jurisdiction, 95 AJIL 277 (2001). Agreementsand Compulsory 15 Article 103 ofthe NorthAmerican FreeTradeAgreement (NAFTA),Dec. 17,1992, Can.-Mex.-U.S., 107 Stat. 2066, 32 ILM 289, 605 (1993), reaffirms the parties' "existing rights and obligations with respect to each other under the GeneralAgreementon Tariffi and Trade [GATT] and other agreements to which such Parties are party," but the article also states that the NAFTA prevails over those agreements in the event of an inconsistency. Chapter 1, Objectives, of which Article 103 is a part, also provides that in the event of an inconsistency, certain listed international environmental agreements take precedence over the NAFTA(Art. 104), but parties must choose the actions least inconsistent with the NAFTA obligations. The NAFTA also includes an optional selection clause for NAFTA dispute resolution procedures when the disputes concern measures adopted or maintained by a party to protect its human, animal, or plant life or health, or its environment, and raise factual issues concerning the environment, health, safety, or conservation. NAFTA, supra, Art. 2005(4). 16 The VCLT provides that generally the later-in-time treaty should prevail when the two instruments concluded by the same parties relate to the "same subject-matter," subject to the primacy of the UN Charter. However, determining when two or more instruments relate to the same subject matter can be problematic. Interpretive rules are sometimes suggested to reconcile the conflicts that emerge, or express provisions may address the issue. Some treaties, like the Vienna Convention on Consular Relations, Apr. 24, 1963, 596 UNTS 261, expressly preserve earlier agreements concluded by any of the parties. Conversely, some, like the Convention on the Law of the Sea, in Article 311 (1), expressly override the prior treaties. United Nations Convention on the Law of the Sea, openedforsignature Dec. 10, 1982, Art. 311(1), 1833 UNTS 397 [hereinafter LOS Convention]. Paragraph6 of the same article provides that the states parties agree that the basic principles relating to the common heritage of mankind shall not be subject to amendment, nor shall the parties enter into any agreement in derogation thereof. A third option, used in the 1944 Chicago Convention on Civil Aviation, Dec. 7, 1944, TIAS No. 1591, 15 UNTS 295, requires parties

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derogat (e.g., lexspecialis lexgenerali)has exceptionsand no rule establisheswhen to apply the principle and when to apply the exception. Apart from treaty provisions, claims of primacy may be made by those involved in promoting or ensuring respect for a particular body of international law. Some human rights institutions, for example, have assertedthe priority of human rights guaranteesin general over other international law, without necessarilyclaiming that the entire body of law constitutesjus cogens. The UN Committee on Economic, Social and Cultural Rights, in a 1998 statement on globalization and economic, social, and cultural rights,17declared that the realms of trade, finance, and investment are in no way exempt from human rights obligations. The Committee's concerns were raised a second time in a statement urging members of the World Trade Organization (WTO) to adopt a human rights approach to trade matters, asserting that the "promotion and protection of human rights is the first responsibility of Governments."18 The Sub-Commission on the Promotion and Protection of Human Rights has similarly affirmed the "centralityand primacy of human rights obligations in all areasof governance and development, including international and regional trade, investment and financial policies, The Commission on Human Rights has stated that "the exercise agreements and practices."19 of the basic rights of the people of debtor countries to food, housing, clothing, employment, education, health services and a healthy environment cannot be subordinated to the implementation of structural adjustment policies and economic reforms arising from the debt."20The UN special rapporteurs on globalization and its impact on the full enjoyment of human rights forthrightly state that "[t]he primacy of human rights law over all other regimes of international law is a basic and fundamental principle that should not be departed from."21 The assertedprimacy of all human rights law has not been reflected in state practice. If eventually accepted, it will reject the notion of lex specialisfor trade or other fields where states can claim to be free from human rights obligations. It could also profoundly affect the work of all international organizations, which commonly claim to be governed only by their constituting legal instruments and the mandate therein conferred. In addressingnormative hierarchyas well as choice of law, there is apparentlya focus on process, because the identification of legal norms and their relative normativity is achieved by considering the procedural norms that allow recognition of substantive rules. State agreement on
of customsunions and free to denounceinconsistentagreements. GATTArticleXXIV permitsthe establishment on TariffsandTrade,Oct. 30, 1947, TIASNo. 1700, 55 UNTS 187. Article31 (3) tradeareas. GeneralAgreement of the Conof provisions interse to modifyor suspendthe operation of the LOSConvention,supra, permitsparties is incompatible with the effecthatsuchagreements whosederogation do not relateto a provision vention,provided must not affectthe tive executionof the objectand purposeof the Convention.In addition,any such agreement of the basicprinciplesof the Conventionor the enjoymentby otherpartiesof theirrightsor the perapplication the allowothertreatiesto enhanceobligationsregarding formanceof theirobligations.Finally,some agreements See,e.g.,ILO Const.Art. 19(8); BerneIntellectual Property subjectmatterbut prohibitanyloweringof standards. Convention, 1886, Art. 20. 17 UN Comm. on Economic,Socialand Cultural para.5 (May 11, 1998), Rights,Statementon Globalization, at <http://www.globalpolicy.org/globaliz/define/unstate.htm>. 6 INT'L HUM.RTS.REP.1176 (1999),available 18 UN Comm. on Economic,SocialandCultural Conference of the Rights,Statementto the ThirdMinisterial World TradeOrganization (Nov. 26, 1999), UN Doc. E/C.12/1999/9, para.6. 19 UN Sub-comm'n on the Promotionand Protectionof Human Rights,Human Rightsas the Primary Objective of Trade,Investmentand Financial Policy, UN Doc. E/CN.4/Sub.2/RES/1998/12. 20 UN Comm'n on Human AdjustmentPoliciesand ForeignDebt on the Full Rights,Effectsof Structural Economic,Socialand CulturalRights,Res. 2000/82, para.6, UN Enjoymentof All Human Rights,Particularly 56th Sess.,Supp. No. 3, at 331, 333, UN Doc. E/CN.4/2000/167-E/2000/23. ESCOR, 21 UN Sub-comm'n and Its Impacton the on the Promotionand Protectionof Human Rights,Globalization andDeepikaUdagama, UN of HumanRights,preliminary submittedbyJ. Oloka-Onyango FullEnjoyment report Doc. E/CN.4/Sub.2/2000/13, para.63.

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the means to identify binding international obligations was formulated initially in the Statute of the Permanent Court of InternationalJustice (PCIJ) and iterated in the Statute of the International Court of Justice. These texts direct that international disputes be resolved primarily through the application of international conventions and international custom.22 They make no reference to hierarchy, except by listing doctrine and judicial decisions as "subsidiary"and evidentiary sources of law. Although the ICJ Statute is directed at the Court, it remains today the only general text in which states have acknowledged the authoritative procedures by which they agree to be legally bound to an international norm. It remains for proponents to demonstrate the existence of an accepted hierarchy in practice or other means of creating legal norms. This essay is organized to look firstat the literatureon normative hierarchy,especially as published in the AmericanJournal oflnternational Law during its first century. It then proceeds to examine the doctrine and growing jurisprudence on peremptory norms before turning to the issue of soft law. The conclusion attempts to describe the present system and espouses the need for more rigorous presentation of evidence about the claimed superiority or legal value of specific norms, an essential taskwhen the apparentgoal is to impose such norms on nonconsenting states.
I. EARLYWRITINGS ON SOURCES OF INTERNATIONALLAW AND HIERARCHY

Articles published in the AJIL during the first decades of the twentieth century revealed enthusiasm for the codification of international law as a means of bringing more detail and certainty to obligations,23 and a consequent shift from custom to treaty as the primaryinstrument of law creation. Yet, for all the emphasis on positive law, many authors revealed a belief that such law derives from and is inferior to international morality or natural law precepts.24The existence of a common reservoirof universal principles governing "civilized nations" and on which the positive law is based seems to have been taken for granted.25
Generalprinciples of law area third,morerarely law, andjudicialdecisionsand used,sourceof international teachingsof highlyqualifiedpublicistsprovideevidenceof the existenceof a norm. SeeICJStatuteArt. 38. 23 sucha codewasDavidDudleyField,who published DraftOutlinesof an InterAmongotherswho attempted nationalCode with some 1008 articles in 1872. See,e.g.,ErnestNys, TheCodification 5 AJIL ofInternationalLaw, of codification effortsfromthe mid-nineteenth 871, 886 (1911). Otherdiscussions centurycanbe found in Amos S. Hershey, 6AJIL30,51-53 (1912); ManleyO. Hudson, History ofInternationalLawSincethePeaceof Westphalia, TheDevelopment Law Sincethe War,22 AJIL330, 339-50 (1928); HerschLauterpacht, ofInternational Codificationand Development Law, 49 AJIL16 (1955). of nternational 24 for custom to Nys, supranote 23, at 874 (citingGermanauthorKarlGottlob Guentheron the requirement conformto morality).Fora response and no longerhasa role,see Lassa thatthe "lawof naturehas playedits part" Law:Its TaskandMethod,2 AJIL313, 327-30 (1908). For a historical Oppenheim,TheScience ofInternational discussion of theviewthatnatural lawis anterior andsuperior to positivelaw,seeJohnP. Humphrey,On theFoundationsofInternational Law, 39 AJIL231 (1945). 25 andvaluesof the earlytwentiethcenturyappearto represent lessthan immuThe assumptions considerably one hundredyearslater.Considerthe following: tablenaturallaw when evaluated Warhashad and mayyet haveits good issues.Its truefunctionhas been to weld familiesinto tribes,tribes into nationsand nationsinto larger It is probablethat in the "grand schemeof thingsentire"it sovereignties. hasnot yet exhausted its properactivities. So long as the so-calledinferiorraces exist,theremustgo on a somewhatdifferenttreatment or elsethe unfitwill inhabitthe choiceplaces of themthanwe accordto the superior, of the earth,and crowdout the relatively morehighlycivilized.Eitherour treatment of the Indianswaspracof theirfathers-a conclusion tribesthe inheritance ticallyright,or we should now restoreto the remaining so practically absurdas to shakethe premisefromwhich it is derived. R. FloydClarke, A Permanent ItsNecessity andValue,1AJIL342,348 (1907). TribunalofInternationalArbitration:
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The well-known Martens clause testifies to belief in common values.26Agreement on an international ordrepublic or set of fundamental principles can also be seen in the period following World War I, when international lawyers considered the trial and punishment of those who had committed war crimes or were deemed responsible for the war, including the German emperor. A commission of the Peace Conference reported that the war carriedon by the Central Powerswas conducted by "barbarous or illegitimate methods in violation of the established laws and customs of war and the elementary laws of humanity."27According to the commission, "All persons belonging to enemy countries, however high their position may have been, without distinction of rank, including Chiefs of States, who have been guilty of offences against the laws and customs of war or the laws of humanity, areliable to criminal prosecution."28Article 227 of the treaty with Germany thereafter provided: The Allied and Associated Powers publicly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and the sanctity of treaties.A special tribunal will be constituted to try the accused, thereby assuring him the guaranteesessential to the right of defence. It will be composed of five judges, one appointed by each of the following Powers: namely, the United States of America, Great Britain, France, Italy and Japan. In its decision, the tribunal will be guided by the highest motives of international policy, with a view to vindicating the solemn obligations of international undertakings and the validity of international morality.29 Notably, the emperor was not accused of violating the laws and customs of war, but of what would laterbe called "crimesagainst peace."One question that perplexed those considering the matter was whether or not a defense of superior orders should or would be allowed those accused of committing a war crime.30It was argued that "justice"requirespunishing the officer responsible for the order, but also that, on the basis of accepted principles of jurisprudence, a plea of superior orders should not exonerate the accused. International law was seen as establishing higher norms that must be obeyed. Others wrote more generally of the underlying natural principles that could guide the postwar international society and from which positive norms could be developed.31
The Martens clausewasinserted on the lawsandcustomsof warbecause"theHigh Contractinto agreements do not intendthatunforeseen casesshould,in the absenceof a writtenundertaking, be left to the clearly ing Parties Thus, it read: arbitrary judgmentof militarycommanders." Until a morecompletecode of the lawsof warhasbeenissued,the High Contracting deem it expeParties dient to declarethat, in casesnot includedin the Regulations and the beladoptedby them, the inhabitants ligerentsremainunderthe protectionand the ruleof the principlesof the law of nations,as they resultfrom the usagesestablished amongcivilizedpeoples,fromthe lawsof humanity,and the dictatesof the publicconscience. Oct. 18, 1907, Convention(No. IV) Respecting theLawsandCustomsof Waron Land,with annexof Regulations, pmbl., 36 Stat.2277, 1 Bevans631.
26

27COMMISSIONON THE RESPONSIBILITY OF THE AUTHORS OF THE WAR AND ON ENFORCEMENT OF REPORTPRESENTED TO THE PRELIMINARY PEACE CONFERENCE PENALTIES, (Mar. 29, 1919), reprintedin 14 AJIL 95, 115 (1920).
28 Id. at 117. The two U.S. members fromthe stateof the commissiontook a morepositivistviewanddissented ment that individuals could be triedfor havingviolatedthe "lawsof humanity." Id. at 134. 29James W. Garner, Punishment theLawsand Customs of War,14AJIL70, 91 (1920) (quotofOffendersAgainst Powersand Germany(Treatyof Versailles), June28, 1919, ing Treatyof PeaceBetweenthe AlliedandAssociated to extradite Art. 227, 225 Consol. TS 189). The government of the Netherlandsrefused the emperor,andhe was nevertried.

30
31

Id. at 82-85.

15 AJIL 349 (1921), andhis earlier See,e.g.,GordonE. Sherman,TheNatureandSources ofInternationalLaw, and International article Jus Gentium Law, 12 AJIL56 (1918).

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The pre-World War I belief in common values of civilized nations was challenged by the increasing division of independent states into democratic, fascist, and communist regimes and by the actions of some of those regimes. In a tragic recitation, James Wilford Garner in 1939 listed some of the German and Austrian professors of international law dismissed from their Among positions by the Nazis, most of them on the sole basis that they were "non-Aryan."32 them, luminaries such as Hans Kelsen, Martin Wolff, GeorgJellinek, Walther Schiicking, and Alfred Verdross were compulsorily removed from their university positions. Verdross had just published his influential article Forbidden Treatiesin International Law.33 In the aftermathof such events and the cataclysm of World War II, many saw an even greater need to articulate or reassertthe fundamental higher norms of international law, which had been blatantly transgressed. Quincy Wright wrote that superior principles of justice determined by the international community formed part of the Nuremberg judgment, and such principles are a source of law.34At Nuremberg, the U.S. Military Tribunal suggested that any treaty between Germany and the French Vichy government that approved the use of French prisoners of war in the German armaments industry would have been void under international law as contraireaux bonnesmoeurs.35 Apart from considering wartime atrocities, commentators pointed to the emergence of new states as making the international community increasingly heterogeneous, necessitating some consensus on basic values. It was also and especially essential to coordinate competing ideologies in the new nuclear era. In this context, the international legal order required boundary principles that would limit state sovereignty. The fact of limits in law, a superstructureor international public order, a matter previously implicit among states with a common history and traditions, needed to be made explicit. This claim of superior norms that override treaty and custom, or provide an excuse to breach an obligation,36 continues to be discussed and debated. II. JUS COGENS In Theory The theory ofjus cogensor peremptory norms37posits the existence of rules of international law that admit of no derogation and that can be amended only by a new general norm of international law of the same value. It is a concept that lacks both an agreed content and consensus in state practice. In most instances it is also an unnecessaryconcept because, as discussed further below, the derogating act violates treaty or custom and thus contravenes international law without the need to label the norm peremptory. Development of jus cogens. The notion ofjus cogensoriginated solely as a limitation on international freedom of contract. It was discussed at length for the first time by Verdross
JamesWilfordGarner,TheNazi Proscription Law, 33 AJIL112 (1939). ofInternational of German Professors Alfredvon Verdross, Forbidden Treaties in International Law, 31 AJIL571 (1937). 34 42 AJIL405 (1948); seealsoQuincyWright, and theNurembergJudgment, QuincyWright,LegalPositivism waris prohibitedby a ruleof international TheLawoftheNuremberg law, Trial,41 AJIL38, 54 (1947) (aggressive principlesof justice"). restingupon "general
32 33

35 United States v. THE NUREMBERG MILITARY TRIBUNALS BEFORE OF WAR CRIMINALS Krupp, 9 TRIALS UNDER CONTROLCOUNCILLAWNO. 10, at 1395 (1950). The statement was dicta because no such agreement was ever found, but the case representsthe first majority opinion to suggest limitations on freedom to contract treaties. 36 See Helen Silving, In re Eichmann: A Dilemma of Law and Morality, 55 AJIL 307 (1961). 37 The terms jus cogensand peremptory norms are used interchangeably. Article 53 of the VCLT, supra note 4, is entitled "Treaties conflicting with a peremptory norm of general international law (jus cogens)."

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in 1937.38 Even prior to this, however, Quincy Wright had noted the problem of "illegal" treaties, based on a 1916 judgment39 of the Central American Court of Justice denying the capacity of Nicaragua to conclude the 1914 Bryan-Chamorro Treaty with the United States.40The Court held that Article 2 of the Treaty, which gave the United States a ninetynine-year lease on a naval station on Nicaraguan territory in the Gulf of Fonseca, could not be applied because it derogated from the customary international law rights of Salvador and Honduras to condominium in the gulf. The Court also agreed with Costa Rica that Article 1 of the Treaty conflicted with an 1858 treaty between Costa Rica and Nicaragua that protected boundary waters. The decision in favor of Costa Rica upheld the earlier treaty. In his commentary Wright appears to agree with de Visscher that custom and treaties may create "objective" rules of international law that are of universal and permanent applicability, but he notes that the treaty was affecting the rights of nonsignatories and finds this fact a proper ground for the Court's decision. Judge Schiicking's well-known dissent in the PCIJ's Chinn case, in which he argued that the Court should refuse to enforce an agreement contrary to international public policy, was also influential and specifically cited by Verdross.41 Verdross's article was written in response to a report on the law of treaties42that had failed to discuss the problem of a treaty in conflict with general international law. According to Verdross, freedom to conclude treaties could be limited only if general international law contained rules that have the characterofjus cogens.He took a practical approach to the question: finding nothing in theory to preclude the possibility of such rules, he looked to see whether international law had established such rules in practice. He concluded that compulsory norms of customary international law, such as freedom of the high seas, would work to invalidate any agreement in which two or more states sought to exclude other states from the use of the high seas.43 It is not clear, however, why a doctrine ofjus cogensis necessary to refuse enforcement of treaties of this type. The law of treaties has long held that states cannot by treaty affect the rights of third states without their consent, a rule now codified in VCLT Articles 34-35. Verdross's other category ofjus cogensconsisted of general principles of morality or public a concept more in keeping with policy "common to the juridical orders of all civilized states,"44 laterwritings on the topic. He grounded recourse to these ethical standardsin the reference to generalprinciples of law recognized by civilized nations in the Statute of the PCIJ. He acknowledged the difficulty of finding common ethical rules among members of the international community, but found an "unequivocal"common principle in the decisions of national courts that everywhere regard treaties as invalid if they "restrictthe liberty of one contracting party in an
38Verdross, to this subjectthreedecadeslaterastheViennaConventionon the note 33. Verdross returned supra Lawof Treatieswas beingnegotiated. AlfredVerdross, Law,60 Jus DispositivumandJusCogensin International Verdross, AJIL55 (1966) [hereinafter Jus Dispositivum]. 39CostaRicav. Am. Ct.Justice andreprinted in 11 AJIL181 (1917). (Central Sept.30, 1916),translated Nicaragua 40 11 AJIL566 (1917). Between International Law and Treaties, Quincy Wright, Conflicts 41OscarChinn, 1934 J. dissenting).For a discussion,see H. PCIJ(ser.A/B) No. 63, at 149-50 (Schiicking, Lawin theJurisprudence ArthurSteiner,Fundamental Courtof nterConceptions of thePermanent of nternational national Justice,30 AJIL414, 417-19 (1936). 42TheLaw Treaties, Harvard Research in International Law, 29 AJILSupp. 655 (1935). of 43 haverespondedthat it is unnecessary to haverecourseto jus cogens when a Quincy Wrightwould probably law becausethose affectedwould to deny thirdpartiestheirrightsundercustomary international treatypurports not havegiven theirconsentto the "newrule"and thus the agreement would not be enforcedagainstthem. 44Verdross, at note 572. 33, supra

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excessive or unworthy manner or ... endanger its most important rights."45To ascertain which international treaties are immoral, Verdross sought to determine the moral tasks states must accomplish, to seek the ethical minimum. He listed maintenance of law and order within the state, defense against external attack, care for the bodily and spiritual welfare of citizens at home, and protection of citizens abroad. Any treaty that would prevent a state from fulfilling one of these essential tasks would be regarded as immoral.46 In the considerable literaturethat has materializedsince the appearanceofVerdross's article, the concept of jus cogenshas received widespread support, without any agreement or clarity about its source, content, or impact.47 norms.Verdross viewed the source of peremptory norms as residing in Sourcesofperemptory generalprinciples of law recognized by all legal systems. Others believe peremptory norms arise from consent, natural law (jus necessariumpro omnium), international public order, or constiA tutional principles.48 strictly voluntarist view of international law rejects the notion that a state may be bound by 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.49 Indeed, international law has traditionally been defined as a system of equal and sovereign states whose actions are limited only by rules freely accepted as legally binding. The PCIJ, in one of its early 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."50As recently as 1986, the ICJ reaffirmedthis approach with respect to the acquisition of weaponry by states. In the Nicaragua Judgment the Court stated: "[I]n 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."51 The only referencesto peremptory norms in international texts arefound in the Vienna conventions on the law of treaties and they can be read largely to support a voluntarist basis forjus cogens.An early rapporteur on the law of treaties of the International Law Commission proposed that the ILC draft convention on the law of treaties include a provision voiding treaties contrary to fundamental principles of international law.52This proposal clearly took a nonconsensual approach, as it constituted a challenge to the view that states have the right inter
45 Id. at 574. Verdross may well have had in mind the Austrian capitulation to Nazi Germany.

Writing during the Great Depression, Verdross made reference specifically to the immorality of an obligation to pay foreign debts to the point that essential public services were affected within a state. Id. at 575. 47 See JERZY AND THE VIENNA CONVENTION ON THE LAWOF TREATIES SZTUCKI, (1974). JUS COGENS 48 For an excellent discussion of these theories, see Robert Kolb, Theoriedu Ius Cogens International, 2003 REV. BELGE DE DROITINTERNATIONAL 5, 14-28. For a "constitutional" approach to jus cogens,see Stefan Kirchner, Relative Normativity and the Constitutional Dimension of nternational Law: A Placefor Valuesin the International Legal System?5 GERMAN.L.J. 47 (2004). 49 Louis Henkin, InternationalLaw: Politics, Valuesand Functions, 216 RECUEIL DES COURS 9, 45 (1989 IV); Weil, supra note 2; Danilenko, supranote 8, at 42; I. I. Lukashuk, ThePrinciple Pacta Sunt Servanda and the Nature of Obligation Under International Law, 83 AJIL 513 (1989). 50 S.S. Lotus (Fr. v. Turk.), 1927 PCIJ (ser. A) No. 10, at 18 (Sept. 7). 51 and ParamilitaryActivities in andAgainst Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ REP. 14, 135, Military para. 269 (June 27). 52 Sir Humphrey Waldock proposed the concept and three categories ofjus cogens:(1) illegal use of force, (2) international crimes, and (3) acts or omissions whose suppression is required by international law. The categories were dropped by the ILC, because each garnered opposition from at least two-thirds of the Commission. See SZTUCKI, supranote 47; Richard D. Kearney & Robert E. Dalton, The Treatyon Treaties,64AJIL495, 535 (1970).

46

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se to opt out of any norm of general international law. At the same time, it did not identify the basis.forcreating or determining "fundamental principles of international law." The proposal represented"progressivedevelopment" of international law ratherthan codification of existing state practice.53 The provisions eventually adopted at the Vienna Conference on the Law of Treaties limited the ability of states to escape fundamental norms, but they also established state consent as the foundation for such rules. Article 53 of the 1969 VCLT, concerning treaties between states, provides that a treatywill be void "if, at the time of its conclusion, it conflicts with a peremptory norm of general international law."54Such a norm is defined by the VCLT as one "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 interArticle 64 adds that the emergence of a new perempnational law having the same character."55 tory norm of general international law will void any existing treaty in conflict with the norm.56 Thus, Article 53 demands that there first be established a norm of general international law and, second, that the international communityofstates as a whole agree that it is a norm from which no derogation is permitted. While this definition precludes an individual state from vetoing the emergence of a peremptory norm, it sets a high threshold for identifying such a norm and bases the identification squarely in state consent. Even so limited, the concept was controversialfrom the start57and divided the Vienna Conference on the Law of Treaties. Strong support came from the Soviet bloc and from newly independent states, which saw it as a means of escaping colonial-era agreements. Western countries were less positive and severalexpressed opposition to the notion of peremptory norms, voting against the provision58 and withholding ratification of the treaty because of persisting objections to the concept.59 To date, the VCLT has garnered 108 ratifications, a little over half the countries of the world. The drafting of the second treaty on treaties, the 1986 Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations, indicated continued controversy among states over the concept ofjus cogens.The text proposed by the ILC included provisions onjus cogensmodeled after those of the 1969 VCLT. The commentary called the prohibition of the illegal use of armed force embodied in the UN Charter "the most reliable known example of a peremptory norm" and also claimed that the notion of peremptory norms, as embodied in VCLT Article 53, "hadbeen recognized in public international law before the Convention existed, but that instrument gave it both a precision and a substance which made the notion one of its essential provisions."60The representative
Gomez Robledo,supranote 8, at 17, calledit "uneinnovationprofondeet un grandpas franchi." 54VCLT,supranote 4, Art. 53. 55 Id. 56Id.,Art. 64. 57 Contrast note 38, and Egon Schwelb,SomeAspects the viewsof Verdross, supra oflnternationalJus Cogensas InterFormulated 61 AJIL946 (1967), with thoseof GeorgSchwarzenberger, Commission, bytheInternationalLaw law on the level of 43 TEX.L. REV.455, 467 (1964-1965) ("Theevidenceof international nationalJusCogens? international societyfailsto bearout any claimfor the existenceof international jus cogens.") unorganized 58 Of the 110 statesthat in the plenarysecondsessionof the ViennaConference,87 voted in favor participated andTurArticle50) and8 against(includingAustralia, ofArticle53 (thennumbered Switzerland, Belgium,France, CONFERENCE NATIONS key).Therewere 12 abstentions(includingJapanand the United Kingdom).UNITED
53

ON THE LAW OF TREATIES,OFFICIALRECORDS,SECOND SESSION 107, UN Doc. A/CONF.39/11/Add.1 (1969), UN Sales No. E.70.V.6 (1970).

60 2 UNITED NATIONS CONFERENCE BETWEEN STATES AND INTERNATIONAL ON THE LAWOF TREATIES ORGANIZATIONS OR BETWEENINTERNATIONAL OFFICIALRECORDS39, 44, UN Doc. ORGANIZATIONS,

59The VCLT was adoptedby a vote of 79-1-19. 1969 UN Y.B. 734.

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of France challenged that claim during the plenary drafting session, expressing his government's opposition to Article 53 "becauseit did not agreewith the recognition that article gave while another government calledjus cogens"still a highly controversial concept tojus cogens," which raisedthe fundamental question of how to recognize the scope and content of a peremptory norm of general international law," noting that time had revealed "a divergence of views since 1969 regarding the nature of norms of jus cogens,which it had not been possible to define."6' The text of the Convention was adopted by 67 to 1, with 23 abstentions; it has yet to enter into force. Severalstates explained their abstention by referringto the articles concerningjus cogens,including the dispute settlement provisions on the topic.62 Even some of those that favoredjus cogensexpressed uncertainty. The representative of Brazil called jus cogens"a concept in evolution."63 Various scholarshave convincingly argued that the language ofVCLT Article 53 establishes a purely consensual regime for the creation of peremptory norms and that as a progressive development in international law the provision binds only states parties to the Vienna Convention.64 Some authors have gone further to argue that as a result of the progressive nature of the provision and its consensual formulation, neither nonparties to the VCLT nor new states are bound by peremptory norms to which they object,65which seems incompatible with the objective of creating norms from which no derogation is possible. Eric Suy has proposed perhaps the most plausible and creative solution to this issue, reconciling the consensual approach of the VCLT and the less positivistic approach discussed in the next few paragraphs.Suy distinguishes public order norms fromjus cogensnorms. In his view, no society, international or otherwise, can live without at least a minimum of fundamental principles that exert a higher has a place only in the law of treaties.What exists outside value in the legal system, butjus cogens law is the international order, treaty public consisting of principles and rules whose enforcethe ment is of such vital importance to international community as a whole that any unilateral action, or any agreement that contravenes such a principle, can have no legal force. Any breach of such a public order norm would fall in the realm of state responsibility.66
A/CONF. 129/16/Add. 1 (Vol. II) (1986). According to the commentary, "It is apparent from the draft articles that peremptory norms of international law apply to international organizations as well as to States, and this is not surprising." Id. at 39. 61 1 id. at 17, UN Doc. A/CONF. 129/16 (Vol. I). See also the concerns expressed by Germany, and similar objections raisedto Article64, which concerns the emergenceofa new peremptorynorm ofgeneral internationallaw. Id. at 17. 62 Id. at 186-94. 63 Id. at 188. 64 Wladyslaw Czaplinski, Conceptsof Jus Cogens and ObligationsErga Omnes in InternationalLaw, 1997-1998 POLISHY.B. INT'L L. 87, notes the objections made during the travauxprtparatoiresof the VCLT and the claims of several states that the proposal on jus cogensconstituted a progressive development (Argentina, Mali, and Sierra Leone). He concludes: "It seems manifest that jus cogensdid not constitute part of customary law before the concluding of the Vienna Convention and it binds exclusively parties to the Convention." Id. at 88. He adds: "Generally speaking, states are not particularly wishing to invalidate their international obligations because of their hypothetical non-conformity withjus cogens."Id. at 89. 65 FARHADMALEKIAN, OF INTERNATIONAL THE SYSTEM LAW:FORMATION, TREATIES, RESPONSIBILITY, sec. 2.2.1.2 (1987). "The International Law Commission, in its draft proposal on the law of treaties, concluded that the rules of internationaljus cogensare the consequences of international positive law." As a result of this purely consensual regime, new states are able to accept or reject the general norms of peremptory character. Id., sec. 2.2.1.4. In addition, becausejus cogensnorms must represent the general will of the community of states as a whole, there cannot be regional peremptory norms. Mosler disagrees about the consequences ofjus cogenson new states, conJAHRBUCH sidering that they are bound. Hermann Mosler, Jus Cogens im Volkerrecht,1968 SCHWEIZERISCHES FURINTERNATIONALES RECHT9, cited in HEINRICHBERHANDREIMANN,IUS COGENS IM V6LKERRECHT 46 (1971). 66 Eric Suy, Remarks, in CHANGEAND STABILITY IN INTERNATIONAL LAW-MAKING 97 (Antonio Cassese & Joseph H. H. Weiler eds., 1988).

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Many scholars 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.67 Without a source of this norm outside consent, there is an unavoidable circularity of reasoning.68 Some scholars object that positivism does not adequatelydescribethe realityof the currentinternationalorder.According to ChristianTomuschat, "[T]he cohesive legal bonds tying States to one another have considerably strengthened since the coming into force ofthe United Nations Charter. ... [T]oday a community model of international society would seem to come closer to reality than [at] any time before in history."69 The community consists of states that live within a legal framework of a few basic rules that nonetheless allow them considerable freedom of action. Out of the community come common values and fundamental principles that bind the entire society. It is certainly rational to accept that such a framework has become necessary in the light of global problems threatening human survival in an unprecedented fashion.70 The emergence of global resource crises, such as the widespread depletion of commercial fish stocks, the destruction of the stratosphericozone 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 ongoing production and sale of banned substances.71Recalcitrant states not only profit by rejecting regulatory regimes adopted by the overwhelming majority of states, they threaten the effectiveness of such regimes and pose risks to all humanity. The traditional consent-based international legal regime lacks a legislature to override the will of dissenting states, but efforts to affect their behavior are being made, first, through the doctrine of peremptory norms or universal law72applicable to all states, and, second, through expanding the concept of international law to include soft law. The same approach may be taken toward states seeking to denounce, or acting to violate, multilateral agreements that reflect widely and deeply held values, such as those guaranteeing human rights or expressing humanitarian law. In sum, the source of peremptory norms has been variously attributed to state consent, natural law, necessity, international public order, and the development of constitutional principles. The different theories lead to considerably different content forjus cogensnorms and consequences for their breach. Thecontentof jus cogens. Neither the International Law Commission nor the Vienna Conference on the Law of Treaties developed an accepted list of peremptory norms, although both made reference in commentaries and discussion to the norms against genocide, slave trading, and use of force other than in self-defense. Some developing countries referredto permanent
67 HANS KELSEN, THE PURETHEORY OF LAW214-17 (Max Knight trans., 2d rev. ed. 1967) (1937). Oscar Schachter identified thirteen theories about the origin of obligation in international law. Oscar Schachter, Towards a Theoryof International Obligation, 8 VA. J. INT'L L. 300 (1968). 68 A natural-law origin of international obligation was the dominant theory among scholars until the nineteenth century, when positivism and an emphasis on the sovereignty of states emerged in theory and practice. 69 Tomuschat, supra note 8, at 210-11. 70 Georges Abi-Saab groundsjus cogensin necessity. He askswhether avoluntarist legal system can govern modern international relations and responds: "I think this is an impossibility. ... In any case, it no longer reflects or faithfully describes the actual system of international law."Jus cogensis necessary, because the international legal system must have a structure, and cannot avoid establishing a certain hierarchy of its norms. Georges Abi-Saab, Remarks, in IN INTERNATIONAL CHANGEAND STABILITY LAW-MAKING, supra note 66, at 96. 71 at note 530. 7, Charney, supra 72 The term "universal law" is used by Charney, supra note 7, to refer to rules that bind all states, even those that object to the rule.

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sovereignty over natural resources as a peremptory norm.73 The different theories as to the source of peremptory norms affect the contents; those who adhere to the voluntarist approach generallysee the content as limited to a few rules that states have recognized as not being subject to derogation, reservation, or denunciation. Natural law proponents would subscribe to an even stricter list of immutable principles of justice. In contrast, theories based on community values result in a longer list of evolving norms. Eduardo Jimenez de Arechaga posits that "[t]he substantive contents ofjus cogensare likely to be constantly changing in accordance with the progress and development of international law and international morality."74 Since the adoption of the Vienna Convention, the literature has abounded in claims that additional international norms constitutejus cogens.Proponents have argued for the inclusion of all human rights, all humanitarian norms (human rights and the laws of war),75or singly, the duty not to cause transboundary environmental harm, freedom from torture,76the duty to assassinatedictators,77the right to life of animals, self-determination, the right to development,78 free trade,79and territorialsovereignty (despite legions of treatiestransferringterritory from one state to another).80 During the Cold War, Soviet writers asserted the invalidity of treaties that conflicted with the "basic principles and concepts" of international law, defined to include universal peace and security of nations; respect for sovereignty and territorialintegrity; noninterference in internal affairs;equality and mutual benefit between nations; andpacta sunt servanda. Examples of invalid agreements included the NATO pact, the peace treaty between the United States and Japan, the SEATO agreement, and the U.S.-UK agreement on establishing air bases.81In most instances, little evidence has been presented to demonstrate how and why the preferred norm has become jus cogens. Wladystaw Czapliniski correctly
73 The tribunalin theAminoilv.Kuwaitcase the claimthat rejected judgmentof March24, 1982, of the arbitral Oil constitutes KuwaitandAm. Independent overnatural resources a principle ofjus cogens. permanent sovereignty Co., 21 ILM 976 (1982) (Reuter,Sultan,& Fitzmaurice arbs., 1982). 74 E. in Public International de Arechaga, General Course DESCOURS Law, 159 RECUEIL 9, 67 (1978 I). Jimenez 75 In his laterarticle fora humanon the topic,Verdross of that "all rules international lawcreated argued general itarianpurpose" Verdross, constitutejuscogens. Jus Dispositivum,supranote 38, at 59. 76 Erikade as an International Norm of Jus Cogens and Its Implications Wet, TheProhibition for of Torture L. 97 (2004). Nationaland International Law, 15 EUR.J. INT'L Customary 77 LouisRene Beres, InterIsrael s RightsUnder Jerusalem Against Duringthe GulfWar: Prosecuting IraqiCrimes in specifiedcircumL. 337 (1992) (jus cogens & COMP. nationalLaw, 9 ARIZ. J. INT'L obligationto assassinate stances). 78 Shashank An Exploitable theDeveloping Nation Under Watercourse: Resourcefor Upadhye, TheInternational L. 61 (2000) (rightto developmentas ajus cogens International Law?8 CARDOZO & COMP. norm). J. INT'L 79 In contrast MichaelH. Allenasserts thatglobalist to theviewsof thosewho callhumanitarian normsjuscogens, norm in socialforcesideologically havesucceededin makingfreetradea peremptory committedto neoliberalism andhavepreempted of countervailing lawsecondonly to nonaggression, the emergence international peremptory Normsin normson humanrightsandenvironmental MichaelH. Allen, Globalization imperatives. andPeremptory to GlobalConstitutionalism? POL.341 (2004): Law:FromWestphalian 41 INT'L International concernsor the proThe practical effect has been that no treatyon othermatters,such as environmental of open markets.Free as valid if they contradictthe requirement tection of culturalassets,are [sic]regarded statusby reasonof the socialpower,marketprominence,and ideologicalprotradehas achievedperemptory ductivityof the socialforceswho supportthe EU, Nafta and WTO.

Id. at 346. 80 See, Law ProhibitDomestic in Burundi:ShouldInternational e.g., PatriciaY. Reyhan, GenocidalViolence 60 ALBANY L. REV.771 (1997) (genocide). Humanitarian Intervention? 81 and OtherSources in International Relations: TheSoviet Jan F. Triska& RobertM. Slusser,Treaties of Order in 1974 that the Brezhnev doctrine,which View,52 AJIL699, 710, 717-18 (1958). GrigoriiTunkin proclaimed
he called proletarian internationalism, was ajus cogensnorm. G. I. TUNKIN, THEORYOF INTERNATIONAL LAW

444 (WilliamE. Butlertrans.,1974).

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comments that "the trend to abuse the notion ofjus cogensis always present among international lawyers."82 Thelegalconsequences ofjus cogens. In Manhattan, along one of the major crosstown streets, the curb in front of a bus stop is painted red, which is known throughout the United States to denote a no-parking zone. On a street lamp next to the bus stop is a sign reading "No Parking." Above that, a second sign reads "Absolutely no parking." On top, a third sign dictates "Don't even think of parking here." If signs one and two can be taken to stand for treaty and custom, the question must be asked: what does the third sign add in practice other than visual shoe pounding? Does it make the law against parking in the bus zone more binding? Clearly not. Does it indicate that the sanctions are more severe? Possibly, but nothing on the signs reveals this to be the case. Does it mean that the police will pass more frequently to enforce the parking ban? This is also a possible consequence, although not one that is clear from the sign itself. The questions provoked by the signs may also be asked about the category of jus cogens. According to VCLT Article 53, a peremptory norm operates to void any treaty entered into contrary to the norm. Yet it is hard to accept the practical import of the VCLT: if one assumes that two states enter into an agreement, for example to commit genocide, slave trading, or aggression, Article 71 would dictate that the parties should then eliminate the consequences of any illegal act performed in reliance on the treaty and bring their relations into conformity with the peremptory norm. Since the treaties and acts mentioned would also be likely to constitute breaches of UN Charter Article 103, it would seem unnecessary to resort tojus cogens. Erikade Wet, using torture as an example and citing the Furundzija case,83posits severalother specific consequences for states breaching a peremptory norm: delegitimizing any legislative, administrative, or judicial act authorizing the prohibited act; overriding domestic amnesty; allowing victims to file in international tribunals to hold national measures internationally unlawful; obtaining civil damages from courts in any jurisdiction; allowing universaljurisdiction for criminal investigation, prosecution, and punishment; and excluding application of political offense exceptions or statutes of limitations.84 Yet most of these consequences could seemingly result from the enforcement of treaty and customary norms without the necessity designation. National laws and policies do not excuse the breach of an international ofjus cogens the procedures for enforcement may be developed independently ofajus cogens and obligation designation. In fact, perhaps the only real impact ofjus cogenswould be on a state, if any, that did not adhere to a single one of the many treatiesbanning torture and persistently claimed the right to commit torture, as the norm banning the practice emerged into customary international law. Indeed, although the idea ofjus cogensoriginated solely as a limitation on the treaty-making power of states, today an assertion that a norm isjus cogensseems more often intended to override the will of persistent objectors to the emergence of the norm as customary international law.85Ifjus cogensis "a norm from which no derogation is possible" and its creation by "the
82 83

84

supra note 64, at 88. Czaplinfski, v. Furundzija, Prosecutor No. IT-95-17/1-T10 De Wet, supra note 76.

(Dec. 10, 1998), available at <http://www.un.org/icty>.

85 of course,the conceptwould also be applicable if two or more statesdecidedto enterinto an Theoretically, and one of them laterchangedits mind. acquisitionby aggression agreementto commit genocideor territorial to theVCLT,only a partyto an illegalagreement caninvokethe illegality to escapeits treatyobligations. According on stateresponsibility The ILCarticles andimposeobligations on allstatesto repress breaches ofjuscogens go further norm being breachedalso involvesan norms;thirdstatesmay havestandingto complainas well if thejus cogens

obligation erga omnes.

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international community as a whole" means anything less than unanimity, then the issue of dissenting states arises. In reality, the problem is likely to arise rarelybecause those norms most often identified as jus cogensare clearly accepted as customary international law and there are no persistent objectors. In addition, the obligations deemed basic to the international community-to refrain from the use of force against another state, to settle disputes peacefully, 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. Nearly all states have also accepted the humanitarian conventions on the laws ofwar, expressions of customary international law to which there areno persistent objectors. 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. Under these circumstances, the value added by labeling norms as peremptory is certainly open to question. According to those who find the source ofjus cogensin state consent, the consequence is limited to the law of treaties, pursuant to the provisions of the VCLT. Those provisions preclude states from concluding valid treatiescontraryto peremptory norms because such treatieswould be illegal and void ab initio. There are no other consequences under the most stringent consensual approach, although some writers admit that if treatiesviolating peremptory norms are illegal, there may then be consequences in the law of state responsibility. Those who accept a less consensual source for peremptory norms, whether based in natural law or implicit acceptance of "necessary"legal rules, agree that the consequences are much broader. Jus cogens in this perspective overrides contrary international and domestic law, whether the state in question accepts or dissents from the asserted peremptory norm. In Practice The concept ofjus cogenshas been invoked largely outside its original context in the law of treaties and with only limited impact. At the International Court of Justice, until early 2006, the term appearedonly in separateor dissenting opinions or when the Court was quoting other sources.86Previously, states rarelyraised the issue,87and when they did the Court seemed to take pains to avoid any pronouncement on it.88 The 1986 Nicaragua decision, most often cited for the Court's recognition ofjus cogens,did not in fact approve either the concept or the content of such norms.89In the subsequent advisory opinion on nuclear weapons, the ICJ utilized descriptive phrases that could be taken to refer to peremptory norms, although the language is unclear. The Court called some rules of
See, e.g., Right of Passage over Indian Territory (Port. v. India), Merits, 1960 ICJ REP. 6, at 135, 139-140 (Apr. 12) (Renandes, J. adhoc, dissenting); South West Africa, Second Phase (Eth. v. S. Afr.; Liber. v. S. Afr.), 1966 ICJ REP. 6, 298 (July 18) (Tanaka, J., dissenting). 87 Gabcikovo-Nagymaros Project (Hung./Slovk.), 1997 ICJ REP.7, para. 112 (Sept. 25) (noting that neither side had contended that new peremptory norms of environmental law had emerged). 88 See North Sea Continental Shelf (FRG/Den.; FRG/Neth.), 1969 ICJ REP. 3, para. 72 (Feb. 20) (declining to enter into or pronounce upon any issue concerningjus cogens). 89 Military and ParamilitaryActivities in andAgainst Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ REP. 14, 100, para. 190 (June 27) (citing the ILC assertion that the norm against aggression is a peremptory norm as evidence that it is an obligation under customary international law).
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international humanitarian law so fundamental to respect for the human person and "elementary considerations of humanity" that "they constitute intransgressibleprinciples of international customary law."90Whether "intransgressible"means the rules are peremptory or was used simply to emphasize the binding nature of the customary norms is uncertain, but the former reading may be more plausible. The first occasion on which the International Court gave support to the existence ofjus cogenswas in the February3, 2006, Judgment on Preliminary Objections in ArmedActivities on the Territoryofthe Congo.91 The Democratic Republic of the Congo (DRC or the Congo) of violations human alleged rights and humanitarian law resulting from acts of armed aggression committed by Rwanda in the DRC. Three bases of jurisdiction asserted by the Congo92 involved claimed breachesof peremptory norms. First, the DRC alleged breachesof the Genocide Convention and contended that Rwanda's reservationwithholding jurisdiction from the ICJ was invalid because it sought to prevent the Court from safeguarding the peremptory norms manifest in the Convention. Second, the DRC accused Rwanda of filing an invalid reservation to the Racial Discrimination Convention, which according to the DRC also contains peremptory norms. Third, the DRC invoked Article 66 of the Vienna Convention on the Law of Treaties, to assert that the Court has jurisdiction to settle all disputes arising from the violation of peremptory norms. The Court for the first time explicitly and overwhelmingly recognized the existence ofjus cogensin its analysis of the validity of Rwanda's reservations to the Genocide and Racial Discrimination Conventions. With respect to the Genocide Convention, the Court reaffirmed that the rights and obligations contained therein are rights and obligations ergaomnes,93 then to the of be a norm of inter"assuredly" peremptory pronounced prohibition genocide general national law. In making this straightforwardstatement, the Court did not offer any reference, evidence, or analysis that might help to establish criteria for identifying other peremptory norms or the consequences of such a characterization. As in most other cases where peremptory norms have been recognized, the legal consequences of this classification were essentially imperceptible. The Court held by 15-294 that it lacked jurisdiction over the dispute, reaffirming that "[u]nder the Court's Statute that jurisdiction is always based on the consent of the parties."95 Concerning the Rwandan reservations,
of the Threator Use of NuclearWeapons,AdvisoryOpinion, 1996 ICJREP.226, para.79 (July 8). Legality the Territory of the Congo (New Application: 2002) (Dem. Rep. Congo v. Rwanda), andAdmissibility(Int'lCt. JusticeFeb. 3, 2006) [hereinafter Jurisdiction Congo v. RwandaJudgment]. 92 The DRC asserted a breach of the UN ConventionAgainstTortureandOtherCruel,Inhumanor Degrading Dec. 10, 1984, 1465 UNTS 85, to which Rwandais not a party; Treatmentor Punishment,openedfor signature invokedbut failedto maintaina claimbasedon the Conventionon the Privileges andImmunities of the Specialized that Rwanda's to contestjurisdiction and a request Agencies,Nov. 21, 1947, 33 UNTS 261; asserted appearance for provisional measures of jurisdiction; of the ICJ basedon amountedto an acceptance and asserted jurisdiction ArticleIXof theConventionon thePrevention andPunishment of the Crimeof Genocide,Dec. 9, 1948,78 UNTS GenocideConvention]; Article22 of the Conventionon the Eliminationof All Formsof Racial 277 [hereinafter Dec. 21, 1965, 660 UNTS 195 [hereinafter RacialDiscrimination Article29(1) of Discrimination, Convention]; the Conventionon the Elimination of All Formsof Discrimination AgainstWomen, Dec. 18, 1979, 1249 UNTS 13;Article75 of the WHO Constitution, July22, 1946,62 Stat.2679, 14 UNTS 185;ArticleXIV(2) of the Constitutionof theUnitedNationsEducational, andCultural Nov. 16, 1945, TIASNo. 1580, Scientific Organization, 4 UNTS 275; Article14(1) of the MontrealConventionfor the Suppression of UnlawfulActs Againstthe Safety of CivilAviation(Sabotage), Sept. 23, 1971, 24 UST 564, 974 UNTS 177; andVCLT, supranote 4, Art. 66. 93 v. on the Prevention Rwanda 64 (citing of the Convention andPunishment Congo para. Application Judgment, of the Crimeof Genocide(Bosn.& Herz.v. Yugo.),Preliminary 1996 ICJREP. 595, 616 (July 11)). Objections, 94 Neitherof the on theywould havefound jurisdiction dissentingjudgescontestedthe existenceofjus cogens; otherbases. 95 Congo v. RwandaJudgment,para.64.
91 ArmedActivitieson

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the Court held that a reservation to ICJ jurisdiction cannot be judged invalid on the ground violations. Thus, "[w]hen a compromissory clause that it withholds jurisdiction overjus cogens in a treaty provides for the Court's jurisdiction, that jurisdiction exists only in respect of the parties to the treaty who are bound by that clause and within the limits set out therein."96As for the Genocide Convention, the Court characterizedRwanda's reservationto Article IX precluding the Court's jurisdiction as one "meant to exclude a particularmethod of settling a dispute relating to the interpretation, application or fulfilment of the Convention" and not one affecting substantive obligations relating to acts of genocide themselves.97 It was therefore valid, there being no peremptory norm of international law requiring a state to consent to ICJ jurisdiction in a case involving genocide. The Court took the same approach to the DRC's argument against the validity of Rwanda's reservationto the dispute settlement provision of the Racial Discrimination Convention, but the Judgment leaves unclear whether or not the Court accepted the DRC's claim that the prohibition of racialdiscrimination is ajus cogensnorm. The Court simply referredback to its reasoning on the Genocide Convention and reaffirmed the nonexistence of a peremptory norm requiring states to consent to ICJ jurisdiction, leaving open its characterizationof the substantive norms in the treaty. Finally, the Court assessedwhether or not Article 66 of the Vienna Convention provides a basis for ruling on allegedjus cogensviolations.98 The Court found no basis for jurisdiction, accepting Rwanda's argument that the Vienna Convention is not retroactive. Therefore, it would not apply to the treaties in question, unless Article 66 could be found to codify customaryinternational law, which the Court held it does not do. In sum, according to the ICJ, neither the ergaomnesnor the peremptory characterof a norm of itself gives the Court jurisdiction to decide a dispute, which always depends on the consent of the parties. No peremptory norm requiresa state to consent to jurisdiction where compliance with a peremptory norm is the issue before the Court. Like Congov. Rwanda, the ICJ'sArrest WarrantJudgment of February 14, 2002, indicates the limited role ofjus cogensin practice. Belgium issued an international arrestwarrantcharging the Congolese foreign minister with grave breaches of the Geneva Conventions of 1949 and with crimes against humanity. The Congo claimed that in doing so Belgium had violated "the rule of customary international law concerning the absolute inviolability and immunity from
Id., para. 65 (citing Armed Activities on the Territory of the Congo (New Application: 2002) (Dem. Rep. Congo v. Rwanda), Provisional Measures, 2002 ICJ REP. 245 (July 10)). Even if the reservation had been held invalid, it is not clear that the result would have been in favor of jurisdiction. The consequences of an invalid reservation set forth in the Vienna Convention on the Law of Treaties do not include ignoring the reservation and treating the party as if the reservation had not been made. See VCLT, supra note 4, Arts. 20, 21. 97 Congo v. Rwanda Judgment, para. 67. The Court also noted its previous advisory opinion finding that the Genocide Convention permits reservations, pointed out that it had given effect to Article IX reservations in prior cases, and noted that the DRC had failed to object to Rwanda's reservation when it was made. Id., paras. 66, 68 (citing Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 1951 ICJ REP. 15 (May 28)). Five judges in a separate opinion indicated some concerns about the Court's treatment of Rwanda's reservation to Article IX of the Genocide Convention. Seeking to restrict the Judgment to the facts of this case, they noted that the ICJ gives an important role to the Court with respect to the fulfillment of the Convention. "It is thus not self-evident that a reservation to Article IX could not be regarded as incompatible with the object and purpose of the Convention and ... this is a matter that the Court should revisit for further consideration." Id., Separate Opinion of Judges Higgins, Kooijmans, Elaraby, Owada, and Simma, para. 29. 98 Article 66(a) provides that "any one of the parties to a dispute concerning the application or the interpretation ofArticle 53 or 64 [the provisions concerningjus cogens]may, by a written application, submit it to the International Court of Justice for a decision unless the parties by common consent agree to submit the dispute to arbitration."
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criminal process of incumbent foreign ministers."99On the basis of the pleadings, the Court proceeded from the assumption that Belgium had jurisdiction under international law to issue and circulate the arrestwarrant. The Congo contended that immunity from criminal process is absolute or complete and thus subject to no exception, even for international crimes. Belgium specifically argued that immunities cannot apply to war crimes or crimes against humanity, citing treaties, international and national tribunals, and national legislation. In particular, it contended that an exception to the immunity rule was accepted in the case of serious crimes under international law. The Court held that "certain holders of high-ranking office" enjoy immunity from civil and criminal process, and concluded that no customary international law restricts their immunity even when they are suspected of having committed war crimes or crimes against humanity. The ICJ came to this conclusion without discussing the possiblejus cogensstatus of the norms or the effect ofjus cogensnorms on sovereign immunity.?00 John Dugard, writing separatelyas an ad hocjudge in Congov. Rwanda, alone discussed the concept ofjus cogensin some detail and reviewed the Court's priorjurisprudence, including the Arrest WarrantJudgment. He addressed in particularthe limited consequences deriving from normative hierarchyin international law. In his view, the concept ofjus cogens"isnot to be used as an instrument to overthrow accepted doctrines of international law."'01This precept poses, as he noted, many problems about the proper application of peremptory norms. Taking together existing jurisprudence, treaties, and customary international law, he restated the view that a treatywill be void if it conflicts with a peremptory norm of general international law,102 and that states must deny recognition to a situation created by the serious breach of a peremptory norm.'03 He also noted that it has been suggested that a Security Council resolution will be void if it conflicts with a norm ofjus cogens.04 Beyond these effects, he found thatjus cogens norms have a role to play in the judicial process where authorities are divided or different general principles compete for priority, guiding judges to choose certain superior principles and policies "in order to arriveat a coherent conclusion that most effectively furthers the integrity of the international legal order."'05 Jus cogensnorms, reflecting the most fundamental policies or goals of the international community, must inevitably play a dominant role in the process of judicial choice. Dugard implicitly criticized the ICJ'sjudgments in theArrest Warrant,South WestAfrica,and East Timor cases, asserting that in all of them the Court might have invoked jus cogensnorms but did not. According to Dugard's assessment of these cases, the Court was faced with competing principles and precedents and preferrednot to choose the solution that gave effect to a norm ofjus cogens.It was not asked to overthrow an established principle. In
of 11April2000 (Dem. Rep.Congov. Belg.),2002 ICJREP. Warrant 99 Arrest 3, para.12 (Feb.14). The Vienna Conventionon DiplomaticRelations andViennaConventionon Consular Relations weresaidto reflect customary international law. Id., para.52.
100

to jus to the issuesin the case.The dissentingopinion of JudgeAl-Khasawneh refers despiteits obviousrelevance id. at 95, para.7. cogens, linkingimmunityand impunity.DissentingOpinion of JudgeAl-Khasawneh, 101 Opinion of Judgead hocDugard,para.6 [hereinafter Congo v. Rwanda Judgment,supranote 91, Separate Opinion]. DugardSeparate
102 103

Id., para. 51. Only one of the ten opinions in theArrest Warrantcase mentions the concept ofjus cogensnorms

VCLT, supra note 4, Art. 53.

of Statesfor Internationally Law Articleson Responsibility WrongfulActs, in Reportof the International Commissionon the Work of Its Fifty-third Session,UN GAOR, 56th Sess.,Supp.No. 10, at 43, 282, 287, Arts. StateResponsibility 40, 41, UN Doc. A/56/10 (2001) [hereinafter Articles]. 104 note 101, para.8 (citingApplicationof the Conventionon the Prevention DugardSeparate Opinion, supra and Punishmentof the Crimeof Genocide(Bosn. & Herz.v. Yugo. (Serb.& Mont.)), Further Requestsfor ProvisionalMeasures,1993 ICJREP.325, 440 (Sept. 13) (Lauterpacht, J. ad hoc,sep. op.)). See alsothe viewsof the text. EuropeanCourt of FirstInstancein notes 121-34 infraand corresponding
105

Dugard Separate Opinion, supra note 101, para. 10.

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contrast, the DRC asked the Court to "invoke a peremptory norm to trump a norm of general international law accepted and recognized by the international community of States as a whole and which has guided the Court for over 80 years."'06Dugard agreed with the Court that to do so would go too far. The asserted distinction is not entirely convincing. All of the cited cases before the ICJ involved the making of exceptions to established norms of international law on issues of jurisdiction. The Court denied standing to the applicants in the South WestAfricacase by applying preexisting rules on standing. The East Timor case similarly denied Portugal's application to protect the asserted superior norm of self-determination of peoples, on the basis that Portugal was not the real party in interest. In the Arrest Warrantcase, the Court was asked to trump a widely accepted norm of general international law that affords immunity to heads of state and foreign ministers, because the alleged acts involved violations of peremptory norms. One distinction between these casesand the most recent judgment, which may be an important matter of policy, is that giving effect to the trumping value ofjus cogensin all the earlier cases would simply have permitted the states involved to proceed in the direction they sought so as to enforcejus cogensnorms. In contrast, had the DRC prevailed in Congo v. Rwanda, the result would have forced Rwanda to litigate the merits of the case directly contrary to the will it had uniformly expressed in its treaty reservations.In any event, the Court was unwilling in any of the cases to recognize specific consequences from the invocation of a peremptory norm. Other international and national courts have shown similar hesitancy. Neitherjus cogensnor peremptory norms have been mentioned in decisions of the UN Tribunal for the Law of the Sea, nor have they been referredto by the Iran or Iraqclaims tribunals. Human rights tribunals until quite recently also avoided pronouncing onjus cogens.In its only human rights judgment to discussjus cogens,decided in 2002, the European Court of Human Rights denied that violation of the peremptory norm against torture could act to deprive a state of sovereign immunity. The Court agreed that the prohibition of torture is a peremptory norm, a fundamental value and an absolute right, but found that it was "unable to discern" any basis for overriding state immunity from civil suit where acts of torture are alleged.107 In the Inter-American Court of Human Rights, the term has been discussed only once by the Court as a whole, in its 2003 advisory opinion on the juridical condition and rights of undocumented migrants.108Mexico requested the opinion largely to indicate its concern about domestic labor laws and practices as they affect aliens in the United States. Perhaps in an effort to anticipate possible arguments by the United States that it has not consented to relevant international norms, Mexico's fourth question to the Court asked: "What is the nature today of the principle of non-discrimination and the right to equal and effective protection of the law in the hierarchy of norms established by general international law and, in this context, can they be considered to be the expression of norms of ius cogens?"l09 Mexico also asked the Court to indicate the legal effect of a finding that these norms arejus cogens. Mexico's request generated considerable interest. Five other states, not including the United States, participated in the proceedings, as did the Inter-American Commission on Human
106Id., para.13 Warrant of 11April2000 (Dem. Rep.Congov. Belg.),2002 ICJREP. 3 (Feb. 14); (citingArrest for Statesof the ContinuedPresence of SouthAfricain Namibia (SouthWest Africa),NotLegalConsequences CouncilResolution 276 (1970), Advisory Security Opinion, 1971 ICJREP.16 (June21); EastTimor withstanding (Port.v. Austl.), 1995 ICJREP.90 (June 30)). 107Al-Adsani v. United Kingdom,2001-XI Eur.Ct. H.R. 79, para.61, 34 EUR.HUM.RTS. REP. 11 (2002). 108 ConditionandRightsofthe Undocumented Ct. Hum. Rts. Juridical Migrants, Advisory Opinion,Inter-Am. (ser.A) No. 18 (2003). 109 Id., para. 4.

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Rights;in addition, a dozen individualsand groupsfiled briefsas amici curiae.However, apartfrom Mexico, only the interventionof the Commission and two briefsfrom universityamici curiaediscussed the topic ofjus cogens. Costa Rica expresslydisavowed any intention to comment on it.10 Mexico asserted that unnamed publicists have denominated fundamental human rights as norms ofjus cogens.It also referredto the views of individual judges and the International Law Commission on the legal effects ofjus cogens.l 1 The main argument of Mexico, however, was that "universal morality," as a source of law, provides a basis for establishing norms of jus cogens."2 Mexico claimed, in this respect, that a cautious approach in case law has lagged of behind the views of the international community. Indeed, Mexico argued for the "transfer" the Martens clause from humanitarian law to the field of human rights to imply the formulation of new norms and obligations, even those characterizedasjus cogens.113 The Commission's position simply assertedthat the international community is unanimous in considering the prohibition of racial discrimination as an obligation erga omnes; it then jumped to the conclusion that the principle ofnondiscrimination is a norm ofjus cogens,at the same time noting that the international community has not yet reached consensus on prohibiting discrimination based on motives other than racialdiscrimination. According to the Commission, "[T]his does not lessen its fundamental importance in all international laws.""l4 The Court's opinion, which, it stated, applies to all OAS member states whether or not they are partyto the American Convention on Human Rights, 115 appearsclearlyto view naturallaw as a source of higher obligation. According to the Court, "Allpersons have attributes inherent to their human dignity that may not be harmed; these attributes make them possessors of fundamental rights that may not be disregarded and which are, consequently, superior to the The Court nonetheless cited nineteen power of the State, whatever its political structure.""116 treatiesand fourteen soft law instruments on the principle ofnondiscrimination, finding that, taken together, they evidence a universal obligation to respect and guarantee human rights without discrimination. On whether this principle amounts to jus cogens,the Court moved beyond the Vienna Convention, asserting that "by its definition" and its development, jus cogensis not limited to treaty law. 117 The Court summarily concluded that nondiscrimination isjus cogens,being "intrinsicallyrelated to the right to equal protection before the law, which, in turn, derives 'directly from the oneness of the human family and is linked to the essential dignity of the individual. "' 18The Court added that the principle belongs tojus cogensbecause the whole legal structureof national and international public order rests on it and it constitutes a fundamental principle that permeates all laws. '19The effect of this declaration, according to the Court, is that all states are bound by the norm erga omnes.120
110

Id., para. 47. 111Id.


2 Id. 113Id. 114 115

Id.

6
117

on thePrevention the ICJJudgmentsin theApplication and Punishment of the Convention of the Crimeof Genocide Traction, (Bosn.& Herz.v. Yugo.), Preliminary Objections,1996 ICJREP.595 (July 11), and the Barcelona Light & PowerCo. (Belg.v. Spain),SecondPhase, 1970 ICJ REP.3 (Feb. 5), neitherof which discussesthe subject. 118 ConditionandRightsof the UndocumentedMigrants, Conditionand Juridical para.100 (quotingJuridical Rightsof the Child, AdvisoryOpinion, Inter-Am.Ct. Hum. Rts. (ser.A) No. 17, para.45 (2002)). 19Id., para.101.
120

Id., paras. 60, 110. Id., para. 73. caselaw, the Courtwronglycited hasbeendevelopedby international Id., para.99. In statingthatjuscogens

Id., para. 109.

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Anotheropinion that reflects of authority to denominateperempstrongjudicialassertion tory normsand give them broadeffect is the judgmentof the Court of FirstInstanceof the 121The issueconcernedEC compliancewith Union in the caseof Kadiv. Council. European SecurityCouncil resolutions122 orderingstatesto freezethe funds and assetsof individuals listed by the UN SanctionsCommitteeas sponsorsof terrorist operations.YassinAbdullah Kadiwaslistedas a personsubjectto the freeze.123 While manyof the arguments centeredon the legalauthorityfor the variousEC texts and the procedureby which they were adopted, the most significant probably aspectof the caseconcernedKadi'scontentionthatthe Security Council resolutionsdid not confer the power on EC institutionsto abrogatefundamental thathis fundamental andjudirightsto a fairhearing,respectforproperty, rights.He asserted cial remedieshad been violated.The Council and Commissionobservedthat their actions into the Communitylegal orderbinding SecurityCouncil resolutionsthat the transposed Article25. memberstatesof the Communitywereobligedto follow,pursuant to UN Charter The Courtopinedthatfromthe standpointof international law, the obligationsof the UN memberstates"clearly over everyother obligationof domesticlaw or international prevail" of the Councilof Europe,theirobligations law,124 treaty including,forthosethataremembers FreeConventionon the Protectionof HumanRightsand Fundamental underthe European Article103 constitutesan exceptionto VCLTArticle30 doms.The Courtheld that Charter to successive aswellasto earlier ones.125Further, theprimacy ofthe United andapplies treaties,
Nations extends to resolutions of the Security Council adopted under Chapter VII.126

The Courtconcludedthatthe Communitymaynot infringethe obligations imposedon its nor impedetheirperformance, memberstatesby the UN Charter and that in the exerciseof to enable its powersit is bound by its constitutingtreatyto adopt all the measures necessary its memberstatesto fulfillthose obligations.Thus, the EC institutionshaveno autonomous discretionto alterthe resolutions or reviewtheirlawfulness. The Counciland Commissionthen arguedthat,in thatcase,the Courtlackedjurisdiction to reviewthe legalityof the EC regulations for conformitywith fundamental rightsbecauseit The Court agreedthat would indirectlyreviewthe legalityof the SecurityCouncilmeasures. of a threatto the peaceand the measures it could not reviewany determination requiredto assuchan undertaking with maintainor reestablish wouldbe incompatible peaceandsecurity, to infringements the UN Charterand VCLT Article27. Indeed,"reference eitherof fundaof thatlegalorder mentalrightsasprotectedby the Communitylegalorderor of the principles cannotaffectthevalidityof a Security Councilmeasure or itseffectin the territory of the Com"27 Thus, the Court'sjudicialreview,in principle,did not extendto the lawfulness of munity. of human Lestthis conclusioncall into questionthe entireframework Council measures.128 in Europesince the end of World War II, the Court found an established rightsguarantees and unlimitedSecurityCouncil power: exceptionto the notion of unreviewable
121

Case T-315/01,

Kadi v. Council (Eur. Ct. Justice Sept. 21, 2005).

SC Res. 1267, para.4(b) (Oct. 15, 1999), 39 ILM235 (2000); SC Res. 1333 (Dec. 19,2000), 40 ILM 509 (2001); SC Res. 1390 (Jan. 16, 2002), 41 ILM 511 (2002). 123 The Sanctions wasimplementedby Commissionand Councilaction.Commission Committeedesignation Reg. 2062/2001, 2001 O.J. (L 277) 25; Council Reg. 881/2002, 2002 O.J. (L 139) 9. 124 Kadi, paras. 181-83 (citing Article 103 of the UN Charter, quoted supranote 11). 125 Id., para.183.
126 The Court notes that the Community is not directly bound by the Charter because it is not a member of the United Nations, but on an agency theory concludes that the member states could not confer on the Community more powers than they possessed and therefore the Community also must comply. Id., paras. 192-95. 127 Id., para. 224. 128 Id., para. 225.

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None the less, the Court is empowered to check, indirectly, the lawfulness of the resolutions of the Security Council in question with regard to jus cogens,understood as a body of higher rules of public international law binding on all subjects of international law, 29 including the bodies of the United Nations, and from which no derogation is possible. This astonishing conclusion was rationalized by the Court's statement that the UN Charter itself "presupposesthe existence of mandatory principles of international law, in particular,the The UN Charter also provides protection of the fundamental rights of the human person."130 that the Security Council is to act in accordance with the purposes and principles of Charter Article 24(2). In effect, the Court claimed that the entire body of human rights law constitutes jus cogens, referring to "the mandatory provisions concerning the universal protection of human rights, from which neither the Member States nor the bodies of the United Nations may derogate because they constitute 'intransgressibleprinciples of international customary law.'"'13 As a result, international law permits the inference that there exists one limit to the principle that resolutions of the Security Council have binding effect: namely, that they must observe the fundamental peremptory provisions ofjus cogens.If they fail to do so, however improbable that may be, they would bind neither the Member States of the United Nations nor, in consequence, the Community.'32 One may suppose that each state, each court, and each international institution may determine whether or not this violation has occurred. Certainly, this Court did not hesitate to undertake such an analysis. In a decision reminiscent ofMarbury v. Madison, the three rights invoked by Kadi were all accepted asjus cogens,but none were found to have been violated by the resolutions and regulations. The consequences for individual rights were not positive: [I]n circumstances such as those of this case, in which what is at issue is a temporary precautionary measure restricting the availability of the applicant's property, the Court of First Instance considers that observanceof the fundamental rights of the person concerned does not require the facts and evidence adduced against him to be communicated to him, once the Security Council or its Sanctions Committee is of the view that there are grounds 33 concerning the international community's security that militate against it. Those favoring human rights asjus cogensmay feel that they have won the battle only to lose the war. For example, the lack of access to any tribunal to test the evidence or conclusions of the Sanctions Committee, that is, a lacuna in the judicial protection availableto the applicant, because the traditional immunity from suit afforded inter"isnot in itself contrarytojus cogens" national organizations and states "is inherent in that right as it is guaranteed byjus cogens."134 The Court's opinion and that of the Inter-American Court of Human Rights considerably shift lawmaking from states to international tribunals, which henceforth may be asked to assess human dignity and international public order to determine which norms have a superior status
Id., para. 226. Perhaps the Court was influenced by the opinion of Judge Lauterpacht in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo. (Serb. & Mont.)), supra note 104, where he asserted that the Security Council is bound byjus cogens norms. 1993 ICJ REP. at 440, para. 100. 130 Kadi, para. 288. 131 Id., para. 231. 132 Id., para. 230. 133 Id., para. 274. 134 Id., paras. 286, 288.
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that can override state consent (or lack thereof) and invalidate or deny effect to conflicting norms, including decisions of the UN Security Council. Neither court cited evidence to demonstrate that the norms met the test of Article 53, acceptance of the norms as peremptory by the international community of states as a whole. The Inter-American Court cited international instruments to find positive law on nondiscrimination and equality, but it appeared to elevate the norm to jus cogensstatus on the basis of its own logic and reasoning about essential human dignity.135With the proliferation of international courts and growing caseload of each of them, the role of the international judiciary in this respect is likely to be increasingly important in the future. At least one author would approve this development, having suggested that the ICJ's full bench is well suited to determine the "international community's 'fundamental values.''"36Whether such lawmaking will be acceptable to the states subject to international law remains to be seen. In its own jurisprudence, the Inter-American Commission on Human Rights has referred to the concept ofjus cogensseveraltimes, suggesting natural law as an additional source of obligation. The Commission has declared the right to life, for example, to be a norm ofjus cogens derived from a higher order of norms established in ancient times and which cannot be contravened by the laws of man or of nations. The norms ofjus cogenshave been described by public law specialistsas those which encompass public international order. . .. accepted ... as necessaryto protect the public interest of the society of nations or to maintain levels of public morality recognized by them.137 In an opinion on the application of the death penalty to juvenile offenders in the United States, the Commission gave a more detailed account of its methodology for findingjus cogens norms.138 According to the Commission, developments in the corpus of international human rights law relevant to interpreting and applying the American Declaration on the Rights and Duties of Man may be drawn from various sources of international law, including the provisions of other international and regional human rights instruments and customary international law, which covers those customary norms considered to form a part ofjus cogens.The Commission reiterated that the concept ofjus cogensderives from ancient law concepts of a "superiororder of legal norms, which the laws of man or nations may not contravene," "rules which have been accepted, either expresslyby treaty or tacitly by custom, as being necessary to protect the public morality recognized by them."'39 The Commission saw the principal distinguishing feature of these norms as their "relativeindelibility," in that they constitute rules of customary law that "cannot be set aside by treaty or acquiescence but only by the formation of a subsequent customary rule of contrary effect."'40 More particularly, norms ofjus cogens cannot be avoided by being a persistent objector. These rules represent fundamental values such that violations are considered to shock the conscience of humankind; they therefore bind the international community as a whole, irrespective of protest, recognition, or acquiescence.
135 the U.S. Bill of Rights by a majorityof the U.S. SupremeCourt interpreting Analogousjudicialreasoning considerable SeeRoperv. Simmons, to includerightsof dignityandpersonal controversy. autonomyhasgenerated v. Texas,539 U.S. 558 (2003);Atkinsv. Viron juvenileexecutions); Lawrence 543 U.S. 551 (2005) (prohibition ginia, 536 U.S. 304 (2002) (prohibitionon executionof mentallyretarded). 136 A. Ford,Adjudicating Jus Cogens, 13 WIS. INT'L L.J. 145, 145 (1994). Christopher 137 Victimsof the v. Cuba,Case 11.436, Inter-Am.C.H.R., ReportNo. 47/96, OEA/ Tugboat"13 de Marzo" Ser.L/V/II.95,doc. 7 rev.179 (1996). 138 Michael Domingues (United States),Case 12.285, Inter-Am.C.H.R., ReportNo. 62/02, OEA/Ser.L/V/ II.117, doc.1, rev.1 (2003). 139 Id., para.49 (quotingRoach& Pinkertonv. United States,Case9647, Inter-Am.C.H.R., Res. No. 3/87, OEA/Ser.L/V/II.71(1987)). 140 Id.

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The Commission proceeded to list the "[c]ommonly cited examples of rules of customary law that have attained the status of jus cogensnorms": the prohibitions of genocide, slavery, forced disappearances, and torture or other cruel, inhuman, or degrading treatment or punishment. The Commission added without comment: "It has been suggested that a reliable startingpoint in identifying those international legal proscriptions that have achievedjus cogens status is the list of rights that international human rights treaties render non-derogable."141In specific cases, the Commission would look for evidence of recognition of the indelibility of the norm by the international community as a whole. "This can occur where there is acceptance and recognition by a largemajority of states, even if over dissent by a small number of states."142 On the precise issues before it, [t]he Commission considers that ... broad hemispheric adherence to the American Convention, includingArticle 4(5) thereof, constitutes compelling evidence ofa regional norm repudiating the application of the death penalty to persons under 18 years of age even amongst those states such as Guatemala, Jamaica and Grenada that, like the United States, have retained the death penalty.143 The International Criminal Tribunal for the Former Yugoslavia (ICTY), the first tribunal to discussjus cogens,supports the existence of such norms and has declared the prohibition of torture as one of them: Because of the importance of the values it protects, [the prohibition against torture] has evolved into a peremptory norm orjus cogens,that is, a norm that enjoys a higher rank in the international hierarchythan treaty law and even "ordinary"customary rules. The most conspicuous consequence of this higher rank is that the principle at issue cannot be derogated from by States through international treatiesor local or special customs or even general customary rules not endowed with the same normative force. ... Clearly, thejus cogensnature of the prohibition against torture articulatesthe notion that the prohibition has now become one of the most fundamental standards of the international community.144 The discussion had no bearing on the guilt or innocence of the person on trial, or on the binding nature of the law violated. It was not assertedthat any treaty or local custom conflicted with the customary and treatyprohibition oftorture. The referenceserved a rhetoricalpurpose only. Similarly, an International LabourOrganization report on a 1996 complaint against Myanmar for forced labor referredtojus cogenseven though the state had long been a party to ILO ConThe report's statement that vention (No. 29) Concerning Forced or Compulsory Labour.145 the practice of forced labor violates ajus cogensnorm appears intended to invite the criminal prosecution of individuals using forced labor since it labeled the systematic practice of such labor a "crime against humanity."146 The Human Rights Committee addressedjus cogensin its General Comment No. 29 on states of emergency, issued on August 31, 2001.147 According to the Committee, the list of
141

Id.

42
43 144 145 146

SpecialSupp., para.538 (1998). 147 UN Human RightsComm., GeneralCommentNo. 29, Statesof Emergency (Article4), UN Doc. CCPR/ C/21/Rev. /Add.11 (2001).

Id., para. 50. Id., para.64. Prosecutor v Furundiija, No IT-95-17/1-T, 11153-54 (Dec. 10, 1998). ILO Convention (No. 29) on Forced or Compulsory Labour, June 28, 1930, 39 UNTS 55. Report of the Commission of Inquiry on Forced Labour in Myanmar (Burma), 81 ILO OFF. BULL.(ser. B),

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nonderogable rights in Article 4(2) of the Covenant on Civil and Political Rights is related to, but not identical with, the content of peremptory human rights norms because, while some nonderogable rights are included in Article 4 "partly as recognition of the[ir] peremptory nature," other rights not included also figure among peremptory norms.148The Committee insisted that States parties may in no circumstances invoke article 4 of the Covenant as justification for acting in violation of humanitarian law or peremptory norms of international law, for instance by taking hostages, by imposing collective punishments, through arbitrarydeprivations of liberty or by deviating from fundamental principles of fair trial, including the presumption of innocence.149 While this statement may appear to be adding new conditions to Article 4, in fact paragraph 1 explicitly provides that any measures taken by states in derogation of Covenant rights must not be "inconsistent with their other obligations under international law."150 Thus, the Committee assertedthat one test of the legitimacy of measures in derogation of Covenant rights can be found in the definition of certain violations as crimes against humanity. The concept ofjus cogensnorms has been pressed most strongly in the domestic courts of the United States, initially in an effort to avoid U.S. constitutional doctrine that considers treaties and custom equivalent to other federal law, allowing the president and Congress to enact U.S. law inconsistent with international law.Jus cogensobligations were asserted first in an effort to enforce the 1986 ICJ Judgment against the United States in the Nicaragua case.'51 Lawyers argued that the constitutional precedents do not apply to norms ofjus cogens,which have a higher status that binds even the president and Congress. The Court accepted the theory arguendo, but held that compliance with a decision of the ICJ is not ajus cogensrequirement. Other domestic court cases involvingjus cogensfall into one of two categories. First are cases in which sovereign immunity has acted to shield defendants from civil lawsuits for damages. The issue has arisenmost often in courts of the United States and the United Kingdom. In both forums lawyers argued that the foreign sovereign immunity law must be interpreted to include an implied exception to sovereign immunity for violations ofjus cogensnorms. The argument relies on the idea of implied waiver, positing that state agreement to elevate a norm tojus cogens status inherently results in an implied waiver of sovereign immunity. Every court in these two systems thus far has rejected the argument and upheld immunity, although some judicial panels have split on the issue.'52 In the case of former Chilean leader Augusto Pinochet Ugarte, the issue ofjus cogensarose in response to a claim of immunity from criminal prosecution. Among the many opinions in the case, the one by Lord Millett stated that "[i]nternational law cannot be supposed to have established a crime having the characterof ajus cogensand at the same time to have provided
148
150 151

149 Id.

Id., para. 11. ICCPR, supra note 13, Art. 4(1).

Comm. of U.S. CitizensLivingin Nicar. v. Reagan,859 F.2d 929, 940 (D.C. Cir. 1988). de Blakev. Republicof Arg., 965 F.2d 699 (9th Cir. 1992), cert.denied,507 U.S. 1017 See,e.g., Siderman 3351 (Apr.18,2005); Sampson (1993);Yev. Zemin, 383 F.3d 620 (7th Cir. 2004), cert.denied,2005 U.S. LEXIS v. Fed.Republicof Germany, 250 F.3d 1145 (7th Cir.2001); HwangGeumJoov.Japan,332 F.3d 679 (D.C. Cir. 2003); Princzv. Fed. Republicof Germany,26 F.3d 1166 (D.C. Cir. 1994); Kanev. Winn, 319 F.Supp.2d162, 199 (D. Mass.2004).
152

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an immunity which is co-extensive with the obligation it seeks to impose."153Ultimately, however, the judgment did not rely onjus cogensto determine the issue because treaty law as implemented by UK law controlled the matter. Four recent cases from different national courts demonstrate the confusion over jus cogens and its relationship to issues of immunity. In all of the cases the courts held that the underlying violations constituted breaches of norms ofjus cogens-two cases involved war crimes and two concerned torture- but the courts split evenly on whether a finding ofjus cogensviolations overrides immunity. In cases from Greece and Italy, the respective supreme courts held that German crimes committed during World War II were not protected by sovereign immunity.'54 In contrast, an Ontario court of appeal and an English appellate tribunal held that the jus cogensprohibition of torture does not override sovereign immunity.155 A second category of domestic law cases in which the nature of norms asjus cogenshas been asserted concerns cases filed pursuant to the U.S. Alien Tort Statute (ATS).156Some of the plaintiffs have assertedviolations of norms ofjus cogens,often wrongly claiming that the landmark decision Filartiga v. Pena-Irala157 held torture to violate ajus cogensnorm. But the federal appellate court in that case held that official torture constitutes a violation of the law of nations and never mentioned the doctrine ofjus cogensnorms. In fact, no ATS case has turned on the characterof the violated norm asjus cogensor "ordinary"custom. Issues ofjus cogenshave arisen in Switzerland in a unique fashion. In 1966 both chambers of the Swiss Federal Parliament invalidated a popular initiative that proposed a constitutional amendment overriding the prohibition of refoulement.158 The Swiss Federal Council declared non-refoulementa peremptory norm that the states could not violate. In 1999 a new constitutional provision, Article 139 on people's initiatives, explicitly barred the use of the initiative process to adopt a constitutional amendment in violation ofjus cogensnorms.159 In two extradition decisions, the Swiss Federal Supreme Court also overrode treaty provisions on the basis of higher norms. In 1983 a request by Argentina was denied, mainly in reliance on the European Convention on Human Rights, but also on the prohibition of torture as a "generalprinIn 1985 the Court rejecteda Tunisian request on the basis that the prohibition ciple of law."160 of torture and refoulement are elements of the international public order.'61In both cases there were applicable extradition treaties. According to a commentator, "[O]ne can conclude that the recognition of a hierarchy of norms in international law is increasingly developing outside
153 Reginav. Bow StreetMetro.Stipendiary Magistrate, ExpartePinochet(No. 3), [1999] 2 All E.R. 97, 179, [2000] 1 A.C. 147 (H.L.). 154 Ferrini of Germany, AreiosPagos[Supreme Prefecture ofVoiotiav. Fed.Republic Court] 11/2000 (Greece); INTERNAZIONALE v. Fed. Republicof Germany,Cass.,sez. un., 6 Nov. 2003, n.5044, 87 RIVISTADI DIRITTO in Pasquale and Human De Sena& Francesca De Vittor, StateImmunity 539 (2004). The Italiancaseis discussed L. 112 (2005). TheItalianSupreme CourtDecisionon theFerriniCase,16 EUR.J. INT'L Rights: 155 Bouzariv. Iran,C38295, [2004] O.J. 2800 (Ont. Ct. App. June 30, 2004); Jonesv. SaudiArabia,[2004] EWCA (Civ) 1394, [1]. 156 of any civil actionby districtcourtsshallhaveoriginaljurisdiction 28 U.S.C. ?1350 (2000) ("The[federal] The ATS an alien for a tort only, committedin violationof the law of nationsor a treatyof the United States."). is partof the Judiciary Act of 1789, ch. 20, ?9(b). 157Filartiga Courtdecisionto considerissues v. Pefia-Irala, 630 F.2d 876 (2d Cir. 1980).The only U.S. Supreme 542 U.S. 692 (2004), also failedto mentionjus cogens. arisingunderthe ATS, Sosav. Alvarez-Machain, 158 note 76, at 101 n. 15. The proposedamendment would haveprovidedforsummary SeedeWet, supra deportation of illegalimmigrants. 159 auf derSchweizerischen [Constitution], Bundesverfassung Eidgenossenschaft April18, 1999,Volksinitiative Teilrevision der Bundesverfassung, Art. 139. 160 Bundesdes Schweizerischen Bundesgericht [BGer][Federal Court], Nov. 3, 1982, 108 Entscheidungen gerichts[BGE]lb 408, 412 (Switz.). 161 BGer,Apr. 17, 1985, 111 BGEIb 138, 142.

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the scope of treatylaw, with direct consequences for the interaction between national and international law."162 The recently completed ILC articles on state responsibility and accompanying commentary take the position that peremptory norms exist, urging that the concept has been recognized in international practice and in the jurisprudence of international and national courts and tribunals.163The commentary notes that the issue of hierarchy of norms has been much debated, but finds support forjus cogensin the notion of ergaomnesobligations and the inclusion of the concept of peremptory norms in the Vienna Convention on the Law of Treaties. The articlespropose a hierarchyof the consequences of various breachesof international law. Article 41 sets forth the particularconsequences said to result from the commission of a serious breach of a peremptory norm. The text imposes positive and negative obligations upon all states. With respect to the first, "[w]hat is called for in the face of serious breaches is a joint and The commentary coordinated effort by all States to counteract the effects of these breaches."164 concedes that the proposal "may reflect the progressive development of international law" in an effort to strengthen existing mechanisms of cooperation.'65 The core requirement, to abstain from recognizing consequences of the illegal acts, finds more support in state practice, with precedents including rejection of the unilateral declaration of independence by Rhodesia,166the annexation of Kuwait by Iraq,167and the South African presence in Namibia.'68 Article 41 of the articles on state responsibility, however, extends the duty to combat and not condone illegal acts beyond the requirements of the UN Charter. Towardthe Future The concerns raised by most proponents of jus cogensare serious and the rationale that emerges from the literatureis one of necessity: the international community cannot rely upon a consensual regime to address many modern international problems.169Jus cogensis needed because the modern interdependence of states demands an international ordrepubliccontaining rules that require strict compliance. The ILC commentary to the articles on state responsibility favors this position, asserting that peremptory rules exist to "prohibit what has come to be seen as intolerable because of the threat it presents to the survivalof States and their peoples and the most basic human values."170The suggested urgent need to act fundamentally challenges the consensual framework of the international system by seeking to impose on dissenting states obligations that the "international community" deems fundamental. State practice has yet to catch up fully with this plea of necessity. Nonetheless, the emergence of international criminal law has led some to see a strengthening in application ofjus cogensnorms. This possibility necessitates consideration of the nature of
De Wet, supra note 76, at 112. State Responsibility Articles, supra note 103, at 282, Art. 40 Commentary, para. 2. 164 Id. at 287, Art. 41 Commentary, para. 3. 165 Id. 166 SC Res. 216 (Nov. 12, 1965). 167 SC Res. 662, para. 1 (Aug. 9, 1990), 29 ILM 1327 (1990) (declaring that the annexation of Kuwait had "no legal validity, and is considered null and void," and calling on the international community not to recognize the annexation and to refrain from any action or dealing that might be interpreted as a recognition of it). 168 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 ICJ REP. 16, para. 126 (June 21). 169 Necessity has long been seen as underlying general international law orjusgentium on which positive law is based. SeeRoberto Ago, PositiveLawandInternationalLaw, 51 AJIL 691, 693 n.9 (1957) (citing Christian Wolff). 170 State Responsibility Articles, supra note 103, at 283, Art. 40 Commentary, para. 3.
162 163

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international crimes and the relationship of this body of law to doctrines of obligations ofjus The ICJwas the first to identify the category of obligations and obligations ergaomnes.'71 cogens in in Tractioncase.172 The characterizationof an obligation as dicta the Barcelona omnes erga one owed the international community as a whole could derive from the fact that such obligations generally aim at regulating the internal behavior of a state, such as in the field of human rights, and thus no other state is likely to be materially affected by a breach. Consequently, the principle of effectiveness supports broad standing, because without it violations could not be challenged. However, the rationale stated by the ICJ for recognizing this category of obligations appears more substantive: that "[i]in view of the importance of the rights involved, all States can be held to have a legal interest in their protection."'73 This statement suggests that obligations ergaomneshave specific and broad procedural consequences becauseofthe substantive importance of the norms they enunciate. In addition, the fact that all states can complain of a breach may make it more likely that a complaint will be made following commission of a wrongful act, suggesting that a higher priority is accorded to these norms even if they are not considered substantively superior. The ICJ's examples of such obligations included the outlawing of aggression and genocide and protection from slavery and racial discrimination. Like obligations erga omnes, international crimes are so designated because the prohibited acts are deemed of such importance to the international community that individual criminal responsibility should result from their commission.174 Unlike obligations ergaomnes,however, international criminal norms can pose problems of relative normativity. It has been clear since the Nuremberg trials that conforming to or carrying out domestic law is no excuse for breach of international criminal law; it would seem plausible as well, if unlikely to arisein practice, that a defense based on carrying out international legal obligations, such as those contained in a bilateral treaty, would fail if those obligations contradict the requirements of criminal law.'75 In this respect, norms of criminal law would be given supremacy over other international law in practice. Other aspects of the interrelationshipof these categories of norms and the sources that create them should be noted. First, neither the designation of international crimes nor that of obligations erga omnes involves a purported new source of law; crimes are created and defined through the conclusion of treaties and obligations erga omnesby treaty and customary international law. Both, however, may emerge from a global recognition of fundamental moral or ethical values. Second, it appearslogical that all international crimes are obligations ergaomnes because the international community as a whole identifies and may prosecute and punish the commission of such crimes. The reverse,however, is not the case. Not all obligations ergaomnes have been designated as international crimes. Racial discrimination, for example, is cited as an obligation erga omnesbut is not included among international crimes.
171

L. 917 (2001). On obligationsergaomnes, FromthePerspective Rights,12 EUR.J. INT'L ofNon-derogable Beyond:


CRIMES (1996); MAURIZIO ERGA OMNES AND INTERNATIONAL see ANDRE DE HOOGH, OBLIGATIONS THE CONCEPT OF INTERNATIONAL OBLIGATIONS ERGAOMNES(1997). RAGAZZI, 172 Barcelona Traction, Light & Power Co. (Belg. v. Spain), Second Phase, 1970 ICJ REP. 3, para. 33 (Feb. 5). 173 Id.; seealso East Timor (Port. v. Austl.), 1995 ICJ REP.90, para. 29 (June 30); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo.), Preliminary Objections, 1996 ICJ REP. 595, para. 31 (July 11). 174 The collective nature of the state as subject of international law makes imposition of state criminal responsibility problematic. Although the International Law Commission included a provision on state crimes in early versions of its articles on state responsibility, the provision was eventually excluded. 175 The treaty itself might be considered void as a violation of peremptory norms if it required or authorized the commission of an international crime.

For a discussion of the distinctions, see Teraya Koji, Emerging Hierarchy in International Human Rightsand

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as international to be no hierarchy. The crimes,thereappears Among thoseactsdesignated in the Tadic is in lawno distinctionbetweenthe seriousICTYdeclared judgmentthat"there ness of a crimeagainsthumanityand that of a warcrime."176
III. SOFT LAW

Statesinsideandoutsideinternational now often placenormative statements organizations in nonlegally or instruments such as andagreements declarations, resolutions, binding political and programs of action.These instruments may makeit easierto pressdissentingstatesinto to induce behavior international lawpermits because statesto usepoliticalpressure conforming states cannot that others conform othersto changetheirpractices; demand however, generally, to legalnormsthe latterhavenot accepted.Nonbinding commitmentsmay be enteredinto to reflectthewill of the international communityto resolvea pressing globalproblem precisely overthe objectionsof the one or few statescausingthe problem,while avoidingthe doctrinal barrier of theirlackof consentto be bound by the norm.177 in severalfieldsof international The increasing use of nonbindingnormativeinstruments law is evident.There is no accepteddefinitionof "softlaw,"but it usuallyrefers to any interor other nationalinstrumentother than a treatythat containsprinciples,norms,standards, of expectedbehavior. statements The term"softlaw"is also sometimesemployedto referto it wasthistypeof norm the weak,vague,or poorlydrafted contentof a bindinginstrument;178 In fact,the term"soft that Prosper Weil had in mind in his articleon relative normativity.179 forthe morehortatory or promotional of certaintreaty law"seemsmoreappropriate language for in are legally than treaties instruments concluded because provisions nonbindingform, in if or weak terms. bindingeven specificcommitmentsaredrafted general Recently,supervisory organshave been createdto overseecompliancewith nonbinding the implemennorms.The Commissionon Sustainable Development,forexample, supervises on Environment tationofAgenda21, theplanof actionadoptedin 1992 atthe Rio Conference on compliance stateshavebeenaskedto submitreports and Development.In otherinstances, the mechof action,in a manner with declarations thatmimics,if not duplicates, andprograms anismsutilizedin treaties. havedistinguished hardlaw and soft law by statingthat breachof law gives Some scholars riseto legalconsequences, whilebreachof a politicalnormgivesriseto politicalconsequences. can Sucha distinctionis not always basedon consequences easyto make.Testingnormativity thatmaybe politicallymotibe confusingsincebreaches of lawmaygiveriseto consequences can eitherbe expressing that recallsits ambassador vated.A government politicaldisapproval
176 No. IT-94-1-A, 169 (Jan.26,2000). Fora criticism Prosecutor v. Tadic,Judgmentin SentencingAppeals, Hierof thisviewanddiscussion of the ICTY,seeAllisonMarstonDanner,Constructinga of theconflictingpractice in International Criminal Law Sentencing, 87 VA. L. REV.415 (2001). archyof Crimes 177 The UN General actionson drift-netfishingweredirectedat membersand nonmembers of the Assembly's of death." UnitedNationswhosefishingfleetsdecimated dwindlingfishresources throughuseof thedrift-net"walls The international communitymadeclearits resolveto outlawdrift-netfishingand enforcethe ban, albeitit was not containedin a legallybindinginstrument. Sovietinternational lawyerS. B. Krylovarguedthatthe decisionsof asa sourceof international international couldbe ofgreatimportance law,providedthatthedecisions organizations atlarge.Krylov alsoheldthisviewrespecting decisions wereso recognized, andappliedbythe membership accepted, of the PCIJ.SeeTriska& Slusser,supranote 81, at 710. 178 Covenanton Economic,Socialand CulturalRights,Dec. 16, 1966, 993 UNTS 3, E.g., of the International to takesteps,individually and throughinternational Article2(1) of which readsthat eachstateparty"undertakes with a assistance and co-operation,especially economicand technical,to the maximumof its available resources, view to achieving the full realization of the rightsrecognized ... by all appropriate means,including progressively the adoptionof legislative measures." particularly 179

Weil, supra note 2, at 414.

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of another state's policy on an issue, or be penalizing noncompliance with a legal norm. Terminating foreign assistance may also be characterizedeither way. Even binding UN Security Council resolutions based on a threat to the peace do not necessarily depend upon a violation of international law. With respect to "relative normativity," scholars debate whether binding instruments and nonbinding ones are strictly alternative or whether they form two ends of a continuum from legal obligation to complete freedom of action, making some such instruments more binding than others. If and how the term "soft law" should be used depends in large part on whether one adopts the binary or continuum view of international law. To many, the line between law and not-law may appear blurred. Treaty mechanisms are including more "soft" obligations, such as undertakings to strive to cooperate. Nonbinding instruments, in turn, are incorporating supervisory mechanisms traditionally found in hard-law texts. Both types of instrument may prescribecompliance procedures that range from soft to hard. Some case law refersto UN resolutions as having "a certain legal value" but one that "differs considerably" from one resolution to another.'80 Nonbinding norms have complex and potentially large impact on the development of international law. Customary law, for example, one of the two main sources of international legal obligation, requires compliance (state practice) not only as a result of the obligation, but as a constitutive, essential part of the process by which the law is formed. In recent years, nonbinding instruments have sometimes provided the necessary statement of legal obligation (opinio juris) to evidence the emergent custom and have assisted in establishing the content of the norm. The process of drafting and voting for nonbinding normative instruments may also be considered a form of state practice. The realityseems to be a dynamic interplay between soft and hard obligations similar to that which operates between international and national law. Indeed, soft law rarely stands in isolation; instead, it is used most frequently either as a precursor to hard law or as a supplement to a hard-law instrument. Soft-law instruments often serve as an authoritative way to allow treaty parties to resolve ambiguities in a binding text or fill in gaps. This function is part of an increasinglycomplex international system with variations in forms of instruments, means, and standards of measurement that interact intensely and frequently, with the common purpose of regulating behavior within a rule-of-law framework. The development of complex regimes is particularlyevident in the international management of commons areas,such as the high seas and Antarctica, and in ongoing intergovernmental cooperative arrangements. For the latter, the memorandum of understanding has become a common form of undertaking, perhaps "motivated by the need to circumvent the political constraints, economic costs, and legal rigidities that often are associated with formal and legally binding treaties."181 From the perspective of state practice, resolutions, codes of conduct, conference declarations, and similar instruments are apparently not viewed as law, soft or hard, albeit they may be related to or lead to law in one manner or another.182States and other actors generally draft and agree to legally nonbinding instruments advertently, knowingly. They make a conscious
180 TexacoOverseas PetroleumCo. & Cal. AsiaticOil Co. v. LibyanArabRepublic(award of Jan. 19, 1977), 17 ILM 1, 28-29 (1978), 53 ILR389. 181 182

JOHNSTON, supra note 9, at xxxiv.

See, for example,the decisionadoptedby the GeneralCouncil of the WTO on August 1, 2004, containing andotheragreements frameworks "TheGeneralCouncilagrees designedto focusthe Doha roundof negotiations: that this Decision and its Annexesshallnot be usedin any disputesettlementproceeding underthe [DisputeSettlementUnderstanding] and shallnot be usedfor interpreting the existingWTO Agreements." Doha Work ProDecisionAdoptedby the General Councilon 1August2004, para.2, available at <http://www.wto.orgl gramme: english/tratop_e/dda_e/draft_text_gc_dg_31july04_e.htm>.

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decision to have a text that is legally binding or not. In other words, for practitioners, governments, and intergovernmental organizations, there is not a continuum of instruments from soft to hard, but a binary system in which an instrument is entered into as law or not-law. The not-law can be politically binding or morally binding, and expectations of compliance with the norms contained in the instrument can be extremely strong, but the difference between a legally binding instrument and one that is not appearswell understood and acted upon by government negotiators. Although a vast amount of resolutions and other nonbinding texts includes normative declarations, so-called soft law is not law or a formal source of norms. Such instruments may express trends or a stage in the formulation of treaty or custom, but law does not come with a sliding scale of bindingness, nor does desired law become law by stating its desirability, even repeatedly. The first category posits that nonbinding norms precede binding ones. It is evident that compliance with nonbinding norms can lead to the formation of customary international law. In recent years, nonbinding instruments have sometimes provided the necessary statement of legal obligation (opiniojuris) to precede or accompany state practice, assisting in establishing the content of the norm.183 The adoption of nonbinding normative instruments also can and often does lead to the codification of similar or virtually identical norms in subsequent binding agreements. Indeed, the process of negotiating and drafting nonbinding instruments can greatly facilitate the achievement of the consensus necessary to produce a binding multilateral agreement. In the human rights field, nearly all recent multilateral conventions were preceded by the adoption of a nonbinding declaration. In recent environmental law, this sequence of events produced the Rotterdam Convention on Prior Informed Consent.'84 Nonbinding instruments also act interstitially to complete or supplement binding agreements. Sometimes this progression is foreseen in the agreement itself; for example, the Bonn Convention on Migratory Species of Wild Animals,'85 the Antarctic Treaty'86 regime, and agreements of the International Atomic Energy Agency on nonproliferation of nuclear weapons.187 In other instances, the nonbinding accords may appearrelativelyindependent and freestanding, but upon examination make reference to existing treaty obligations, as, for example, with the Helsinki Accords that led to the Organization for Security and Co-operation in Europe (still lacking a treaty basis) and the Zangger Committee for multilateral weapons control. Another group of nonbinding instruments was adopted by states parties with a view to authoritatively interpreting the obligations contained in treaty provisions. Examples include the Inter-Americanand Universal Declarations of Human Rights, as they relateto the Charters of the Organization of American States and the United Nations, and the more recent ILO Declaration on Fundamental Principles and Rights at Work.'88 One could add the general comments of various human rights treaty bodies, albeit the interpretation is accomplished by an independent treaty body conferred by that authority and not by the states parties directly.
E.g., GA Res. 46/215 (Dec. 20, 1991) (banning large-scale pelagic drift-net fishing). Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, Sept. 11, 1998, 30 ILM 1 (1999). 185 Convention on the Conservation of Migratory Species of Wild Animals, June 23, 1979, 19 ILM 15 (1980). 186 Antarctic Treaty, Dec. 1, 1959, 12 UST 794, 402 UNTS 71. 187 International Atomic Energy Agency, The Structure and Content of Agreements Between the Agency and States Required in Connection with the Treaty on the Non-proliferation of Nuclear Weapons, IAEA Doc. INFCIRC/153 (May 1971). 188 ILO, Declaration on Fundamental Principles and Rights at Work (June 1998), available at <http:/ www.ilo.org/public/english/standards/index.htm>.
183

184

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States and other actors adopt nonbinding normative instruments for a variety of reasons. In some cases that is all they can do in the given setting. International organizations in which much of the modern standardsetting takes place generallydo not have the power to adopt binding texts. In addition, nonstate actors can sign on, participate, and be targets of regulation, which is much more difficult to do with treaties. Nonbinding instruments are faster to adopt, easierto change, and more useful for technical matters that may need rapid or repeated revision. These attributes are particularlyimportant when the subject matter may not be ripe for treaty action because of scientific uncertainty or lack of political consensus. Finally, nonbinding texts serve to avoid domestic political battles because they do not need ratification. The considerable recourse to and compliance with nonbinding norms may represent a maturing of the international system. The ongoing relationships between states and other actors, deepening and changing with globalization, create a climate that may diminish the felt need to include all expectations between states in formal legal instruments. Not all arrangements in business, neighborhoods, or families are formalized, but are often governed by informal social norms and voluntary, noncontractual understandings. Nonbinding norms and informal social norms can be effective and offer a flexible and efficient way to order responses to common problems. They are not law and they do not need to be in order to influence conduct in the desired manner.
V. CONCLUSION

The growing complexity of the international legal system is reflected in the increasingvariety of forms of commitment adopted to regulate state behavior in regardto an ever-growing number of transnational problems. The various international actors create and implement a range of international commitments, some of which are in legal form, some of which are claimed to have supremacy over other norms, and some of which are contained in nonbinding instruments. In practice, conflicts between norms and their interpretation are probably inevitable in the present, largelydecentralized international legal system where each state is entitled initially and equally to interpret for itself the scope of its obligations and the implementation those obligations require. The interpretations or determinations of applicable rules may vary considerably, making all international law somewhat relative, in the absence of institutions competent to render authoritative interpretations binding on all states. There arealso dangersof relativenormativity alluded to by ProfessorWeil in 1983 and other hazards that have surfaced since that time. Many authors and litigators have exhibited a pronounced inflationary tendency: nonlaw becomes soft law, soft law becomes hard law, and various customary and treaty norms becomejus cogens.It is even possible, according to some, that nonbinding instruments, such as General Assembly resolutions, can identify the supreme norms ofjus cogens.As Weil put it, there has been a "blurringof the normativity threshold," a "slitheringfrom the customary rule to the general rule, then from the general rule to the universal rule."'89 Resolutions of international organizations are treated in a variable manner, depending more on their content than on their form and process of adoption. At the other end of the spectrum, the notion ofjus cogenshas been invoked to such a point in publications and litigation in the United States that it risks devaluing "ordinary"customary international law. Notably, in some pleadings in Alien Tort Claims cases defendants and even the United States government assertedthat a claim could not lie under the law of nations unless it was considered
189

Weil, supra note 2, at 415, 437.

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jus cogens.Fortunately, this misconstruction of the term "law of nations" was not adopted by the United States Supreme Court in Sosa v. Alvarez-Machain.l90 Yet, in looking forward,Jonathan Charney convincingly wrote that the international community "faces an expanding need to develop universal norms to address global concerns."191 Universal norms are a matter of necessity: certain problems threaten the well-being of all states and must be addressed by law that is binding on all states "regardlessof any one state's disposition."192Professor Charney noted that peremptory norms of international law override the treaty-making will of states as well as persistent objections. Indeed,jus cogens"is distinguished from ordinary international law because it is based on natural law propositions applicable to He identified a major locus all legal systems, all persons, or the system of international law."193 for articulation of these norms in multilateral forums such as the General Assembly, which can devise, launch, refine, and promote general international law to deal with the gravest threats to the earth and humanity as a whole. He thus saw a role for soft-law texts in establishing consensus and crystallizing new rules that may be rapidly absorbed into international law, even becoming "universal"law. The extent to which the system has moved, and may still move, toward the imposition of global public policy on nonconsenting states remains highly debated, but the need for limits on states' freedom of action seems to be increasingly recognized. International legal instruments and doctrine now often refer to the "common interest of humanity"'94 or "common concern of mankind" to identify broad concerns that could form part of international public policy. Referencesarealso more frequently made to "the international community" as an entity or authority of collective action. 95 In addition, multilateral agreements increasingly contain provisions that affect nonparty states, either by providing incentives to adhere to the norms, or by allowing parties to take coercive measures that in practice require conforming behavior of states that do not adhere to the treaty. The UN Charter itself contains a list of fundamental principles196and in Article 2(6) asserts that these may be imposed on nonparties if necessary to ensure international peace and security. Perhaps the most significant positive aspect of this trend toward normative hierarchy is its reaffirmation of the link between law and ethics, in which law is one means to achieve the fundamental values ofan international society. It remains to be determined, however, who will identify the fundamental values and by what process.
190

191 Charney, supra note 7, at 529.


192

Sosav. Alvarez-Machain, 542 U.S. 692 (2004).

Id. at 530.

93 Id. at 541.
194 SeeLOS Convention, Governingthe Activitiesof Statesin supranote 16, Art. 137(2);Treatyon Principles the Exploration and Use of Outer Space,Includingthe Moon and Other CelestialBodies,Jan. 27, 1967, pmbl., para.2, 18 UST 2410, 610 UNTS 205. 195 See,e.g.,VCLT, supranote 4, Art. 53; LOS Convention,supranote 16, Arts. 136-37. 196

UN Charter Art. 2.