Table of Contents
Introduction
Jus Cogens is also known as the peremptory norm is one of the most important principles that derived from the customary international law is prepared to protect the international community of different countries. Jus Cogens is also recognized as the compelling law is the technical term given to those norms of general international law that are contended to be hierarchically superior. It is a fundamental rule that binds all the states together and does not allow any exceptions. It can be modified only by a subsequent general law having the same features. This norm cannot be violated by any states, it aims to protect the fundamental values, human rights of the international community within a particular country. There is no clear universal agreement to understand which norms or rules are under peremptory rules. It plays an important role in restricting genocide or mass killing, racial discrimination, maritime stealing, the slave trade, apartheid, torture, refinement of goods or people, invasion in other countries by using force etc. The norm protects the fundamental interests of the foreign people within a country and starts taking measures to stop crimes against them. The law acts as a protection against the evil works and creates peace in the international world so that the businesses can be done nicely.
Discussion
International law is a set of rules which are accepted to bind good relations between the states as well as the nations. It is a framework to establish stability, peace-friendly relations among the countries and states as well. It is formed based on treaties, international customs, rules, general laws or principles of different nations, national and lower court decisions. So, international law has a close link with peremptory or Jus Cogens rules. It is the responsibility of committee with the help of this law to maintain and protect the fundamental rights, interests, stop any crimes against the people of any class, creed, religion etc. It is also used to prevail or stop conflicts between the individual states and different nations as well. It is also responsible to maintain and scrutinize that states perform their responsibilities well. Human rights mean the inborn rights that all human beings have irrespective of race, sex, language, religion, nationality, ethnicity etc. It includes freedom to live, freedom to speak, right to education and work, freedom from slavery and inhuman torture etc. both international laws and human rights are closely linked with Jus Cogens norms or rules which are followed and maintained worldwide.
Relationship between Jus Cogens and Human Rights
Jus Cogens norm plays an important role in creating good political, economic, social environment within the country so that different kinds of business can be done nicely. This rule of law protects the fundamental values, rights, human rights of the international community. It even prohibits the use of force of one country on another, prepared the law to stop the mass killing, and made principles of racial non-discrimination. It is trying to stop crimes against humanity and prepared the rules prohibiting trade on slaves or human trafficking. There is an intrinsic correlation between peremptory norms and human rights. Peremptory human rights norms are the projections of individual and collective ethics is the central principle of the international community but powerful collective values. If certain human rights can be considered Jus Cogens subsequently brings superior procedural effects to their implementation in relation to the principles associated with state sovereignty. This norm plays an important role in creating good political, economic, social environment within the country so that different kinds of business can be done nicely. Genocide means violence against members of a national, ethnical, racial or religious group with the intent to destroy the entire group. This destroys innocent people creating a bad effect on the country globally. People become sad and do not want to do any business with that particular country. This affects the political and economic condition of the country. International laws or rules are used by other countries to intervene and work together to stop the mass killing of a particular community within that particular nation. This law is used to protect the innocent people and punish the criminals if the government of the country is not listening based on the international court. This is stopped by working together in and demanding action against the culprits. Many countries protested and raised fight to stop as it is inhuman. Racial discrimination is the act of treating someone differently than others because of the colour of his or her skin. People who are discriminated against can suffer significant negative, consequences. General well-being, self-esteem, self-worth, and social relations can be severely impacted as a result of discrimination. Torture means that every state is entitled to investigate, prosecute and punish or extradite individuals accused of torture present in that particular country. Maritime stealing means stealing goods like oil in the oceans. This type of stealing is done to make the parent country of the product weak so that the opponent country can become strong. Different types of illegal goods are also exchanged among each other by using oceans. This may create danger and tension in the security of different countries. So, it can be understood that it protects the human rights of people not only of a particular country but of the whole world.
Importance of Jus Cogens in International law
By adopting Article 53, state parties seized the widely accepted notions of Jus Cogens with International Law by imparting legal ideas and introduced the outcome as the positive international law. The idea of this norm is to constitute one of the few mainstays of the international legal order, designed to protect different types of interests and values of the international community of states. The law is made on both the international law and human rights to establish peace and improve trading environments. This also lessens the destructive effects of both relativism and consensual on the international community’s essential normative commitments. The idea is generally accepted for both the state province as well as on international customary law rules. It also examines the practical impact of Jus Cogens not directly mentioned but structurally admitted based on the Vienna Convention explaining treaties, reservations to treaties, suspension, and modification of treaties. In some cases, the impact of this enormous direct while in other cases it is mediated through objective treaty obligations. The state cannot punish any people without proper investigation. The use of force against the other territory is also not right as it may harm both the internal as well as the external security of the people.
It may also create fear among common people. Slave trade, genocide, racial discrimination and apartheid are also categorised as wrongful acts as these types of activities destroys innocent lives and creates distinction among them. It is also used to meta-legal effect. It is also understood that no can deviate or ignore the rules of Jus Cogens. It curbs the rights and freedom of the individuals, harms the dignity of the common people. Any activities or treaties carried out by the States or international organisations offending or disrespecting human dignity and rights are against the concept of Jus Cogens. They will become null and void as it is the responsibility of the government to protect the dignity of the people. It also has an effect on the doctrine of state immunity. The general rule is that all States have the immunity from being sued by the others. It can be misused as states can behave badly with the citizens resulting in violating important rules of the international law. So, state immunity is not Jus Cogens as it ranks lower in the hierarchy of international law norms, and therefore can be overcome when a Jus Cogens norm is at stake so that victims can use their human rights so save themselves from injustice.
There are different incidents or cases by which the importance of Jus Cogens can be understood. For example- military and paramilitary activities in and against the Nicaragua by United States of America, North Sea Continental Shelf Cases between the Federal Republic of Germany versus Denmark and the Federal Republic of Germany versus Netherlands. In both cases, the country is attacked by another country that created disturbances among the people. The people are inhumanly tortured as well. This is against Jus Cogens so important measures are taken to stop this type of invasions. Anglo-Norwegian Fisheries Case is a case of maritime stealing in which one country illegally entered the other country’s sea boundary and stole fishes. This type of stealing is illegal and against the said rule. In South West Africa Cases on Liberia versus South Africa and also Ethiopia versus South Africa human rights of the common people are destroyed based on the colour of the skin. The people were treated badly by the white people. Racial discrimination and neglecting fundamental rights of the people are also against the said law. Asylum Case between Columbia and Peru occurred as the leader of Columbia instigated military rebellion within Peru. This is illegal and against the norms of Jus Cogens as it broke the multinational treaties. The Lotus Case is between France and Turkey. The latter cannot use its jurisdiction power on the former.
In Ireland versus against UK case, the latter made inhuman torture on the people of Ireland. This is against the norms of Jus Cogens. The attack on America in 9/11, fights in Afghanistan etc are wrong due to fights on religion, caste, creed etc. In Prosecutor versus Anto Furundzijia of Yugoslavia, it is declared that court cannot torture anyone without proper investigation and declaring punishment. Soering versus UK case is based on the non-refoulement of any people curbing his or her fundamental rights. This is also against the rules of Jus Cogens. In Public Committee Against Torture versus Israel case, PCAT is formed to protect human rights and fight against inhuman torture and punishment of people from the Israel Government. Scotia Case of United States of America is the case of maritime stealing or violating sea rules. Any vessels cannot enter sea border of another country without permission. The norms of Jus Cogens protects the rights of people of any country. So, it is the most important and ranked superior to the other individual rules and regulations of International law. This is because the rules are for all the countries of the world which they have to maintain so they are universally accepted also. If any nation tries to disobey any norms then strict actions can be taken against them. But the other rules are for particular countries so they can change or modify the rules on their needs and wish.
Conclusion
Thus, the International law commission in its sixty-eight session took some important decisions on the different issues of Jus Cogens. It decided to take certain measures on the protection of persons during disasters so that they can spend their life peacefully. With respect to the topic Identification of customary international law, it gave several amendments so that the customary international law is readily available and the countries follow the rules for the safety of their people. It also decided the role of national courts based on the above law. On subsequent agreements and practice in relation to the interpretation of treaties the purpose of interpretation and as forms of practice under a treaty, or pronouncements of expert bodies and of decisions of domestic courts. In crimes against humanity, the commission provided information on existing treaty-based monitoring mechanisms. In the Immunity of State officials from foreign criminal jurisdiction it analysed both the limitations and exceptions and decided to improve the measures.
- Augusto, A. and Trindade, C., 2012. Enforced Disappearances of Persons as a Violation of Jus Cogens: The Contribution of the Jurisprudence of the Inter-American Court of Human Rights. Nordic Journal of International Law, 81(4), pp.507-536.
- Boucher, D., 2011. The recognition theory of rights, customary international law and human rights. Political Studies, 59(3), pp.753-771.
- Colangelo, A.J., 2013. Jurisdiction, Immunity, Legality, and Jus Cogens. Chicago Journal of International Law, Vol. 14, No. 1, 2013
- Criddle, E.J. and Fox-Decent, E., 2012. Human rights, emergencies, and the rule of law. Human Rights Quarterly, 34(1), pp.39-87.
- Dworkin, R., 2013. A new philosophy for international law. Philosophy & Public Affairs, 41(1), pp.2-30.
- Elkins, Z., Ginsburg, T. and Simmons, B.A., 2013. Getting to rights: Treaty ratification, constitutional convergence, and human rights practice.
- Espósito, C., 2011. Jus Cogens and Jurisdictional Immunities of States at the International Court of Justice:“A Conflict Does Exist”. The Italian Yearbook of International Law Online, 21(1), pp.161-174.
- Goodin, R.E. and Ratner, S.R., 2011. Democratizing international law. Global Policy, 2(3), pp.241-247.
- Kadelbach, S., 2016. Genesis, function and identification of Jus Cogens norms. In Netherlands Yearbook of International Law 2015 (pp. 147-172). TMC Asser Press.
- Karamanian, S.L., 2013. The place of human rights in investor-state arbitration. Lewis & Clark L. Rev., 17, p.423.
- Kleinlein, T., 2016. Jus Cogens as the ‘highest law’? Peremptory norms and legal hierarchies. In Netherlands Yearbook of International Law 2015 (pp. 173-210). TMC Asser Press.
- Linderfalk, U., 2011. The Creation of Jus Cogens–Making Sense of Article 53 of the Vienna Convention. ZaöRV, 71, pp.359-378.
- Linderfalk, U., 2013. The Source of Jus Cogens Obligations–How Legal Positivism Copes with Peremptory International Law. Nordic Journal of International Law, 82(3), pp.369-389.
- Matthew, S.A.U.L., 2015. Identifying Jus Cogens norms: the interaction of scholars and international judges. Asian Journal of International Law, 5(1), pp.26-54.
- Michaels, R. and Paulwelyn, J., 2011. Conflict of Norms or Conflict of Laws: Different Techniques in the Fragmentation of Public International Law. Duke J. Comp. & Int’l L., 22, p.349.
- Nagan, W.P. and Root, J.L., 2012. The Emerging Restrictions on Sovereign Immunity: Peremptory Norms of International Law, the UN Charter, and the Application of Modern Communications Theory. NCJ Int’l L. & Com. Reg., 38, p.375.
- O’Connell, M.E., 2011. Jus Cogens: international law’s higher ethical norms. Sydney: Springer Publishers.
- Richman, S.M., Magna Carta—Its Essence and Effect on International Law. PRESIDENT’S PERSPECTIVE, p.5.
- Roberts, A., 2011. Comparative international law? The role of national courts in creating and enforcing international law. International & Comparative Law Quarterly, 60(1), pp.57-92.
- Ruggie, J.G., 2014. Global governance and “new governance theory”: Lessons from business and human rights. Global Governance, 20(1), pp.5-17.
- Ruiz Fabri, H., 2012. Enhancing the rhetoric of Jus Cogens. European Journal of International Law, 23(4), pp.1049-1058.
- Sarkin, J., 2012. Why the prohibition of enforced disappearance has attained Jus Cogens status in international law. Nordic Journal of International Law, 81(4), pp.537-584.
- Smaw, E., 2011. International law. In Encyclopedia of Global Justice(pp. 566-568). Springer Netherlands.
- Stephan, P.B., 2011. The political economy of Jus Cogens. J. Transnat’l L., 44, p.1073.
- Tams, C.J. and Asteriti, A., 2012. Erga Omnes, Jus Cogens, and their Impact on the Law of Responsibility.
- Tomuschat, C., 2011. The International Law of State immunity and its Development by National institutions. J. Transnat’l L., 44, p.1105.