Jus Cogens

JUS COGENS

In the general theory of law, every legal system is said to contain general norms of imperative character, which the subjects of law cannot modify or set aside in their contractual relations. They' constitute the irreducible minimum principles in the legal system. These norms are called jus cogens; they are to be distinguished from jus dispositivum rules, which can be derogated by private contracts. Jus cogens, the literal meaning of which is compelling law, is the technical term use to those norms of general international law that are argued hierarchically superior. The doctrine of international jus cogens was developed under a strong influence of natural law concepts, which maintain that states cannot be absolutely free in establishing their contractual relations. States were obliged to respect certain fundamental principles, which are deeply rooted in the international community.  In other words, jus cogens are rules, which correspond to the fundamental norm of international public policy and in which cannot be altered unless a subsequent norm of the same standard is established. This means that the position of the rules of jus cogens is hierarchically superior compared to other ordinary rules of international law.

Recognition of Jus Cogens in international law

        The establishment of the jus cogens norms in the international law occurred through 1969 Convention on the law of treaties. Article 53 states that “a] treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law.”  Specifically, the International Law Commission (ILC) proposed the notion of international crimes resulting from the breach by a state of an international obligation “essential for the protection of fundamental interests of the international community,” which is, in fact, closely linked to the doctrine of international jus cogens. In the Nicaragua Case, the International Court of Justice clearly affirmed jus cogens as an accepted doctrine in international law. The ICJ relied on the prohibition on the use of force as being “a conspicuous example of a rule of international law having the character of jus cogens.

        Definition of jus cogens under the Vienna Convention

The Vienna Convention transforms the concept of jus cogens into concrete norms of law by providing this as a ground for terminating treaties. Article 53 of the convention provides that:

“ A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. “

And also in Article 64 of the convention, it states:

“If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.”

A definition of a jus cogens norm amounts only to a statement of general concept: it is a peremptory norm of general international law accepted and recognized by the international com- munity as a whole as a norm from which no derogation is permitted. A jus cogens, norm contains two elements: (1) it is a norm of general international law, and (2) it is accepted and recognized .by the international community of States as a whole as a norm from which no derogation is permitted. While a jus cogens, norm is held to be superior to other norms, these two elements project the consensual nature of such norm.

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