Conceptualizing the relationship between jus cogens and erga omnes rules

conceptualizing the relationship between jus cogens and erga omnes rules

So do M. Byers, 'Conceptualising the Relationship Between. Jus Cogens and Erga Omnes Rules', 66 Nordic JIL () p. at p. ; Orakhelashvili, supra n . The Distinction between Jus Cogens and Obligations Erga Omnes which only the rules creating obligations erga omnes could be considered as peremptory. Michael, “Conceptualizing the Relationship Between Jus Cogens and Erga Omnes Rules” () 66 Nordic Journal of International Law

The notion of an institutionalised community was the mechanism through which Lauterpacht was able to build a link between the international community and its judiciary.

Peace is eminently a legal postulate. Lauterpacht thereby intended that the rule of law—an a priori principle requiring no consent by States—take priority over State sovereignty.

This ideal also seems to animate Rosalyn Higgins; in an early work, she claimed that: International law can never develop beyond the rudimentary state if the Court feels that the distinction between lex lata and lex ferenda forever prevents it from applying international law in a progressive manner in hitherto untested situations.

Judicial decisions are an acknowledged source of law; they must play their part in law development. What is more, a communitarian conception of international law can be totalising, upholding as it does the absolute supremacy of certain ethical convictions, certain prevalent standards of decent conduct, and a shared conception of the common good. Corfu Channel, Reparations and Reservations to Genocide: Two early advisory opinions are similarly lauded, yet equally misinterpreted.

The communitarian consensus upheld in Reparation is functional rather than conceptual: The Court simply explained that UN Members could create objective legal personality; it did not create a new normative framework for international law. By their nature the former are the concern of all States.

conceptualizing the relationship between jus cogens and erga omnes rules

In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes. Barcelona Traction primarily concerned diplomatic protection and the nationality of corporations. The Court gently intimated at the legal effects of violating a peremptory norm: States should refrain from lending support or assistance to the maintenance of apartheid in Namibia, or from entering into treaty relationships or diplomatic contacts with South Africa when it acted on behalf of Namibia.

For example, whilst both parties did not hesitate in characterising the prohibition on the use of force as being of a peremptory nature, the Court itself declined to confirm their submissions in this regard. It was a fact not lost on the Court, which quoted the US Rejoinder to justify taking jurisdiction in that case. But if there should exist two or more jus cogens norms, as is definitely the case in current international law, [33] then they must not override each other, otherwise there would ultimately be only one or no jus cogens norm left.

In other words, if there should exist two or more jus cogens norms, then no conflict could be presumed between them, since one of each pair of conflicting norms must be eliminated, leaving ultimately a group of jus cogens norms that do not conflict each other. This preconceived, unproven idea begs the question; for, if State immunity was also a jus cogens norm, then it would not be capable of being overridden by another jus cogens norm on a different subject matter: Since the whole argument is perched precariously upon the notion that State immunity is not, or should not be, a jus cogens norm, it would collapse if State immunity could be shown also to be a jus cogens norm.

But what will be proposed then would be an entirely different argument from the present one based on the asserted non-jus cogens character of State immunity. Yet, even if State immunity should be a non-jus cogens norm, there would still exist insurmountable difficulties for the abrogation theory.

That is, by attributing the overriding effect simply to the fact of jus cogens being jus cogens, such a theory would apparently be suggesting an overall incompatibility between jus cogens rules and non-jus cogens rules, regardless of their subject matter; for non-jus cogens rules, merely because of their inferior status, would be overridden by jus cogens rules. In other words, jus cogens rules and non-jus cogens rules cannot logically co-exist.

Then an important question arises: For if an override should result solely from the peremptory character of jus cogens, in the sense that a jus cogens norm should override a non-jus cogens norm simply because the former is jus cogens while the latter is not, that would amount to saying that any jus cogens norm automatically overrides any non-jus cogens norm, or that one single jus cogens norm can override all non-jus cogens norms, or, alternatively, that all jus cogens norms collectively override all non-jus cogens norms.

In short, we would be claiming that jus cogens norms can, either single-handedly or as a combined effect, override or destroy all non-jus cogens norms.

This would lead to an absurd result. As shown above, the abrogation theory in essence depends on two premises: From these two premises the theory concludes that, therefore, jus cogens norms override State immunity, the latter being asserted to be a non-jus cogens norm.

But the two premises tend to cancel each other. By classifying international legal norms as jus cogens and non-jus cogens and ordaining a pecking order to them, the hierarchy fiction actually implies, and relies for its survival upon, a co-existence of jus cogens and non-jus cogens norms. But then jus cogens norms must not automatically override or destroy non-jus-cogens norms, for otherwise all non-jus cogens norms would be wiped out or otherwise cease to operate, and there would be nothing left of international law but a handful of watchful, self-assertive jus cogens norms.

This means that the coexistence would vanish, and the hierarchy theory itself would break down. It follows that the hierarchy theory is incompatible with a blanket trump rule. Therefore, one must not maintain that any jus cogens norm can override any non-jus cogens norm.

That is to say, a jus cogens norm cannot override all ordinary norms: To be more exact, a jus cogens norm overrides only those non-jus cogens norms that are in conflict with it. For there to be a conflict between a jus cogens norm and a non-jus cogens norm, there must exist some kind of close relationship between them: Only then can we talk meaningfully of a conflict.

conceptualizing the relationship between jus cogens and erga omnes rules

Thus, as far as State immunity is concerned, a jus cogens norm cannot override State immunity here assumed to be non-jus cogens unless that jus cogens norm contains a stipulation to the effect that there is no immunity for the violation of the jus cogens norm. Then in what terms should this stipulation be formulated? Suppose the stipulation is framed as a permissive or discretionary rule: As a consequence, immunity might be granted even if a jus cogens norm has been violated.

But this would mean that a jus cogens norm does not automatically override State immunity. In other words, a State does not automatically lose its immunity simply by violating a jus cogens norm. This is quite contrary to what is asserted by proponents of the override hypothesis.

Distinction between Jus Cogens and Obligations Erga Omnes - Oxford Scholarship

That is, the stipulation should be cast as a mandatory or compulsory rule: This obligation would have to be fulfilled by either an active assertion of jurisdiction over acts of torture committed within a foreign State that is, outside the forum State or a denial of immunity in judicial or quasi-judicial proceedings already pending before a court.

Such an exercise of jurisdiction would consist in either the criminal prosecution of a foreign State for acts of torture, the initiation of civil proceedings for compensation, or, where proceedings have already been brought by private individuals against a foreign State, the rejection of a claim of immunity submitted by that foreign State or an ex officio refusal to grant immunity in default of an appearance by the defendant foreign State.

Conversely and correlatively, such an exercise of jurisdiction would entail a legal obligation on States of compulsory submission to the jurisdiction of foreign national courts.

But this would give rise to an even more serious problem.

Conceptualising the Relationship between Jus Cogens and Erga Omnes Rules

If States should be under an obligation to exercise jurisdiction, then a State that should fail to do so would be derogating from the jus cogens norm because it did not apply the norm to the full. Thus if one State violated a jus cogens norm, all other States would violate the norm as well, unless, of course, they fulfilled the obligation to take jurisdiction. Again take torture as an example. Such an exercise of jurisdiction would require that the jus cogens norm against torture consist of two stipulations: Thus if one State committed torture, thereby violating this jus cogens norm, all other States would violate it also, unless they took jurisdiction.

But the Torture Convention does not contain such an extensive jurisdictional clause, nor do States in reality seek to assert such a sweeping jurisdiction, even though the perpetration of torture is widespread in the world, just as the failure is equally prevalent of States to take jurisdiction over other States or their officials.

Second, even if the international community were aware of such an obligation, the prevalent failure to assert jurisdiction or deny immunity would mean that this norm would have long been derogated from by the international community of States as a whole.

Seen in this light, the abrogation theory actually undermines the very peremptory character of jus cogens, thereby doing this notion a serious disservice.

conceptualizing the relationship between jus cogens and erga omnes rules

In other words, a jus cogens norm cannot simultaneously contain a substantive element prohibiting certain conduct and a procedural element authorizing or obligating domestic courts to exercise jurisdiction against a foreign State for offences committed in the territory of the latter. Simply put, under current international law, a jus cogens norm cannot logically contain a jus cogens procedural element.

To sum up, under current international law, it is impossible to derive a rule denying immunity from the peremptory character of jus cogens alone. The denial of immunity has to be effected by something extraneous to the jus cogens norm. That is, the fact that a jus cogens norm is jus cogens does not automatically displace immunity: Thus what we need at present is actually TWO norms: The procedural rule of denial of immunity cannot be distilled from the substantive jus cogens rule of ban on torture and can only be developed separately outside the ban.

As international law now stands, the assertion that, because certain human rights norms are jus cogens, immunity is automatically overridden by them is a logical impossibility. The Issue of Consent There is yet another confusion with regard to jus cogens.

The starting point is the suggestion that jus cogens binds States without their consent. Besides containing the above-discussed error of deducing a loss of immunity solely from the peremptory nature of jus cogens, this view both runs foul of the language of the Vienna Convention [50] and lacks support in practice.

The obverse is also true, a State has no obligation to appear before the courts of another State for jus cogens violations unless there is an express rule obliging it to do so. The first is demonstrably true; but the second does not yet exist in current international law. Implied Waiver of Immunity? The argument goes that foreign States waive their immunity by implication when they violate jus cogens norms of international human rights law.

First, in order to be able to waive something, one must have it in the first place; so such a contention would imply that a State, as a matter of basic principle, enjoys immunity for violations of human rights, or else why does it have to waive the immunity? Thus such a waiver theory serves rather to confirm immunity than to contest it.

Secondly, a waiver would have to posit some conscious action or at least some manifestation of intention on the part of a State, indicating its willingness to submit to a foreign national court, and this would be inexplicable when a State in one way or another attempts to defend its immunity. A Summary In short, the abrogation theory advanced in the present literature is, unfortunately, unconvincing. The argument itself is inherently inconsistent, based on unproven premises, and fraught with various confusions of concepts.

The greatest merit of this theory consists, not in its legal tenability, but in affording a strong moral basis for arguing against immunity for violations of human rights.

It is only in this moral sense that the abrogation theory can be of assistance to existing rules for the protection of human rights.

The Abrogation Theory in National Courts At the level of national law, the proposition that jus cogens norms displace or disapply immunity would amount to giving a direct procedural effect to jus cogens norms in national courts. But it is highly disputable whether jus cogens norms are directly applicable in the absence of a domestic rule to this effect; [53] and the abrogation theory has been repeatedly rejected by national courts. Since the incident had taken place on the high seas, jurisdiction was claimed on the basis that the attack was in violation of the law of nations.

As there is no jus cogens exception to immunity in the FSIA, the applicant naturally has to squeeze a previously unknown exception to immunity into the tight-fitting scheme of the FSIA.

The appellants argued, among other things, that State immunity was trumped or superseded by the jus cogens norm of prohibition of torture. The Circuit Court agreed that the prohibition of official torture had attained the status of jus cogens and that any State engaged in official torture violated jus cogens; but the Court nonetheless held that that alone did not strip Argentina of immunity in the absence of an express provision in the FSIA.

This case is a good illustration of how the argument of jus cogens is usually advanced for the purpose of overcoming the impossibility of suing a foreign State in the absence of a statutory provision. Al-Adsani instituted civil proceedings in England against Kuwait and three individual defendants in respect of torture in Kuwait and threats made against him after his return to England.

The High Court drew a distinction between the acts alleged to have taken place in Kuwait and those alleged to have occurred in England. As far as the latter were concerned, the Court was not satisfied on the balance of probabilities that the Kuwaiti Government was responsible for the threats. As a result, the tort exception provided for by Section 5 of the UK SIA did not apply and the Kuwaiti Government was immune in respect of these allegations. A foreign State enjoys no immunity for acts causing personal injury committed in the United Kingdom and if that is expressly provided for the conclusion is impossible to escape that State immunity is afforded in respect of acts of torture committed outside this jurisdiction.

Thus, the prohibition of torture under international law does not lead to a denial of State immunity in the absence of a statutory provision expressly authorizing a court to do so. Since there is no jus cogens exception to immunity in the SIA, a foreign State still enjoys immunity in respect of torture or other acts contrary to international law not falling within one of the express exceptions. Al-Adsani contended before the ECHR that the prohibition of torture had acquired the status of a peremptory norm jus cogens in international law, taking precedence over treaty law and other rules of international law.

The majority of the judges, while accepting that the prohibition of torture had achieved the status of jus cogens, held that this alone could not displace immunity: The District Court held that Germany was effectively estopped by reason of the atrocities of the Nazis from relying on State immunity. Judge Sporkin, giving the judgment of the Court, denied immunity in an impassioned pronouncement: The Court of Appeals responded by saying that a violation of jus cogens did not form a basis for jurisdiction under the FSIA.

In addition, for a court to find that a State had impliedly waived its immunity, there had to be strong indications that the State intended to do so. In the absence of such indications, the Court could not conclude that violation of jus cogens norms by the Third Reich constituted an implied waiver of immunity under the FSIA. The Smith Case In Smith, where claims were brought against Libya for the Lockerby bombing, a US Circuit Court made a detailed analysis of the contention of an implied waiver of immunity in respect of jus cogens violations.

It was argued that, when violations of jus cogens norms were concerned, immunity was automatically lost. Instead of directly engaging the argument of jus cogens, the Circuit Court fell back on a cluster of grounds, ranging from legal and technical to generally political considerations.

The Court concluded that: The Bouzari Case Bouzari brought proceedings in Canada against Iran, alleging that he had been wrongfully jailed, tortured and threatened with death in Iran, because of his involvement in an oilfield project, and that his family had been forced to pay large sums of money to secure his release. He had subsequently taken up residence in Canada. The court held that Iran was immune. Swinton J commented, perceptively, that: However, the judge concluded that: Indeed, the evidence of state practice…leads to the conclusion that there is an ongoing rule of customary international law providing state immunity for acts of torture committed outside the forum state.

A Summary All the above cases involved acts committed by foreign States outside the forum State. In such cases the most important issue for national courts should not, in fact, be the question of immunity, but that of jurisdiction.

For immunity presupposes jurisdiction. If jurisdiction, whether over the foreign State or over its officials, cannot be established in the first place by virtue of rules of international law, then the issue of immunity should not arise.

The courts quoted here do not seem to have been fully aware of this point, for they often directly approached the issue of immunity without first asking whether they already had jurisdiction over the case.

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However, it is at least clear that, in the opinion of these courts, there is currently no rule of customary international law compelling a denial of immunity for violations of jus cogens human rights norms committed outside the forum State. This said, the strong moral force of the jus cogens argument, and the resultant distastefulness of its rejection, are also clearly appreciable. The Role of Jus Cogens in Distomo, Ferrini and Pinochet The Distomo, the Ferrini and the Pinochet cases deserve separate treatment because, unlike in the cases discussed above, the courts in these three cases, in denying immunity to the respective defendants, adopted a positive stand on the role of jus cogens.

However, a careful examination of the three cases will reveal that they cannot serve as precedents for the assertion that jus cogens, without more, can displace immunity. The Distomo Case Inthe Prefecture of Voiotia in southern Greece and some individual claimants brought a claim of indemnity before a local Greek court against Germany on the basis of wilful murder and destruction of private property committed by German occupying forces in the Greek village of Distomo in IV, Respecting the Laws and Customs of War on Land on the occupying forces to protect certain rights, such as the rights to life and property, was part of jus cogens.

The court concluded that, where a State acts in breach of a rule of jus cogens, that State loses its right to invoke sovereign immunity.

In such cases it is considered that the accused state did not act within the ambit of its capacity as a sovereign. The Court concluded that Germany had tacitly waived the privilege of immunity and that Greek courts had jurisdiction to adjudicate the case. But this is a mistaken belief, for this case mainly concerned the relationship between State immunity and territorial jurisdiction, not between State immunity and jus cogens; and it does not support the assertion of an existing or emergent rule that jus cogens, without more, overrides immunity.

As is made quite clear by their opinions quoted above, the Greek courts were keenly aware that they were dealing with atrocities that had been committed in Greek territory and therefore they were above all exercising their jurisdiction based on territoriality, a prototypical type of jurisdiction long established in international law.

The recourse to the notion of jus cogens in the Distomo case might be explicable by the fact that Greece has no national legislation specifically dealing with State immunity. They do not have to worry about the characterization of the conduct in question; and the defendant State cannot contend that the conduct in question is jure imperii, entitling it to immunity. Thus, in such countries, the courts must perform two tasks: But a claim for immunity based on military operations — and therefore firmly grounded in sovereignty — is a forceful one: The notion of jus cogens, with its effect of straightforward nullification of contrary treaty and customary rules and, by extension, contrary acts of States, provided just the counterargument needed.

The Distinction between Jus Cogens and Obligations Erga Omnes

It follows that, in the Distomo case, the notion of jus cogens was employed as a criterion for the characterization of the acts in question, not strictly as a jurisdictional basis.

The Greek courts were asserting jurisdiction over acts committed in the territory of Greece; in other words, what gave the Greek courts jurisdiction was not jus cogens, but the fact that the atrocities had been committed within the territory of the forum State. Jus cogens operated to strip the atrocious acts of sovereign attributes when the territorial jurisdiction of the Greek courts was incontestable.

Had the atrocities been committed outside Greece, it would be extremely questionable if jus cogens alone would have been sufficient to establish jurisdiction. Seen in this light, the principle of territorial sovereignty, even though placed by the court of the first instance at the very end of its list of grounds for jurisdiction, [90] is actually what decisively clinched the jurisdictional issue.

Moreover, that the case was brought by Greek nationals also signifies another important jurisdictional link.