Are certain rules of international law hierarchically superior to others? Discuss with reference to jus cogens, obligations erga omnes and Article 103 of the UN Charter.
 |
| International Court of Justice, The Hague. |
by Kudakwashe Kanhutu
Introduction:
The question of whether a hierarchy of rules exists in international law arises controversially due to the fact that the main subjects of international law; states, ordinarily admit to no higher arbiter than themselves. In international relations, this is the concept of sovereign equality, which means, inter alia, states can only be bound by rules they have consented to.[1] To be sure, a hierarchy of rules can exist quite uncontroversially, for instance, in a multilateral treaty where ‘the states that established that norm have so intended by stipulating that parties to that treaty shall not consent to any obligations contradicting that treaty.’[2] Controversy only arises where rules are said to be so superior that they can bind, as jus cogens rules are said to do, even states that have not consented to the treaties establishing those rules. Such rules then, can be said to affect the ordinary way states are bound by laws and, further to that, these rules create mandatory duties for all states.[3] This paper will explore whether these hierarchically superior rules in fact exist, and if they do, how they come to attain such a status and what obligations they raise for states. The discussion will start with a look at the main issues that arise in the hierarchy of norms debate. Attention will later turn to sources of international law, to see what rationale there is in the sources that validates or refutes this concept of hierarchically superior rules. In this paper, obligations erga omnes will largely be viewed as a logical consequence of jus cogens, while Article 103’s significance for this essay is that it bars any signatories of the UN Charter from signing onto treaties that conflict with the Charter.
The Significance of Jus Cogens, Obligations Erga Omnes and Article 103 of the UN Charter in Discussing a Hierarchy of Norms:
Before we proceed to the sources debate, it is necessary, by way of definitions, to posit a distinction of the issues that forms an integral part of this discussion. Jus cogens means ‘compelling law,’ it is a category of rules which are said to be peremptory and non derogable, which then gives them hierarchical superiority to other norms.[4] The literature seems to hold the view that the concept ofjus cogens is accepted to exist in general international law but there are debates on its content.[5] There is agreement on the concept but difficulties arise in listing which norms are jus cogens and how they come to attain that status. Case law affirming jus cogens is also very sparse owing to the fact that the ICJ has taken much caution in pronouncing on jus cogens. For example, in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons[6] the Court spoke of ‘certain fundamental rules of humanitarian law applicable in armed conflict as being intransgressible principles of international customary law, but found there was no need to pronounce on the issue of jus cogens.’[7] The very fact that the ICJ has mostly prevaricated on jus cogens, does raise doubts as to the constancy of these norms. Indeed, these norms are not without their doubters. The doubters, however, do not view the norms as a complete fiction, they may even see the logic and utility of peremptory norms. Instead, the general argument relates to the paradox of the same norms – which are essential to international order – being at the same time a potential threat to the same system of international law. It is important to remember that states jealously guard the traditional notion of sovereignty, and the outstanding, possible negative effect of jus cogens is to erode sovereignty beyond acceptable levels. This is because taking away the states’ sovereign right to make laws must have, in the final analysis, adverse implications for international public order. It is no mitigant to say that another criteria of jus cogens is that they should be accepted by the international community as a whole; the ‘international community as a whole’ has never been an absolute term. So, the key tensions that still arise vis-à-vis state sovereignty and jus cogens seem to be between rules of human rights norms and those that ensure stability in the system such as state immunity rules.
Evidence of this tension can be seen in Al Adsani v. Kuwait,[8] Caplan notes that ‘the Court dismissed the suit for lack of jurisdiction, holding that Kuwait was entitled to foreign state immunity under the UK State Immunity Act, 1978.’[9] Sovereignty concerns in that case would seem to have effectively trumped prosecution of the crime of torture. The argument that state sovereignty prevailed over jus cogens is affirmed in the dissenting opinions in Al Adsani v. United Kingdom.[10] The dissenting opinion of Judges Christos Rozakis and others stated that ‘The acceptance… of the jus cogens nature of the prohibition of torture entails that a state allegedly violating it cannot invoke hierarchically lower rules (in this case, those on state immunity) to avoid the consequences of the illegality of its actions.’[11] Still, the narrow 9 – 8 decision serves as a sign of the potency of existing tensions between jus cogens and sovereignty considerations.[12] Indeed, the impact of these norms on municipal legislation was affirmed by the ICTY in the Furundzija Case.[13]
None of this should be taken to imply that hierarchically superior norms do not exist. The point is that they create difficulties for international law. The apt simile used in relation to their emergence and effects on international law is, invariably, that of the opening of Pandora’s box. Bianchi says they profoundly ‘affect the structure and functioning of international law.’[14] Pursued to their logical consequences, peremptory norms create problems for international law such as the one identified by Linderfalk in his article, which also incorporates Pandora’s Box in its title. Linderfalk observes that even the UN Charter contradicts itself by allowing Article 2 (4) (a jus cogens rule) to be derogated from in Article 51. Jus cogens rules, strictly observed, cannot allow a derogation whatever the circumstances that the state finds itself in, least of all, premeditated derogations such as those envisaged by Article 51.[15] A further point he makes is that, logically therefore, Article 51 has been a nullity for many years if a strict reading of jus cogens applies as stated in Article 53 of the Vienna Convention on the Laws of Treaties.[16] Note should be made here that Article 2 (4) is one of the few times that the ICJ has affirmed a jus cogens norm. This is to be found in its ruling in the Nicaragua v. United States Case.[17] So even where jus cogens can be positively identified, problems still exist. These are some of the issues surrounding peremptory norms, obligations erga omnes are relatively uncontroversial if viewed as a corollary of jus cogens; if we simply say, if a norm is so important to the international community, then it is every state’s concern to protect that norm.
The term erga omnes means ‘flowing to all,’ thus owing to their nature, jus cogens norms create mandatory duties for all states.[18] Every state owes it to the international community to avoid the breach of jus cogens norms through treaty or deed. Furthermore, states should take action to punish or suppress the breach of these norms. In its Advisory Opinion in the Barcelona Traction, Light and Power Co. Case[19] the Court affirmed these obligations. The Court made a distinction between ‘… obligations of a state towards the international community as a whole, and those arising vis-à-vis another state in the field of diplomatic protection. By their very nature the former are the concern of all states. In view of the rights involved, all states can be held to have a legal interest in their protection; they are obligations erga omnes.’[20] The Court then lists where such obligations derive from, and suffice it to say, all the listed norms that create obligations erga omnes have been touted in international law as jus cogens norms. What arises as an issue is an uncertainty on how third parties can invoke erga omnes when, in the Reparations for Injuries Suffered in the Service of the UN Case,[21] the Court affirmed the principle that ‘only the party to whom an international obligation is due can bring a claim in respect of its breach.’[22] The question is, how then can third party states invoke Article 53 and 64 of the VCLT should a treaty be signed that breaches jus cogens? Perhaps here, international law is hopeful the situation may never arise.
Then there is the less controversial superior rules created by the UN Charter. Article 103 of the UN Charter is significant for this paper because it is a prime example of the earlier mentioned superior rule which exists because parties to a treaty agreed it to be so. This article states that ‘in 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.’[23] The very notion of a rule that invalidates other rules, should a conflict arise between them, is a sure sign of hierarchical superiority. Article 103 places Charter obligations above any other treaty obligations as ‘it stresses the peremptory character of the Charter in relation to any other international treaty.’[24] Also, the UN Charter is said to hold a special legal position due to the universal nature of its membership.[25] As all the main subjects of international law are members of the UN, it logically follows that, Article 103, by placing the Charter peremptorily to any other rules, creates mandatory duties for all the 192 states. Hossain observes that a reading of the UN Charter reflects no obvious conflict with jus cogens norms.[26] A fair observation, as most of the widely accepted peremptory norms, such as prohibition against genocide are the Charter’s central concern. The effect being that the Charter is a significant referent for all rules that may be thought of as jus cogens.
Sources of International Law and Peremptory Norms:
As observed in the introduction, states are simultaneously legislators and subjects of international law.[27] It is states who decide through deed or treaty which rules bind them. The most authoritative text on sources of international law is Article 38 of the 1969 Vienna Convention on the Law of Treaties. While this Article is a list of sources the ICJ relies on in deciding cases, it is also a restatement of what states have already come to acknowledge as authoritative.[28] These sources are treaties, custom, general principles of law, judicial decisions and scholarly writings. The important thing to note here is that states have to consent to these rules before they can be bound by them. There has to be a form of consent, either explicitly, by ratification of a formal treaty or, through opinio juris where customary law is concerned. Peremptory norms seem to have the character of forcing states to be bound by them regardless of not having ratified the treaty these rules exist in. It is this erosion to state sovereignty along with the mandatory duties they invoke which make peremptory norms controversial. Cherif Bassiouni even raises the question whether jus cogens is a source of law in itself.[29] There are also concerns over what Rene-Jean Dupuy referred to as the ‘positivization of natural law,’[30] in reference to the fact that Article 53 of the Vienna Convention on the Law of Treaties affirms jus cogens without further expatiation on what sources of law the norm derives from. The defective nature of Article 53 of the VCLT as a definition of jus cogens is captured by Jimenez de Arechaga who opined that; this description of jus cogens fails to apprehend its real essence, since the definition is based on the legal effects of a rule and not on its intrinsic nature; it is not that certain rules are of jus cogens because no derogation is permitted; rather, no derogation is allowed because they possess the nature of jus cogens.[31]
Clarity is lacking in the definition of jus cogens offered by Article 53 and, importantly, the Article did not list these norms or their sources. It is left then to international lawyers to argue the sources and character of a peremptory norm. Andre de Hoogh proposes that peremptory norms have their roots in ordinary primary rules of international law.[32] His conclusion is that emergence of a peremptory norm is preceded by the creation of a rule of customary international law.[33] For this paper, it will be sufficient to accept the jus cogens norms listed in the legal literature, which are; prohibitions against aggression, genocide, crimes against humanity, war crimes, piracy, slavery and torture. What these have in common is as noted the 1993 decision of the Hungarian Constitutional Court that ‘…war crimes and crimes against humanity are jus cogens norms of international law, because these crimes threaten mankind and international co-existence in their foundations. A state refusing to undertake this obligation may not participate in the international community.’[34] Indeed these prohibitions, which are essential for the preservation of the twin purposes of international law, should be viewed as peremptory norms. The tensions between human rights and sovereignty, which this paper has identified as significant, can be mitigated by following the proposals of ‘responsible sovereignty’ which the Yale Law School advocates.
A Fiduciary Theory of Jus Cogens?
The Yale scholars, Evans J Criddle and Evan Fox – Decent defend the position that, properly conceived, no tensions need arise between jus cogens norms and sovereignty. They note that the leading traditions such as positivism, natural law and public order’s approaches to jus cogens fail to give a reliable method of affirming those rules. Their critique of, for example, public order theories runs like this; according to public order theories, peremptory norms are those ‘that serve one of two functions; they either safeguard the peaceful co-existence of states as a community or honour the international system’s core normative commitments.’[35] Which is all very good, the problem for these authors is that public order theories do ‘not address the paradox at the core of the human rights discourse: international law’s seemingly contradictory commitments to state sovereignty and individual dignity.’[36] As been noted in this paper earlier, they too find that the European Court of Human Rights in Al Adsani v. United Kingdom rejected the argument that jus cogens violations would deprive a state of sovereign immunity.[37] This, they rightly believe, fuels scepticism about the jus cogens concept itself and impedes its development and implementation.[38]
Their argument put simply is that ‘jus cogens norms are constitutive of a state’s authority to exercise sovereign powers domestically and to claim sovereign status as an international legal actor.’[39] In what looks closely like the notion of responsible sovereignty, they propose the fiduciary theory of jus cogens. In this theory, states’ claim to sovereignty relies on fulfilment of fiduciary obligations. The state is placed to its subjects as if in a parent – child relationship, where children do not have to do anything to earn the provisions and comfort from their parents. While the parents’ status in this relationship depends on providing for their children. For them, sovereignty should be dependent on a similar principle as their theory seeks to show that; ‘peremptory norms arise from a state – subject fiduciary relationship rather than from state consent.’[40] This they believe circumvents the problem created by state consent as seen in the Al Adsani v. United Kingdom ruling. Relying on Prosecutor v. Furundzija they show that the ruling there said ‘prohibition against torture is peremptory based on the importance of the values it protects rather than state consent.’[41] In the same vein they find fault with Article 53 of the VCLT’s consensus driven criterion for identifying peremptory norms. In sum their argument is that the perceived tension between jus cogens and sovereignty can be eased by the fiduciary theory in as far as jus cogens have to be taken as the criterion of state sovereignty and not an exception.[42]
Conclusion:
The question of whether there exists a hierarchy of rules in international law is a very intractable one. This paper has argued that where peremptory norms have been created by a treaty that states have freely consented to, these rules are relatively uncontroversial. Article 103 of the UN Charter has been said to be an example of a rule that sets the UN Charter’s rules as superior to any other treaties if they conflict with the Charter. The very notion of a rule that invalidates other rules has been accepted in this paper as a sign of that rule’s hierarchical superiority. This was said to be palatable to states in as far as it does not impinge on the traditional notion of sovereignty, which has been argued to be still very important for international relations. The hierarchy debate becomes intractable where states are said to be bound by jus cogens norms from which no derogation is permitted regardless of consent, and furthermore, these norms create mandatory duties for all states. In this paper these mandatory duties have been largely treated as an uncontroversial, logical consequence of jus cogens.
A further point that has been made here is that these peremptory norms, which are important for international law are also, paradoxically, a potential threat to the same system. There is a palpable trepidation in the international system of eroding sovereignty beyond an acceptable level. It is this fear which has seen jus cogens remain largely rhetorical. Evidence of this can be seen in the caution exercised by the ICJ in pronouncing definitively on jus cogens. Even Article 53 of the VCLT, which is accepted to be an authoritative definition of jus cogens, avoided listing which norms have that status, preferring to talk instead about effects. This paper has also suggested a fiduciary theory of jus cogens as a mitigant for the tensions between sovereignty and jus cogens norms. This author takes the view that peremptory norms in fact exist, but they create controversy in their application.
BIBLIOGRAPHY:
BOOKS:
Arend A C & Beck R J, International Law and the Use of Force (Routledge 1993)
Brown C and Ainley K, Understanding International Relations (first published 1997, Palgrave Macmillan 2009)
Cassese A, International Law (Oxford University Press 2005)
De Hoogh A, Obligations Erga Omnes and International Crimes (Kluwer Law International 1996)
Jorgensen N. H.B, The Responsibility of States for International Crimes (Oxford University Press 2000)
Lowe V, International Law (Oxford University Press 2007)
Orakhelashvili A, Peremptory Norms As International Public Law (Oxford University Press 2006)
Simma B. The Charter of the United Nations: A Commentary, Second Edition, Volume 1. (Oxford University Press 2002)
JOURNALS:
Bianchi A, ‘Human Rights and the Magic of Jus Cogens’ EJIL (2008), Vol 19, No 3.
Caplan L M, ‘State Immunity, Human Rights and Jus Cogens: A Critique of the
Normative Hierarchy Theory’ AJIL [2003], Vol 97
Criddle E J & Fox – Decent E, ‘A Fiduciary Theory of Jus Cogens’ YJIL (2009) Vol. 34 No 331
Hossain K, ‘The Concept of Jus Cogens and the Obligation Under the UN Charter,’ SCJIL (2005) Vol 3
Linderfalk U, ‘The Effects of Jus Cogens Norms: Whoever Opened Pandora’s Box, Did You Ever Think About The Consequences’ EJIL (2007), Vol. 18 No 5.
McGregor L, ‘Torture and State Immunity, Deflecting State Impunity, Distorting Sovereignty’ EJIL (2008), Vol 18 No 5
Salcedo J A C, ‘Reflections on the Existence of a Hierarchy of Norms in International Law’ EJIL [1997] 8
WEBSITES:
Article 103 Contents, http://untreaty.un.org/cod/repertory/art103/english/rep_supp4_vol2-art103_e.pdf, accessed 20 March 2012.
Bassiouni C, International Crimes, Jus Cogens and Obligatio Erga Omnes. (1997)http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1016&context=lcp accessed 20 March 2012
CASES:
Al-Adsani v. Kuwait, [1996] 107 ILR 536
Al Adsani v. United Kingdom App no 35763/97 (ECHR 21 November 2001)
Nicaragua v. United States (Merits), 81 AM J. INT’L. L. 77 (1987).
Barcelona Traction, Light and Power Co. Ltd. (Belg. v. Spain), 1970 I.C.J. 3, 32 (Feb. 5)
Decision of the Constitutional Court No 53/1993. (X.13.) AB
ICTY: Prosecutor v. Furundzija, IT-95-17/1-T (Dec. 10, 1998)
Legality of the Threat or Use of Nuclear Weapons Case, ICJ Advisory Opinion of 8 July 1996
Nicaragua v. United States (Merits), 81 AM J. INT’L. L. 77 (1987).
Reparations for Injuries Suffered in the Service of the UN Case, ICJ Advisory Opinion of 11 April 1949
No comments:
Post a Comment