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Netherlands Yearbook of International Law 2015

Jus Cogens: Quo Vadis?

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Jus cogens is a formidable yet elusive concept of international law. Since its incorporation in the Vienna Convention on the Law of Treaties some 35 years ago, it has made tentative inroads into international legal practice. But its role in international law is arguably less prominent than might have been expected on the basis of its powerful potential and in view of wider developments in international law that call for constitutionalisation and hierarchy, including the processes of fragmentation and humanization. This volume of the Netherlands Yearbook of International Law sets out to clarify the concepts and doctrines relevant to jus cogens and to sharpen the debate on its theoretical foundations, functions and legal effects. To that purpose, the volume brings together contributions on the genesis and function of jus cogens, on the application of jus cogens in specialised areas of international law and on its enforcement and legal consequences. Together, they reinforce the understanding of jus cogens as a hierarchical concept of international law and shed light on its potential for further development.

Table of Contents

Frontmatter

Jus Cogens: Quo Vadis?

Frontmatter
Chapter 1. Jus Cogens and the Humanization and Fragmentation of International Law
Abstract
This editorial explores how two developments—the humanization and fragmentation of international law—permeate all aspects of jus cogens: its foundations, content and consequences. The authors are particularly intrigued by the question of how the unceasing popularity of jus cogens can be reconciled with its limited role in legal practice. It has often been observed that jus cogens owes its proliferation to the increased focus on human rights. This, in turn, has yielded two effects. First, such focus on human rights has triggered greater attention for the enforcement of peremptory norms. Secondly, it has put the responsibility of non-state actors for violation of jus cogens norms on the agenda. It may not be too far-fetched to understand the reticence of states to accept the expansion of jus cogens and its effects against the background of the fear that this will weaken the power of the state, whereas one might argue that the state is rather in need of reinforcement, in view of the manifold challenges it is confronted with. Next to the process of ‘humanization’ of international law, the appeal of jus cogens can be explained from the international lawyer’s desire for a single and coherent system of law, including a more clearly established hierarchy of norms. This aspiration is primarily infused by the concern for ‘fragmentation’ of international law. However, as in the case of humanization, countervailing factors prevent a further expansion of jus cogens in international law. For one thing, jus cogens, belonging to the realm of general international law, is too coarse and inflexible to be of effective use in special sub-fields of international law. A second explanation for the limited role played by jus cogens is that specialized international or regional courts and tribunals are hesitant or may even lack the competence to pronounce on a conflict between their legal order and other branches of international law.
Maarten den Heijer, Harmen van der Wilt
Chapter 2. Sherlock Holmes and the Mystery of Jus Cogens
Abstract
The doctrine of jus cogens attracts fierce advocates as well as strong sceptics, who debate the nature, functions and even the existence of such norms. Like Sherlock Holmes, the idea of jus cogens emerged as a concept in the imagination of writers. Over time both Sherlock Holmes and jus cogens have generated widespread belief in their reality, but it is a reality that is subjectively shaped by each follower. Early publicists creating and developing international law posited the existence of extra-consensual norms that constrained the exercise of state sovereignty, a theory that emerged in large part from Christian theology with its notions of overriding divine law. Later publicists argued that non-derogable norms originate either in natural law, ‘necessary’ law, the ‘dictates of the public conscience’, ‘universal law’, or international moral imperatives. Some recent scholars rely on the Vienna Conventions on the Law of Treaties to argue to the contrary that norms of jus cogens do not fundamentally differ from other international rules in their origin; they emerge only from state consent, being identified ‘by the international community of states as a whole’ as peremptory norms. Within the literature as to the origin of jus cogens, in the absence of state practice, theorists differ in their views of the functions the concept serves, some arguing that it is limited in application to treaty law. Others assert that such norms act to place absolute limits on the conduct of states, governments and individuals and establish a hierarchy of norms. This article examines the origin of jus cogens in doctrine and the scant evidence to be found in state practice. It also examines the functions of jus cogens, questioning whether these remain largely literary and theoretical, with an impact like Sherlock Holmes that derives primarily from belief in its existence.
Dinah Shelton
Chapter 3. Understanding the Jus Cogens Debate: The Pervasive Influence of Legal Positivism and Legal Idealism
Abstract
Although, today, jus cogens is a recognized element of international law and international legal discourse alike, many issues of vital importance to a well-functioning jus cogens regime remain unsettled. The current debate centres on the following six questions: (1) What is the source of jus cogens obligations? (2) What is the role of consent in the creation and modification of jus cogens norms? (3) How do we identify norms belonging to this category? (4) What does the category comprise? Are there such things, for example, as regional jus cogens or jus cogens principles? Are jus cogens rules necessarily rules of conduct? (5) What are the function and effects of the international jus cogens regime? (6) What is the function of jus cogens in international legal discourse? Overall, the intense scholarly debate had on peremptory international law over the last ten to twenty years has not been terribly productive. One important reason for this would seem to be the general failure of discussants to fully understand the relevance of some basic assumptions that they bring to bear on their respective analysis and consideration of the topic. To facilitate future constructive debate, this essay aims to clarify the relevance for any thoughtful consideration of jus cogens issues of legal positivism and legal idealism. While legal positivism and legal idealism are sets of theories offered to explain the concept of law, it is not surprising that lawyers of different camps will have different answers to questions (1) and (2). As argued in this essay, however, the influence of different theoretical approaches to the concept of law goes further than this—it permeates the entire jus cogens debate. Consequently, depending on whether lawyers take the position of a legal positivist or a legal idealist, they will be inclined to answer differently all questions (1)–(6).
Ulf Linderfalk
Chapter 4. Jus Cogens as a Social Construct Without Pedigree
Abstract
This chapter revisits the mainstream foundational nonchalance witnessed in the international legal scholarship relating to jus cogens whereby the practice of courts and tribunals often suffice, for most international lawyers, to compensate a disinterest in the pedigree of jus cogens. The purpose of this chapter is accordingly to depict how international lawyers, by virtue of a series of avoidance-techniques, leave one of their most fundamental doctrines ungrounded without feeling any need to anchor it more firmly in the system of thoughts of international law. Whether such a pedigreelessness actually constitutes a sign of maturity of international legal argumentation, or a theoretical ailment, is not a question that is discussed here. The description of the argumentative constructions to which international lawyers resort in relation to jus cogens to avoid the question of its pedigree is sufficient to illustrate the light treatment generally reserved to the making of the main doctrines of international law and their mystical origin.
Jean d’Aspremont
Chapter 5. Audience and Authority—The Merit of the Doctrine of Jus Cogens
Abstract
It seems that, several decades after the 1969 Vienna Convention approved the concept of jus cogens and detailed its particular implications as part of positive international law, the debate as to the feasibility of this concept should be over. However, the current debate, while maintaining the adherence to the overall concept of jus cogens, questions its particular implications, either because those who take this view ask for extra evidence, or they are not confident that they can sell to the relevant legal audiences the view that the peremptory nature of the rule relates not to its binding force but to its normative implications. This contribution addresses the merit of this debate, and highlights the merit of jus cogens in relation to objective treaty obligations, sources of international law and the law of State immunity. Examining all the available evidence, this contribution concludes that the adherence to the ‘narrow’ version of the jus cogens doctrine, notably in cases relating to State immunity, represents not an accurate statement of the legal position, but political and ideological choices made and maintained by national and international courts.
Alexander Orakhelashvili
Chapter 6. Genesis, Function and Identification of Jus Cogens Norms
Abstract
Against the backdrop of scepticism in legal writings, the purpose of this chapter is to assess which functions jus cogens can fulfil. It takes up the genesis of the concept and shows that state and court practice display a rather narrow notion with respect to the functions of the jus cogens principle. This is due to the definition and legal consequences laid down in the Vienna Convention on the Law of Treaties and the International Law Commission’s codifications, which suggest a legal formalist approach with respect to the identification of peremptory norms. The ways in which jus cogens is presented as an argument today are at times contradictory, but do not justify fear of abuse. However, they point at a role, which is more significant than the technical functions of jus cogens, namely its symbolic value in that the concept of jus cogens denotes basic conditions of collective and individual self-determination, most notably in the area of human rights. In that function, it lends itself for legal policy purposes. Ensuing uncertainties of content are a problem not genuinely linked to jus cogens, and they must be addressed with respect to the underlying obligations rather than to the concept itself. However, they advocate in favour of a narrow concept of peremptory norms.
Stefan Kadelbach
Chapter 7. Jus Cogens as the ‘Highest Law’? Peremptory Norms and Legal Hierarchies
Abstract
Peremptory norms are often regarded as the only true instances of hierarchy in international law. Many legal arguments derive particular consequences from the special status of jus cogens in the legal hierarchy. This prominence of the notion of hierarchy contrasts with conceptual uncertainties. For this reason, the present chapter sets out four different concepts of hierarchy—structural, substantial, logical and axiological hierarchies. In a second step, the aspects that account for the special status of jus cogens—invalidity as a consequence of a conflict, non-derogability and derogatory power, a qualified law-making procedure and recognition of moral paramountcy—are analysed within the framework of these four types of hierarchy. Referring also to further attributes defining the special status of jus cogens, this part explores whether the various attributes of jus cogens can be explained on the basis of a coherent and non-circular concept of hierarchy. The chapter concludes by reflecting on how to increase the effectiveness of morally paramount norms through jus cogens arguments and beyond. Ultimately, a more gentle approach that does not view jus cogens as a trump card will be not only conceptually more convincing but also make peremptory norms more effective.
Thomas Kleinlein
Chapter 8. In Quest of the Practical Value of Jus Cogens Norms
Abstract
While recognition of jus cogens norms is nowadays largely undisputed it remains a question surrounded by ambiguities and uncertainties. Nonetheless, one can assert that it is part of customary law. In fact, its customary status pre-dates its incorporation in the Vienna Convention on the Law of Treaties with respect to both jus cogens and jus cogens superveniens. Its customary nature fosters the applicability of jus cogens beyond the purview of treaty law. While the notion has gradually permeated international case law, its rhetorical force has not yet translated into solving a legal dispute at the inter-state international responsibility system. Developments in the fields of human rights and international criminal law suggest that the time is ripe to move onto such a stage: jus cogens inherent force may serve as means for compelling respect for the commands and prohibitions of international law beyond the traditional state-centred system. Dispelling some unfounded assumptions about potential disrupting effects in international relations that would ensue from developing the legal effects of jus cogens and jus cogens superveniens, in tandem with judicial interpretation of crucial questions that may arise (e.g. intertemporality and separability of treaty provisions) may advance such an endeavour. It is further argued that jus cogens and jus cogens superveniens can have a sound impact beyond the realm of treaty law, where its contours and effects still require further development in international case law. Reparations for breaches of jus cogens or for violations of international obligations involving underlying compliance with jus cogens may contribute to further the notion’s practical value.
Elizabeth Santalla Vargas
Chapter 9. Constitutional Conversations in the Anthropocene: In Search of Environmental Jus Cogens Norms
Abstract
This chapter investigates the existence of environmental jus cogens norms and the possibility of extending peremptory norms into the environmental domain. For this purpose, the chapter briefly describes the trite manifestation and use of jus cogens in international law. It then surveys the current doctrinal state of the art to determine to what extent it could be said that certain norms may or may not have attained the status of jus cogens in the international environmental law (IEL) domain. The latter analysis is then extended to present the reasons for and possible obstacles currently countering, from a theoretical and practical point of view, the adoption of environmental jus cogens norms. The final part of the chapter follows a re-imaginary approach to determine which IEL norms could in future qualify for jus cogens status through the lens of the informally proposed Anthropocene geological epoch.
Louis J. Kotzé
Chapter 10. Non-refoulement as Custom and Jus Cogens? Putting the Prohibition to the Test
Abstract
The norm of non-refoulement is at the heart of the international protection of refugees yet there remains a lack of consensus as to its status. In this contribution, we examine the question whether it has attained the status of a jus cogens norm. Adopting the methodology of ‘custom plus’ we first examine whether non-refoulement has attained the status of custom, concluding that widespread state practice and opinio juris underpin the view that it is clearly a norm of customary international law. Moreover, much of this evidence also leads to the conclusion that it is ripe for recognition as a norm of jus cogens, due to its universal, non-derogatory character. In other words, it is a norm accepted and recognised by the international community of states as a whole as a norm from which no derogation is permitted. The chapter then examines the consequences for its recognition as jus cogens, exploring some of the many ways in which jus cogens status may have meaningful implications for the norm of non-refoulement.
Cathryn Costello, Michelle Foster
Chapter 11. Improving Compliance: Jus Cogens and International Economic Law
Abstract
The relationship of jus cogens and international economic law has largely remained unexplored, despite close linkages at the inception of jus cogens when slave trade and slavery was banned. The paper expounds the potential of international economic law for the realisation and enforcement of jus cogens, in particular of core labour standards and basic human rights. The right to protect ordre public values in international trade and investment law by means of import restrictions and conditioning investment by host states, respectively, provides an important basis to enforce values protected by jus cogens. However, recourse to process and production methods (PPMs) and conditionalities does not reach jus cogens in a comprehensive manner, and additional remedies need to be developed in international economic law, in particular relating to corporate social responsibility and finance and monetary affairs. Questioning the fundamental civil law distinction of jus cogens and jus dispositivum, the paper submits to conceive jus cogens as a matter of Common Concern of Humankind and to conceptualise protection and enforcement under this emerging doctrine, obliging states to cooperate but also take unilateral action if necessary.
Thomas Cottier
Chapter 12. Jus Cogens in International Investment Law and Arbitration
Abstract
Despite growing reference to jus cogens in the jurisprudence of international courts and scholarly writings, the concept remains vague. What is jus cogens? Why does it matter? What are its effects? These questions remain unsettled, and the time is ripe for further in-depth investigation. This chapter aims at addressing this set of questions, focusing on the role of jus cogens in international investment law and arbitration. Jus cogens has played an important role in the evolution of international investment law, and illuminating the trajectory of this concept is important for the future of the field. In fact, not only can the study contribute to further clarifying the concept of jus cogens but it can also reinforce the perceived legitimacy of the international investment law system. These developments can be significant for international investment lawyers, international law scholars and other interested audiences.
Valentina Vadi

Dutch Practice in International Law ‘Dutch Practice in International Law’: An Introductory Note

Frontmatter
Chapter 13. Immunities of International Organizations Before Domestic Courts: Reflections on the Collective Labour Case Against the European Patent Organization
Abstract
The Netherlands is home to a substantial number of international organizations, which on the basis of international agreements are entitled to immunity from jurisdiction and enforcement before Dutch courts. This immunity grant has not stopped claimants from suing international organizations in The Netherlands, sometimes successfully. Dutch courts have indeed proved willing to entertain claims that a particular activity of the organization was not necessary for the fulfilment of its functions, or that the organization failed to offer an alternative remedy. In a recent case against the European Patent Organization, a Dutch court dismissed the organization’s immunity on the ground that it failed to offer an alternative remedy and that the impugned substantive violations rose to the level of fundamental rights violations. The author supports this approach, with some reservations, but regrets the quasi-absolute immunity from enforcement which international organizations continue to enjoy.
Cedric Ryngaert
Chapter 14. Judicial Review on the Island of Saint Martin: An Example for The Kingdom of the Netherlands?
Abstract
In its first judgment, the Constitutional Court of Saint Martin reviewed the constitutionality of the island’s new penal code in the light of both the government’s positive obligation to ensure the welfare of animals and the Strasbourg Court’s Vinter decision which calls into question the legitimacy of life imprisonment. In doing so, the Court could show the way to courts in The Netherlands and abroad, both for its acceptance of judicial review of statute law against fundamental social rights and its openness towards the European Court of Human Rights’ jurisprudence. In addition, the Court managed to strike a convincing balance between an all-too-conservative form of judicial restraint on the one hand, and excessive interference in political matters on the other.
Roel Schutgens, Joost Sillen
Chapter 15. Between Pretence and Practice: The Dutch Response to Recommendations of International Human Rights Bodies
Abstract
How do countries respond to international criticism and recommendations of international human rights bodies? Do they take it seriously and act upon it or do they dismiss it and then hide it among other documents? This chapter reflects upon these questions as far as The Netherlands is concerned. It reveals a gap between rhetoric and reality in The Netherlands. While The Netherlands champions itself as a leading human rights country that takes international human rights criticism seriously, the preliminary reaction of government officials or Member of Parliaments (MPs) to international criticism is often defensive. This gap between pretence and practice can, however, be bridged and change can be realized when (international) recommendations are taken up and lobbied on by domestic actors. This chapter illustrates this possibility on the basis of some topical and sometimes highly divisive human rights issues in The Netherlands, including ethnic profiling, the bed, bad en brood [bed, bath and bread] discussion about assistance for rejected asylum seekers and human rights education.
Jasper Krommendijk
Backmatter
Metadata
Title
Netherlands Yearbook of International Law 2015
Editors
Maarten den Heijer
Harmen van der Wilt
Copyright Year
2016
Publisher
T.M.C. Asser Press
Electronic ISBN
978-94-6265-114-2
Print ISBN
978-94-6265-113-5
DOI
https://doi.org/10.1007/978-94-6265-114-2