Back

Dictionary of Gross Human Rights Violations


Jus Cogens

 By - Kjell Follingstad Anderson

Jus cogens is a body of peremptory principles of international law that are universal and non-derogable.  In effect, jus cogens (Latin for "compelling law) represent fundamental norms of international law that apply to all states.  Jus cogens is the highest branch of law because it supersedes all other types of law.  In fact, if a treaty is drafted in violation of jus cogens than the treaty is rendered null and void.

The concept of jus cogens originated in the 19th century.  Two relatively early examples of the use of jus cogens in judicial proceedings are the decision of the French-Mexican Claims Commission in the 1928 Pablo Nájera Case; and then at the Permanent Court of International Justice in the opinion of Judge Schücking in the 1934 Oscar Chinn Case.1  More recently, reference has been made to jus cogens in numerous cases before the International Court of Justice (ICJ, or World Court).

The origin of jus cogens norms remains a matter of some dispute.  Some commentators argue that treaty law reinforces jus cogens while others argue that the universal and non-derogable nature of jus cogens means that it exists irrespective of any treaties.  There is also some controversy over the criteria required for a legal principle to become jus cogens but there appear to be four general criteria (according to Article 53 of the Vienna Convention on the Law of Treaties:

  1. status as a norm of general international law;
  2. acceptance by the international community of states as a whole;
  3. immunity from derogation; and
  4. modifiable only by a new norm having the same status.

The interpretation of "acceptance by the international community of states as a whole" is also somewhat disputed, but it is generally accepted that it means that most states must accept the principle as being a fundamental norm - not that all states must accept it (this would give individual states too great a power of veto).

The following are generally considered jus cogens norms (this is not necessarily an exhaustive list): the prohibition on the aggressive use of force, war crimes, genocide, crimes against humanity, slavery, racial discrimination, piracy, and torture.  Since the Nuremberg Tribunal it has also been accepted that jus cogens is applicable to individual, criminal liability.  The concept of jus cogens is closely related to universal jurisdiction as all crimes that are jus cogens also enjoy universal jurisdiction.  For example, the International Criminal Tribunal for the Former Yugoslavia (ICTY) determined in Prosecutor v. Furundžija that there is a jus cogens for the prohibition against torture.  It also stated that universal jurisdiction applied to torture as "the torturer has become, like the pirate and the slave trader before him, hostis humani generis, an enemy of all mankind."

The status of such gross human rights violations as genocide and crimes against humanity as jus cogens reflects the importance of these crimes and their universal condemnation.

Notes

 1  Kamrul Hossain, "The Concept of Jus Cogens in International Law," The Daily Star, http://www.thedailystar.net/law/2005/01/03/alter.htm, accessed April 15, 2007.

Back