Jus Cogens

The preamble of Vienna Convention on law of Treaties 1969 refers to the right of Sovereign equality, Right of Self-Determination, non-interference in domestic affairs of state, human rights and fundamental freedoms as principles of International law. Article 4 recognises certain norms of International law as applicable to all and does not affect its applicability to any treaty before or after coming into force of VCLT. Article 53 attempts to give definition of Jus Cogens as Peremptory norm of International law accepted and recognised by International Community of State and further renders any treaty in conflict with peremptory norms of international law as void. The preamble of VCLT also refers to customary rule of international law as governing the treaties in the sphere not regulated by present Convention. Article 64 renders an existing treaty void if in conflict with new peremptory norm of international law which came into creation after execution of treaty. Thus a treaty will be void for being in conflict with existing peremptory norm, and an existing treaty which otherwise was valid when created might become void upon coming into existence of new peremptory law. Thus VCLT recognises a higher norm distinctly recognised by general practise of states as creating a binding obligation on states. In the provisions discussed above, the convention has accepted existence of a norm which is inviolable, and has placed limitation on the autonomy of the will of states to execute treaties or laws inconsistent with it. Thus there exists an overriding principle of International Law which is sacrosanct, inviolable and constituting of International public policy, which International community seeks to protect and preserve. These are the fundamental values in which every member of human community has a vested Right, and from which no derogation is permissible either through state act or treaty. It is also characterised as International Public order accepted by all states as constituting fundamental basis of all law and is called Jus Cogens. These characteristics distinguish Jus Cogens from Jus dispositivism which means International norms which can be altered by will of the state.

The special Rapporteur to International Law commission in his First report titled “Jus Cogens” said that description of ICJ of the values underlying the convention on the prevention and punishment of the crime of Genocide provides apt description of Jus Cogens. The Court in the case Concerning Armed Activities on the Territory of the Congo identifies prohibition of genocide as having character of jus cogens. The important element of Jus Cogens is its Universal applicability, superiority to other norms of international law, norm which serves to protect fundamental values of international community of the kind which is international public order (First Report on Jus Cogens by ILC 2016, 26, 38, 44). The Special Rapporteure in his Third report said that there was universal agreement that customary International law was the most common basis for jus cogens norms however in Draft Conclusion 15, it is stated that a Customary International law rule does not arise if it conflicts with a peremptory norm of General International law (Jus Cogens). It is further concluded that customary international rule not of jus cogens character ceases to exist if a new peremptory norm of general international law arises (Third Report on Peremptory norms of general International Law by ILC 2018 , 225-227). Thus Jus Cogens is hierarchically superior than other norms of International law (First Report on Jus Cogens by ILC 2016, 45). For customary international law to acquire that character two conditions which must be fulfilled is, settled general practise having wide prevalence between states and acceptance of such practise as law (opinio juris). Noted author Anthony Aust in his classic work Modern Law of Treaties states that the only universally accepted example of Jus Cogens is the prohibition on the use of force as laid down in the UN Charter. The prohibitions on genocide, slavery and torture may also be said to be jus cogens. Vast majority of the rules of International law do not have the character of jus cogens, hence a treaty in conflict with general international law is therefore not necessarily void ( Aust 2007, 319-320). The Special Rapporteur of ILC in his fourth Report distinctly identifies Prohibition of agression or force, Prohibition of genocide, slavery, apartheid and racial discrimination, crimes against humanity, prohibition of torture, right to self-determination and basic rules of International Humanitarian rule as having acquired status of Jus Cogens ( Fourth Report on Peremptory Norms of International law by ILC 2019, 55).

Article 71 of Vienna Convention provides for consequences of a treaty being void for in conflict with peremptory norm of general international law. The parties are required in law to eliminate consequences of act performed in reliance of provision which is in conflict with Jus Cogens in addition to taking such measures that their mutual relations are brought in conformity with peremptory norm. For a treaty in violation of Article 64, it releases parties from any obligation to perform treaty. However such a release from future obligation does not affect any right or obligation prior to its termination.

Thus Jus Cogen norms are the most sacrosanct norms from which no derogation is permitted either by consent or by any other method. They are hierarchically superior than either Customary international law or General principle of international law or treaty provisions between parties.