3/11/2019

Nasif Mustahid & Sabyasachi Bhattacharjee

BA.LLB(H)
SEMESTER VIII
 ACKNOWLEDGEMENT
We would like to express our special thanks of gratitude to our Public
International Law teacher, Mr. Souvik Mukherjee, who gave us the
golden opportunity to work on the topic: “Law of Treaties & the concept
of Jus Cogens”. We came to know about so many new things and we are
really thankful for it.
Secondly, we would like to thank our friends who have helped us a lot in
finalizing this project within the limited time frame.

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 INTRODUCTION

Treaties are the principal source of Public International Law.

The Vienna Convention on the Law of Treaties defines a ‘treaty’ as ‘an

international agreement concluded between States in written form and
governed by international law, whether embodied in a single instrument
or in two or more related instruments and whatever its particular
designation’ (Article 2(1)(a)).

A treaty is an agreement between sovereign States (countries) and in

some cases international organisations, which is binding at international
law. An agreement between an Australian State or Territory and a foreign
Government will not, therefore, be a treaty. An agreement between two or
more States will not be a treaty unless those countries intend the
document to be binding at international law.

Treaties can be bilateral (between two States) or multilateral (between

three or more States). Treaties can also include the creation of rights for
individuals.

Treaties are commonly called 'agreements', 'conventions', `protocols' or

`covenants’, and less commonly `exchanges of letters'. Frequently,
declarations are adopted by the UN General Assembly. Declarations are
not treaties, as they are not intended to be binding, but they may be part
of a process that leads ultimately to the negotiation of a UN treaty.
Declarations may also be used to assist in the interpretation of treaties.

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The Vienna Convention on the Law of Treaties

Vienna Convention on the Law of Treaties, an international agreement

governing treaties between states that was drafted by the International
Law Commission of the United Nations and adopted on May 23, 1969,
and that entered into force on January 27, 1980.

A convention governing international treaties was one of the first efforts

undertaken by the International Law Commission, and James Brierly was
assigned as special rapporteur in 1949 to address the subject. After his
resignation in 1952, each of his successors began the work anew. Sir
Humphrey Waldock, appointed in 1961, produced six reports from which
the commission was able to create a draft to submit to the UN General
Assembly in 1966 with a recommendation that a conference be convened
to conclude a convention based on the draft. The conference held its first
meeting in 1968, and the convention was adopted at its second session the
following year.

The convention applies only to written treaties between states. The first
part of the document defines the terms and scope of the agreement. The
second part lays out the rules for the conclusion and adoption of treaties,
including the consent of parties to be bound by treaties and the
formulation of reservations—that is, declining to be bound by one or
more particular provisions of a treaty while accepting the rest. The third
part deals with the application and interpretation of treaties, and the
fourth part discusses means of modifying or amending treaties. These
parts essentially codify existing customary law. The most important part
of the convention, Part V, delineates grounds and rules for invalidating,
terminating, or suspending treaties and includes a provision granting the
International Court of Justice jurisdiction in the event of disputes arising

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from the application of those rules. The final parts discuss the effects on
treaties of changes of government within a state, alterations in consular
relations between states, and the outbreak of hostilities between states as
well as the rules for depositaries, registration, and ratification.

It was necessary for 35 member states of the United Nations to ratify the
treaty before it could go into effect. Although it took until 1979 to secure
those ratifications, more than half of the UN members had agreed to the
convention by early 2018. Even those members that had not ratified the
document, such as the United States, generally followed the prescriptions
of the agreement.

The Vienna Convention on the Law of Treaties of 1969 (VCLT) is the

main instrument that regulates treaties. It defines a treaty and relates to
how treaties are made, amended, interpreted, how they operate and are
terminated. It does not aim to create specific substantive rights or
obligations for parties – this is left to the specific treaty (i.e. the Vienna
Convention on Diplomatic Relations creates rights and obligations for
States in their diplomatic relations).

VCLT governs treaties irrespective of its subject matter or objectives –

e.g.: treaties to regulate conduct of hostilities (Geneva Conventions on
1949); treaties setting up an international organisation (UN Charter of
1945); and treaties regulating matters between States and other parties on
the law of the sea (UN Convention on the Law of the Sea of 1982).

VCLT is a “treaty on treaties”.

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 CONCEPT OF JUS COGENS

The rules of jus cogens (also known as peremptory norm) are derived
from the customary international law, and it is a rule or principle which is
so fundamental that it binds all states and does not allow any exceptions.
They are ‘accepted and recognized by the international community of
States as a whole which can be modified only by a subsequent norm of
general international law having the same character’. Article 53 of the
Vienna Convention on the Law of Treaties (VCLT)1969 states that, ‘a
treaty is void if, at the time of its conclusion, it conflicts with a
peremptory norm of general international law’. Article 64 of the VCLT
1969 further enhances its importance by giving it retrospective effect –
existing treaty which is in conflict becomes void and is terminated.

On the same note, natural law also played a prominent role in the
development of jus cogens in international law. However, Hasmath stated
that it places foundations of jus cogens on shaky grounds, as jus cogens
norms are essentially a social construction.

The concept of jus cogens was said to be popularised by Verdross. He

defined it as the ‘ethical minimum recognized by all the states of the
international community’, which includes the obligation to undertake
certain ‘moral task’, such as ‘maintenance of law and order within states,
defense against external attacks, care for the bodily and spiritual welfare
of citizens at home, and protection of citizens abroad’. It, as pointed out
by Lauterpacht, also operates as a concept superior to both customary
international law and treaty. Although this concept is important, the
International Law Commission remarked that ‘there is no simple criterion
by which to identify a general rule of international law as having the
character of jus cogens’.

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Also, as noted by Yasseen, a State or a minority number of States which
refuse to accept the peremptory character of the rule, the acceptance and
recognition as jus cogens by all other States would not be affected,
because a mere majority would suffice, and the minority States will not
be able to opt out for long as they will loss certain privileges.

Nevertheless, the rules of jus cogens have several important elements in

the international legal context. Special Rapporteur R. Ago stated that, the
rules of jus cogens which made of norms laying down international
obligation ‘so essential for the protection of fundamental interest of the
international community that their breach was recognized as a crime by
that community as a whole’ (emphasis added), and it has now been
crystallised in Article 40 of the Draft Articles on Responsibility of States
for Internationally Wrongful Acts 2001. The use of force against the other
territory was held by the International Court of Justice in Nicaragua v
USA as wrongful act under the jus cogens rules. Slave trade, genocide,
racial discrimination and apartheid are also categorised as wrongful acts
within the contemporary of jus cogens rules.

Moreover, as noted by Cassese, jus cogens has meta-legal effect, where

he cited the case of Prosecutor v Anto Furundzija, which, the court ruled
that jus cogens has a ‘deterrent effect, in that it signals to all members of
the international community and the individuals over whom they wield
authority that the prohibition… is an absolute value from which nobody
must deviate’. Also, the Swiss Constitution of 18 April 1999, Article
139(2), states that if the law of nation which violates the international law,
the Federal Assembly shall declare it invalid, whether as a whole or in
part.

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In addition, it can be said that jus cogens is there to protect and uphold
human dignity and rights. Criddle and Fox-Decent stated that the jus
cogens rules will trigger the fiduciary principle, where any entity and
States that ‘assumes unilateral administrative power over individuals
bears a fiduciary obligation to honor the basic demands of dignity, which
includes the peremptory norms of international jus cogens’. As mentioned
above, any activities or treaties carried out by the States or international
organisations which offended human dignity and rights are contrary to the
concept of jus cogens, will be considered null and void.

Jus cogens has also an effect on the doctrine of state immunity. The
general rule is that all States have the immunity from being sued by the
others. This can be clearly seen in Al-Adsani v Kuwait, where the
claimant brought an action for damages in tort against the Kuwait
government, claiming that he has been tortured by the officials of Kuwait.
It was held that the government of Kuwait was entitled to immunity from
being sued. This has been affirmed by the European Court on Human
Rights. But the minority judges in the European Court on Human Rights
stated that ‘the jus cogens nature of the prohibition of torture entails that a
State allegedly violating it cannot invoke hierarchically lower rules… to
avoid the consequences of the illegality of its actions’, and stated that
Kuwait could not ‘hide behind the rules on State immunity to avoid
proceedings for a serious claim of torture’. Caplan pointed out that state
immunity is not jus cogens, it ranks lower in the hierarchy of
international law norms, and therefore can be overcome when a jus
cogens norm is at stake, so that human rights victims is able to seek legal
redress. This can be clearly seen in R v Bow Street Metropolitan
Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No. 3), the
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House of Lords ruled that when there is an issue of crime against
humanity, the State Immunity Act 1978 shall be inferior to the rules of jus
cogens.

In conclusion, jus cogens rules are derived from the customary

international law and natural law. Although jus cogens come with its own
sets of problems, it still plays a vital role in international law as discussed
above.

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 CONCLUSION

Nothing seems to be uncontroversial at every mention of jus cogens. Its

very existence in the VCLT remains a subject of debate by scholars. Its
practical usefulness on the other hand has been burdened by lack of a
clear definition, lack of a procedure for its determination and doctrinal
weaknesses. The ambiguous nature of jus cogens remains the only
positive feature providing an avenue for scholars to baptize any ordinary
norm into the category of jus cogens. Even though scholars agree that
there exists in the international community a set of norms the violation of
which render all treaties void, such norms are not easily identified and in
the absence of state practice everything has been left to speculation. With
the ICJ taking a peripheral role, scholars have taken centre stage with the
hot topic to display their intellectual prowess. Fundamental questions
raised remains unanswered for example what is the utility of a norm of
Jus cogens, how does the jus cogens norm arise and once it has
arisen how the same can be modified.

None of the scholars dare to give unchallenged answers to these questions

and we await the ICJ in the case before it to clarify the pertinent issues. It
is clear that the concept lacks a proper theoretical foundation and it
appears to be wavering trying attempts here and there and the absurdity is
that it seems to be making commendable progress.

We can only fall to arguments by scholars who have finally admitted that
its existence is only visionary in the international legal order.

Nevertheless jus cogens remains a symbol of fundamental values in the

society. This appears in the way it has curved certain crimes as jus cogens
and violation of such crimes brings a whole different dimension in the

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international arena. Its vision is greater and it cannot anymore be
contained in the VCLTs. It would certainly cause upheavals and
destabilize most areas in the international realm. With all the glaring
weaknesses attributed to it by scholars if weighed against what jus cogens
has achieved or yet to achieve it remains an enigma in international law.

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 BIBLIOGRAPHY

 All Answers ltd, 'nature and the importance of jus cogens

rules' (Lawteacher.net, March 2019)
<https://www.lawteacher.net/free-law-essays/internatio
nal-law/nature-and-the-importance-of-jus-cogens-rules-la
w-essay.php?vref=1> accessed 10 March 2019

 Vincent Robi, ' A critical analysis of the scope and

application of jus cogens' ( academia.edu) <
https://www.academia.edu/4382796/A_critical_analysis_
of_the_scope_and_application_of_jus_cogens> accessed
10 March 2019

 Kamrul Hossain, ' The Concept of Jus Cogens and the

Obligation Under The U.N. Charter'
( digitalcommons.law.scu.edu 1-1-2005) <
https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?
article=1011&context=scujil> accessed 10 March 2019

 Article 53 - Treaties conflicting with a peremptory norm of

general international law (jus cogens)' ( www.jus.uio.no )
<
https://www.jus.uio.no/lm/un.law.of.treaties.convention.
1969/53.html> accessed 10 March 2019

 Ulf Linderfalk, ' The Creation of Jus Cogens – Making

Sense of Article 53 of the Vienna Convention'
( http://www.zaoerv.de 2011) <
http://www.zaoerv.de/71_2011/71_2011_2_a_359_378.
pdf> accessed 10 March 2019

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