DR.

RAM MAnohar lohiya national law university

Project on: Public International law: (rough draft)

Topic: status of jus cogens in

international law.

By: Abhishek Singh, Roll no: 07 b.a.l.l.b. (hons)- vth sem.

Rough draft
PREFACE: To study and analyze the relevance of Jus Cogens in International Law and how it has secured an important feature of International Law.

INTRODUCTION: Jus Cogens (also called peremptory norm or ius cogens, Latin for "compelling law") is a fundamental principle of international law which is accepted by the international community of states as a norm from which no derogation is ever permitted. It is considered to be the purest and highest form of norm or principle from which no derogation is allowed in any sense. The notion of jus cogens in international law encompasses the notion of peremptory norms in international law. In this regard, a view has been formed that certain overriding principles of international law exist which form a body of jus cogens. These principles are those from which it is accepted that no State may derogate by way of treaty. As a result they are generally interpreted as restricting the freedom of States to contract while voiding treaties whose object conflicts with norms which have been identified as peremptory.

ORIGIN AND DEVELOPMENT: The origin and development of jus cogens can be traced back to late 60s. It was the period of Second World War wherein, the states were suffering from inhumane crimes like torture, genocide, crimes against humanity, etc. There was a lot of racial discrimination, apathy and crimes against humanity. Crimes were self-destructive. Thus, the colonial states demanded for right of self-determination. And it was decided that if a thing is indecisive in nature, then it has to be approached by a mechanism of approximation. All these reasons gave rise to the principle of jus cogens and it was propounded that it shall be a norm from which no derogation shall be allowed and all treaties, conventions, rule or law shall be subject to the validity of jus cogens. They shall not be in contravention to the principle of jus cogens and shall be declared void if at all they do not follow the principle of jus cogens.

STATUS OF JUS COGENS IN INTERNATIONAL LAW: Unlike ordinary customary law, which has traditionally required consent and allows the alteration of its obligations between states through treaties, peremptory norms cannot be violated by any state "through international treaties or local or special customs or even general customary rules not endowed with the same normative force". Under the Vienna Convention on the Law of Treaties, any treaty that conflicts with a peremptory norm is void. The treaty allows for the emergence of new peremptory norms, but does not itself specify any peremptory norms. "A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character." The number of peremptory norms is considered limited but not exclusively catalogued. They are not listed or defined by any authoritative body, but arise out of case law and changing social and political attitudes. Generally included are prohibitions on waging aggressive war, crimes against humanity, war crimes, maritime piracy, genocide, apartheid, slavery, and torture. Despite the seemingly clear weight of condemnation of such practices, some critics disagree with the division of international legal norms into a hierarchy. There is also disagreement over how such norms are recognized or established. The relatively new concept of peremptory norms is at odds with the traditionally consensual nature of international law considered necessary to state sovereignty. Some peremptory norms define criminal offences which are considered to be enforceable against not only states, but individuals as well. This has been increasingly accepted since the Nuremberg Trials (the first enforcement in world history of international norms upon individuals) and now might be considered uncontroversial. However, the language of peremptory norms was not used in connection with these trials rather the basis of criminalization and punishment of Nazi atrocities was that civilization could not tolerate their being ignored, because it could not survive their being repeated. There are often disagreements over whether a particular case

violates a peremptory norm. As in other areas of law, states generally reserve the right to interpret the concept for themselves.

IDENTIFICATION OF JUS COGENS NORM: a.) The norm must be a norm of general international law. b.) The norm must be accepted and recognized by the international community of states as a whole. c.) The norm must be one from which no derogation is permitted and which can be modified only by a subsequent norm of general international law of the same character.

CONCLUSION: Jus Cogens form an integral part of International Humanitarian Law. It also holds relevance in Public International Law. 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 then the treaty is rendered null and void. Thus, this put forth the notion that jus cogens norms hold an important status in International law.

REFERENCE: Book:- Public International Law by B.N.Brownlie Public International Law by Malcom .N. Shaw URL addresses: http://www.iccnow.org/documents/WritingColombiaEng.pdf.
http://www.sharedhumanity.org/Staff.php http://en.wikipedia.org/wiki/Peremptory_norm