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An Analysis on Principle of Jus Cogens vis-a-vis Treaty Law




Introduction


The progress of International law and its recognition has been a gradual process. International law has been described as “one of the possible sets of laws for ordering the world” being based “on the wills of all or many nations.” [1] The principle of Jus Cogens was developed under the strong influence of natural law concepts. The literal meaning of Jus Cogens is “compelling law”.[2] The Jus Cogens norms are peremptory in nature and any other rules contrary of such norms are void. As a result, jus cogens rules gained the nature of international constitutional rules for two reasons. First, the ability of states to change or create laws becomes limited. Second, the states are prevented from violating these norms as it may result in violation of international legal system.[3]



Treaties Violating Jus Cogens- Void or Invalid?


The International Law Commission (ILC) after having a considerable discussion concluded that a treaty which conflicts with a peremptory norm, such treaties would be void ab initio. This consensus finally reached as to a definition during the Vienna Conference held in 1969 (“the Vienna Conference”) and this was codified in Article 53 & 64 of the Vienna Convention on the Law of Treaties 1969 (“the Vienna Convention”). Articles 53 and 64 of the Vienna Convention therefore provide as a general principle that a treaty is or becomes void if it conflicts with either an existing peremptory norm or an emerging peremptory norm, respectively.[4] But finding these treaties void many years after it has been entered into leave an impact on several acts and agreements carried out under these treaties. Therefore, ILC has particularly stressed that a treaty which has been established on a valid ground and consequences, such a treaty might be terminated but should not be held void. However, the legal obligations and rights which conflict with the new norm cannot be sustained. Therefore Article 71 of the Vienna Convention states the consequences of a conflicting treaty: –


“1. In the case of a treaty which is void under article 53 the parties shall: (a) eliminate as far as possible the consequences of any act performed in reliance of any provision which conflicts with the peremptory norm of general international law; and (b) bring their mutual relations into conformity with the peremptory norm of general international law.


2. In the case of a treaty which becomes void and terminates under article 64, the termination of the treaty:

(a) releases the parties from any obligation further to perform the treaty; (b) does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination; provided that those rights, obligations or situations may thereafter be maintained only to the extent that their maintenance is not in itself in conflict with the new peremptory norm of general international law.”[5]


The first article, nullifies a treaty void as being contrary to pre-existing peremptory and second, nullifies a treaty as conflicting with emerging peremptory norms. In the case of the latter, it states that recognition of the new peremptory norm does not render the treaty void. It means there won’t be any retrospective effect on the emerging jus cogens and the treaty in question will be deemed to have been valid and to have produced valid consequences. However, any “rights, obligations or legal situations may only be maintained to the extent that their maintenance is not in itself in conflict with the new peremptory norm of general international law.[6]



Uncertainties of Jus Cogens


The norms under Jus Cogens are considered superior compared to the other norms under international law. But today, jus cogens put several limitations on the ability of states to change or introduce new norms. Unfortunately, every state must adhere to the rules of Jus Cogens regardless of their opinion or consent. States consider these rules to be so important to the international society of states and to how the society defines itself that they cannot conceive an exception and cannot, therefore, escape liability.[7] International laws and decisions only have an advisory role and none of their provisions are enforceable as the law of any state. Hence, when it comes to the enforceability of jus cogens, several states under an obligation have not initiated any noticeable provisions for the implementation of the same which raises numerous queries on the existence and requirement of the widely recognized norms.[8] Problems also remain as to the application of the norm, in terms of which rules must necessarily be covered under the said norms. There were serious doubts concerning the fact that the norm could be misused in interpreting the rules to be covered under Jus Cogens.[9]


Conclusion


Jus cogens have been in existence since 1969 and the whole idea behind establishing such norms was to establish justice and peace among nations. But the whole problem with Jus Cogens is that it is not used as a standard for evaluating law, but it is defined as the law itself. But often these norms lead to confusion. It is applied as a depiction to rules which, if treated as though they really were non-derogable, would do more harm than good in many situations. The means most often suggested for determining its content lack both the authority and the capability to carry out the task.

[1] Navia. Rafeal, “International Premptory Norms and International Humanitarian Law”, available at http://www.iccnow.org/documents/WritingColombiaEng.pdf.

[2] Kamrul Hossain, “The Concept of Jus Cogens and the Obligation Under The U.N. Charter”, 3 SantaClaraJ. Int’lL. 72 (2005), available at ://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1011&context=scujil.

[3] Ogilvy, Graham (2009) “Belhas v. Ya’Alon: The Case for a Jus Cogens Exception to the Foreign Sovereign Immunities Act,”Journal of International Business and Law: Vol. 8: Iss. 1, Article 10, available at https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1108&context=jibl.

[4] Supra note 1.

[5] Vienna Convention, available at https://www.oas.org/legal/english/docs/Vienna%20Convention%20Treaties.htm.

[6] Supra note 2.

[7] Paliwala, Mariya, “Doctrine of Jus Cogens under International Law”, available at https://blog.ipleaders.in/jus-cogens/.

[8] Supra note 3.

[9] Ibid.


Contributed by: Prachi Shah


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