In Quest of the Practical Value of Jus Cogens Norms

Abstract

While recognition of jus cogens norms is nowadays largely undisputed it remains a question surrounded by ambiguities and uncertainties. Nonetheless, one can assert that it is part of customary law. In fact, its customary status pre-dates its incorporation in the Vienna Convention on the Law of Treaties with respect to both jus cogens and jus cogens superveniens. Its customary nature fosters the applicability of jus cogens beyond the purview of treaty law. While the notion has gradually permeated international case law, its rhetorical force has not yet translated into solving a legal dispute at the inter-state international responsibility system. Developments in the fields of human rights and international criminal law suggest that the time is ripe to move onto such a stage: jus cogens inherent force may serve as means for compelling respect for the commands and prohibitions of international law beyond the traditional state-centred system. Dispelling some unfounded assumptions about potential disrupting effects in international relations that would ensue from developing the legal effects of jus cogens and jus cogens superveniens, in tandem with judicial interpretation of crucial questions that may arise (e.g. intertemporality and separability of treaty provisions) may advance such an endeavour. It is further argued that jus cogens and jus cogens superveniens can have a sound impact beyond the realm of treaty law, where its contours and effects still require further development in international case law. Reparations for breaches of jus cogens or for violations of international obligations involving underlying compliance with jus cogens may contribute to further the notion’s practical value.