International law take home exam, The exam is attached, all the instructions are attached below you just have to key word the questions, If u take anything from the slides make sure you add the chapter and slide number, also there is 4 short questions at
Michelle_Michy
20190415202016chpt_11_jus_cogens.pptxThe Hierarchy of Rules in IL: The Role of Jus Cogens
Chpt 11 Cassese
11.1 Jus Cogens
Was there a hierarchy of laws in the traditional law period?
No
What is meant by hierarchy?
Modern law holds jus cogens as supreme laws, with both custom and treaty law falling below it
11.1 Traditional International Las
What is the hierarchical relationship between custom and treaty law?
There is no hierarchy, they are equivalent
What if a custom or treaty law is inconsistent with jus cogens?
Then the treaty or custom is null and void
11.1 Traditional International Law
What are jus cogens?
Peremptory Norms
‘compelling laws’
Fundamental principles of international law that apply to all States
11.2 The Emergence of Jus Cogens
What do jus cogens ban?
Genocide
maritime piracy
slaving (slavery & the slave trade)
Torture
wars of aggression and territorial aggrandizement
self-determination
Racial discrimination/apartheid
Massive pollution atmosphere of the seas
11.2 The Emergence of Jus Cogens
How and when were jus cogens adopted by the international community?
1960s
Pushed by 2nd (Socialist / Communist) and 3rd world countries (Africa, Asia), accepted by Western Developed countries due to liberal ideals
11.2 The Emergence of Jus Cogens
Why did 2nd (Socialist / Communist) and 3rd world countries (Africa, Asia) seek to create a supremacy for a certain portion of laws?
Self determination
2nd World thought that this would prevent 1st world from prevent/inhibiting/attacking 2nd World countries (that it would protect them)
3rd World thought that this would aid their efforts for independence
11.2 The Emergence of Jus Cogens
Why did the 1st World (Western Democratic States) agree to create supreme laws of jus cogens?
What would constructivists say?
Really hard to disagree with outlawing torture, aggression, genocide etc.
11.2-3 Jus Cogens
Is there a convention, treaty, act specifically on Jus Cogens?
NO, not really
We have treaties related to Jus Cogens though, what are some of these treaties?
Vienna Convention on the Law of Treaties
Geneva Conventions
UN Convention Against Torture 1984
Convention on the Prevention and Punishment of the Crime of Genocide 1945
UN Convention on Torture
Light green—Signed
Dark green--Ratified
UN Convention on Genocide
Light green—signed and ratified
Dark green—acceded
11.3 Jus Cogens
What treaty gives special treatment/discussion of Jus Cogens?
Vienna Convention on the Law of Treaties, 1969
Pg 200: Vienna was sort of a package deal, jus cogens was accepted, but on the condition that any State invoking it be prepared to submit its determination to the ICJ
Vienna Convention on Law of Treaties
Light green—States that have signed
Dark green—States that have ratified
Article 53 of Vienna Con. on Law of Treaties
"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."
Limits to Jus Cogens
The concept of jus cogens is at odds with some in the international community, why?
Over issue of sovereignty
11.3 Establishment and Score of Jus Cogens
How can jus cogens be enforced?
If both parties have ratified the Vienna Convention and relating treaties (torture, genocide etc)
Through formal objections (12 months)
Then through legal channels…if the offending party agrees
Has this been done very often?
No
11.4 Instances of Peremptory Norms
So how are Jus Cogens used then?
While Jus Cogens has not specifically been used by one State against another, nor has the ICJ settled any disputes of weather a specific rule is a Jus Cogens,
they are often discussed in treaty making, and apply to the UN Security Council’s decisions
11.5 Limitations of Jus Cogens as Envisioned by the Vienna Convention
How are Jus Cogens limited in their scope and applicability according to the Vienna Convention on Treaties?
A State may only invoke Jus Cogens, when they are both a party to the Vienna Convention and a multilateral treaty that may be in violation of Jus Cogens
Odd?
Yes
11.6
So all of this is technically true, however, debatably, jus cogens are entering into customary international law
Therefore, whether you have ratified Vienna Convention or not, it doesn’t really matter
Therefore anyone can bring a Jus Cogens suit, but a State can refuse to patriciate in mediation, conciliation, arbitration, litigation and claim that they are not beholden to the Vienna Convention
11.8 Jus Cogens
Cassese mentions in some circumstances jus cogens may have universal jurisdiction. What does this mean?
State claims on the grounds that the crime committed is considered a crime against all, which any State is authorized to punish, as it is too serious to tolerate jurisdictional arbitrage
11.9 Jus Cogens
What about extradition of individuals suspected of violating a jus cogens?
IF there is a fear that the individual charged with violating the jus cogen will go unpunished in another state, or will not receive a fair trail……then they can be tried by the State who apprehends the individual
Jus Cogens
International Criminal Tribunal for the Former Yugoslavia (ICTY)
Prosecutor v. Furundžija that there is a jus cogens for the prohibition against torture.
It also stated that universal jurisdiction applied to torture as "the torturer has become, like the pirate and the slave trader before him, hostis humani generis, an enemy of all mankind."
11.9 National Courts using Jus Cogens
Switzerland modern case pg 210-211
