Human rights and the magic of jus cogens

European Journal of International Law

Volumn 19, Issue 3, 2008, Pages 491-508

  Bianchi, Andrea ^a,b  

^a Graduate Institute of International and Development Studies   (Italy)

^b UNIVERSITÀ CATTOLICA DEL SACRO CUORE   (Italy)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 48249110657     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chn026     Document Type: Article

References (114)

1. Abi-Saab, 'The Third World and the Future of the International Legal Order', 29 Revue Egyptienne de Droit International (1973) 27, at 53.
2. Abi-Saab, 'The Uses of Article 19', 10 EJIL (1999) 341.
3. 'If we can introduce in the international field a category of law, namely jus cogens, recently examined by the International Law Commission, a kind of imperative law which constitutes the contrast to jus dispositivum, capable of being changed by way of agreement between States, surely the law concerning the protection of human rights may be considered to belong to the jus cogens': Judge Tanaka's Dissenting Opinion in the South West Africa case (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, Judgment [1966] ICJ Rep 298.
4. Von Verdross, 'Forbidden Treaties in International Law', 31 AJIL (1937) 571, at 574.
5. See [1966] Yearbook of the International Law Commission, ii, at 248 (UN Doc A/CN.4/SER.A/1966/Add.1).
6. It is worth recalling that the VCLT was adopted with only one vote against, that of France, which strongly opposed the inclusion of jus cogens. For an analysis of the French position at the Vienna Conference see Deleaux. 'Les positions françaises à la Conférence de Vienne sur le droit des traités', 14 Annuaire français de droit international (1969) 7, at 14-20.
7. See René-Jean Dupuy's remarks at the meeting of the Committee of the Whole on 30 Apr. 1968 (UN Conference on the Law of Treaties, First Session Vienna, 26 Mar.-24 May 1968, Official Records, Summary records of the plenary meetings of the Committee of the Whole, at 258, para. 74).
8. See Kane's contribution in R. Cavendish (ed.), Mythology. An Illustrated Encyclopedia (1980), at 122.
9. See [1963] Yearbook of the International Law Commission, II, at 199, para. 4 and 211, para. 1.
10. According to the ILC, '[i]t is not the form of a general rule of international law but the particular nature of the subject-matter with which it deals that may, in the opinion of the Commission, give it the character of jus cogens': Yearbook of the International Law Commission. supra note 5, at 248, para. 2.
11. For Soviet doctrine that jus cogens can be created by treaty see Tunkin, 'International Law in the International System', 147 Recueil des cours (1975-IV) 1, at 92-93,
12. Alexidze, 'Legal Nature of Jus Cogens in Contemporary International Law', 172 Recueil des cours (1981-III), at 255-256.
13. Simma and Alston, 'The Sources of Human Rights Law: Custom, Jus Cogens and General Principles', 12 Australian Year Book of Int'l L (1988-1989) 82.
14. Ibid., at 105.
15. Ibid., at 108
16. quoting Henkin, 'International Law: Politics, Values and Functions: General Course in Public International Law', 216 Recueil des Cours (1989-IV) 9, at 61-62.
17. Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment of 5 Feb. 1970 [1970] ICJ Rep 3, at 32, para. 34.
18. [1976] Yearbook of the International Law Commission. II (part Two), at 95.
19. See, among others, Mosler, 'The international Society as a Legal Community', 140 Recueil des Cours (1974, IV) 1
20. Tomuschat, 'Obligations Arisingtor States Without or Against their Will', 241 Recueil des Cours (1993, IV) 195
21. Simma, 'From Bilateralism to Community Interest in International Law', 250 Recueil des Cours (1994, VI) 217.
22. See Peters, 'Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms and Structures', 19 Leiden J Int'l L (2006) 579.
23. See Bianchi, 'Globalization of Human Rights: The Role of Non-State Actors', in G. Teuber, Global Law without a State (1997), at 179, 183 ff.
24. The expression is borrowed from the well-known article by Schachter, 'The Invisible College of International Lawyers', 72 Northwestern U L Rev (1977-1978) 217.
25. M.S. McDougal, H.D. Lasswell, and Lung-chu Chen, Human Rights and World Public Order: The Basic Policies of an International Law of Human Dignity (1980), at 345.
26. (1987), at para. 702.
27. L. Fuller, The Morality of Law (rev'd edn, 1965).
28. R. Kolb, Théorie du jus cogens international. Essai de relecture du concept (2001).
29. Ibid., at 19.
30. See Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, A/CN.4/L.682, at 181-192.
31. See also the Conclusions of the International Law Commission Relating to Unilateral Acts of States, Report of the Working Group, in which 'Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations' (see, in particular, No 8) were adopted (UN Doc A/CN.4/L.706 of 20 July 2006.
32. See Ferguson's contribution to Cavendish (ed.), supra note 8, at 142.
33. See 'The History of Janus' in A. Banier, The Mythology and Fables of the Ancients Explain'd from History (1976), ii, at 261-272.
34. Prosecutor v. Dusko Tadic a/k/a 'Dule', ICTY, Decision of the Appeals Chamber on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct. 1995, at para. 43: ' [t]he legislative, executive and judicial division of powers which is largely followed in most municipal legal systems does not apply to the international setting nor, more specifically, to the setting of an international organisation such as the United Nations'.
35. The following argument is developed in greater length in Bianchi, 'The International Fight against Terrorism and the Quest for Checks and Balances. Why the Calling Sirens of Constitutionalism Should be Resisted', in A. Bianchi and A. Keller (eds), Counterterrorism: Democracy's Challenge (2008, forthcoming).
36. See Bianchi, 'Assessing the Effectiveness of the UN Security Council's Anti-terrorism Measures: The Quest for Legitimacy and Cohesion', 17 EJIL (2006) 903
37. and 'Security Council's Anti-terror Resolutions and their Implementation by Member States: An Overview', 4 J Int'l Criminal Justice (2006) 1059.
38. See the recently adopted 'Ottawa Principles on Anti-terrorism and Human Rights', available at: www.rightsandantiterrorism.ca.
39. See The European Convention on Human Rights, Due Process and United Nations Security Council Counter-Terrorism Sanctions, Report prepared by Professor Iain Cameron for the Council of Europe (2006).
40. See A/RES/57/219, A/RES/58/187, A/RES/59/191, A/RES/60/158.
41. See para. 6 of the Declaration attached to SC Res 1456 (2003), preamble to SC Res 1566 (2004) and para. 4 of SC Res 1624 (2005).
42. See A/RES/60/288.
43. Case T-306/01, Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, Judgment of the CFI, 21 Sept. 2005
44. Case T-315/01, Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Communities, Judgment of the CFI, 21 Sept. 2005
45. Case T-253/02, Chafiq Ayadi v. Council of the European Union, Judgment of the CFI of 12 July 2006
46. Case T-41/04, Faraj Hassan v. Council of the European Union and Commission of the European Communities, Judgment of the CFI of 12 July 2006.
47. Kadi, supra note 35, at para. 226
48. Yusuf, supra note 35, at para. 277.
49. As is well known, the CFI found in Kadi and Yusuf that the temporary deprivation of property as a consequence of asset freezing, as well as the right to a fair hearing and the limitations of the applicants' rights of access to a court, were not violations of jus cogens norms, and that their right to be heard was not violated by Community institutions which had no discretion in implementing SC relevant resolutions. Furthermore, the CFI held in Ayadi and Hassan that the Member States have an obligation under Art. 6 TEU, promptly to ensure that the case of individuals and entities challenging their inclusion in the list is 'presented without delay and fairly and impartially to the [Sanctions] Committee': Chafiq Ayadi, supra note 35, at para. 149
50. Faraj Hassan, supra note 35, at para. 119. Should states fail to fulfil this obligation, individuals should be allowed to bring an action for judicial review before the national courts against the competent national authorities.
51. In this context I have spoken in terms of 'spontaneous' checks (along the lines of what Roberto Ago described as 'spontaneous law' directly emerging from the societal body), not directly amenable within traditional tenets of domestic constitutionalism and separation of powers concerns: See Bianchi, supra note 28.
52. Saudi Arabia v. Nelson, 113 S Ct 1471 (1993), at 1480.
53. Bouzari v. Islamic Republic of Iran (Superior Court of Ontario, Swinton J), 124 ILR 427, at 446, paras 72-73,
54. and Bouzari v. Islamic Republic of Iran (Ontario Court of Appeal), 71 OR (rrd) 675, at 694-696.
55. See also the German Supreme Court's decision in Greek Citizens v. Federal Republic of Germany (The Distomo Massacre Case) 42 ILM 1030, 1032 (2002).
56. Lee M. Caplan, 'State Immunity, Human Rights, and Jus Cogens: A Critique of the Normative Hierarchy Theory', 97 AJIL (2003), at 741-781.
57. See Jones v. Ministry of Interior of the Kingdom of Saudi Arabia, House of Lords, Judgment of 14 June [2006] UKHL 26, paras. 43-45
58. quoting in para. 44 Hazel Fox, The Law of State Immunity, Oxford, 2002, p. 525: 'State immunity is a procedural rule going to the jurisdiction of a national court. It does not go to substantive law; it does not contradict a prohibition contained in a jus cogens norm but merely diverts any breach of it to a different method of settlement. Arguably, then, there is no substantive content in the procedural plea of state immunity upon which a jus cogens mandate can bite.'
59. Eur. Court H.R., Al-Adsani v. United Kingdom, Judgment of 21 November 2001, Reports of Judgments and Decisions 2001-XI, para. 61.
60. For a detailed analysis of the case see Andrea Bianchi, 'Immunity v. Human Rights: The Pinochet Case', 10 EJIL 237-277 (1999).
61. In fact, the Judicial Committee of the House of Lords found, by a majority of 6 to 1, that General Pinochet was not immune from torture and conspiracy to commit torture as regards acts committed after 8 Dec. 1988, when the ratification by the UK of the Torture Convention, following the coming into force of s. 134 of the Criminal Justice Act 1988 implementing the Convention, took effect.
62. Gavouneli and Bantekas, ' Prefecture of Voiotia v. Federal Republic of Germany, Case No.11/2000, May 4, 2000', 95 AJIL (2001) 198.
63. Ferrini v. Federal Republic of Germany, 128 ILR (2004) 658.
64. See on this case Bianchi, 'Ferrini v. Federal Republic of Germany. Italian Court of Cassation, March 11, 2004', 99 AJIL (2005) 242.
65. Ibid., at 247.
66. Al-Adsani v. United Kingdom, 2001-XI ECtHR 79, 34 EHRR (2002) 11.
67. Ibid., at para. 61.
68. See Concurring Opinion of Judge Pellonpää Joined by Judge Bratza, stressing that the 'basic framework for the conduct of international relations' advises against lifting immunity in these cases and that on general questions of international law the ECtHR should not take 'the role of a forerunner'.
69. Bianchi, 'Dismantling the Wall: The ICJ's Advisory Opinion and its Likely Impact on International Law' [2004] German Ybk Int'l L 343, at 383-387.
70. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] ICJ Rep 266, at para. 79.
71. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, Advisory Opinion [2004] ICJ Rep 200, at para. 159.
72. Armed Activities on the Territory of the Congo (New Application: 2002) (Dem. Rep. Congo v. Rwanda), Jurisdiction and Admissibility [2006] ICJ Rep 1, at paras 64 and 125.
73. Ibid., at para. 64.
74. Congo v. Rwanda Judgment, supra note 55, Separate Opinion of Judge ad hoc Dugard, at paras 3-14.
75. Ibid., at para 10.
76. Ibid.
77. Ibid., at para. 13.
78. Articles on the Responsibility of States for Internationally Wrongful Acts, UN Doc A/56/10 (2001), Art. 41.
79. Prosecutor v. Anto Furundzija, IT-95-17/1-T, ICTY Trial Chamber II, Judgment of 10 Dec. 1998, at paras 155-156. According to the Tribunal, which had previously qualified the prohibition of torture as a peremptory norm, at the inter-state level jus cogens serves internationally to de-legitimize any legislative, administrative, or judicial act authorizing torture. At the individual level, one of the consequences of jus cogens is that every state is entitled to investigate, prosecute, and punish or extradite individuals accused of torture.
80. In order to address the numerous problems that fragmentation has brought about in the international legal system, the study of the ILC on the fragmentation of international law emphasizes the need to shift from a logic of conflict and invalidity to one of interpretation and interpretive priorities: Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, Appendix, A/CN.4/L.682/Add.1, at 15.
81. See McLachlan, 'The Principle of Systemic Interpretation and Article 31 (3)(c) of the Vienna Convention', 54 Int'l and Comp LQ (2005) 279
82. and French, 'Treaty Interpretation and the Incorporation of Extraneous Legal Rules', 55 Int'l and Comp LQ (2006), 281
83. and Combacau and Sur, 'Principe d'integration', in J. Combacau and S. Sur, Droit international public (2004), at 175.
84. A/CN.4/L.682, at 213, para. 423.
85. Ibid., at 244, para 480: '[b]ut law is also about protecting rights and enforcing obligations, above all rights and obligations that have a backing in something like a general, public interest. Without the principle of "systemic integration" it would be impossible to give expression and to keep alive, any sense of the common good of humankind, not reducible to the good of any particular institution or "regime"'.
86. Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Joint separate opinion of Judges Higgins, Kooijmans, and Buergenthal [2002] ICJ Rep 3, at 85, para 73.
87. Ibid., at 85, para. 75: '[a] balance therefore must be struck between two sets of functions which are both valued by the international community. Reflecting these concerns, what is regarded as a permissible jurisdiction and what is regarded as the law on immunity are in constant evolution. The weights of the two scales are not set for all perpetuities.'
88. Supra note 54, at 200, para. 159.
89. Reference is made here to the seminal article by Weil, 'Towards Relative Normativity in International Law?', 77 AJIL (1983) 413.
90. A. Orakhelashvili, Peremptory Norms in International Law (2006).
91. Shelton, 'Normative Hierarchy in International Law', 100 AJIL (2006) 291, at 323.
92. Glennon, 'De l'absurdité du droit imperatif (jus cogens)', 110 Revue générale de droit international public (2006) 529.
93. All the relevant Memoranda and other documents are aptly assembled in K.J. Greenberg and J.L. Dratel (eds), The Torture Papers: The Road to Abu Ghraib (2005).
94. For a general appraisal of the US policy see Alvarez, 'Torturing the Law', 37 Case Western Reserve J Int'l L (2006) 175.
95. J. Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (2007).
96. See Second Periodic Report of the United States of America to the Committee against Torture (UN Doc CAT/C/8/Add. 3/Rev. 1, 13 Jan. 2006), available with all relevant documents at: www.ohchr.org/english/ bodies/cat/cats36.htm.
97. See Conclusions and Recommendations of the Committee against Torture: United States of America (UN Doc CAT/C/USA/CO/2, 18 May 2006).
98. Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion, Inter-American Court of Human Rights (ser. A) No. 18 (2003).
99. See the case-note by Cleveland in 99 AJIL (2005) 460.
100. See Juridical Condition and Rights of the Undocumented Migrants, supra note 78, at para. 110: 'the contents of the preceding paragraphs are applicable to all the OAS Member States. The effects of the fundamental principle of equality and non-discrimination encompass all States, precisely because this principle, which belongs to the realm of jus cogens and is of a peremptory character, entails obligations erga omnes of protection that bind all States and give rise to effects with regard to third parties, including individuals.' In fact, the Advisory Opinion was delivered in the aftermath of the US Supreme Court's decision in Hoffman Plastic Compounds v. NLRB, 535 US 137 (2002), where the Court held that undocumented migrant workers were not covered by the relevant provisions of the National Labour Relations Act as regards the right to back pay as a remedy for wrongful termination of union activity.
101. See, in particular, the long Separate Opinion appended by the Court's President, Judge A.A. Cançado Trinidade, in which he expounds his theory of jus cogens as an emanation of human conscience and the opinio juris communis of all the subjects of international law. Conscience would stand above the will of states in the making of international law (para. 87).
102. Shelton, supra note 72, at 323.
103. The need to undertake a rigorous test to ascertain that the peremptory character of a norm enjoys acceptance and support by a large majority of states was emphasized by the Inter-American Commission of Human Rights in its Report No. 62/02, Merits, Case 12.285, Michael Domingues/ United States, 22 Oct. 2002, at para. 50.
104. Meron, 'International Law in the Age of Human Rights. General Course on Public International Law', 301 Recueil des Cours 9 (2003) 420.
105. See Lévi-Strauss, 'La structure des mythes', in C. Lévi-Strauss, Anthropologie structurale (1958), at 227-255.
106. See also Cavendish's introduction to Cavendish, supra note 8, at 8-12.
107. Lévi-Strauss, supra note 84.
108. Bourdieu, 'Les modes de domination', [1976] Actes de la recherche en sciences sociales 122, 'The Force of Law: Toward a Sociology of the Juridical Field', 38 Hastings LJ (1986-1987) 814,
109. and ' Social Space and Symbolic Power', 7 Sociological Theory (Spring, 1989) 14.
110. M. Mauss, A General Theory of Magic (1972).
111. Ibid., at 108.
112. Ibid.
113. Ibid., at 109.
114. Ibid., at 117.