Public International LAW 321 Notes on Jus Cogens and Obligations Erga Omnes PDF

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FACULTY OF LAW PUBLIC INTERNATIONAL LAW 321

A System of “Higher Norms” in International Law: Jus Cogens and Obligations Erga Onmes The so-called “orthodox” approach in international law regards the international system as a “horizontal” system. All states are juridically equal and law-making is seen as a consensual process between sovereign equals. The rules of this system are regarded as morally “neutral” and “value-free”. 1

Two New Concepts

Two new concepts have recently emerged which challenge the “orthodox” approach to international law. The two new concepts are: (a) a collection of norms of “higher status” binding on all states and international organisations irrespective of their consent; and (b) a collection of norms binding on all states and international organisations irrespective of their consent. Both concepts will be considered in more detail below. (a) Jus Cogens (Latin for “compelling law”) Double-click on the icon below on how to pronounce jus cogens.

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The notion of jus cogens originated in Article 53 of the Vienna Convention on the Law of Treaties between Sates (the VC) of 1969. Article 53 stipulates that: “ a treaty is void if ... it conflicts with a peremptory norms of general international law ... [a] peremptory norm...is a norm accepted and recognized by the international community of states as a whole ... from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”.

Article 53 clearly prohibits States from entering into an international agreement (“treaty”) if the provisions of the treaty are in conflict of a peremptory norm of general international law. A peremptory norm is a norm which is generally accepted and recognised by States. As a consequence, no derogation is permitted from such a peremptory norm. The only instance where a peremptory norm can be modified is where a subsequent norm arises which has the same character and which is also a general norm of international law.

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Two types of norms qualify as “peremptory” in international law, namely (i) norms prohibiting the use of force or aggression; and (ii) rules which enjoy a wide measure of support. Examples include: • • • • •

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the prohibition of genocide (see, for example, Reservations to the Convention on the Prevention of the Crime of Genocide (1951) ICJ Reports (Advisory Opinion) 15) racial discrimination slavery the prohibition of torture (see, for example, R v Bow Street Metropolitan Stipendiary Magistrate, Ex Parte Pinochet Ugarte (No 3) [1999] 2 All ER (HL) (Pinochet Case) the denial of the right of nations to self-determination (see, for example, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004) Advisory Opinion ICJ Reports 2) suppression of human rights destruction of the environment (see, for example, Hungary v Slovakia (1997) ICJ Reports 7 (Gabcikovo-Nagymaros Project Case) where the ICJ stated that:

“Throughout the ages, mankind has, for economic and other reasons, constantly interfered with nature. In the past, this was often done without consideration of the effects upon the environment. Owing to new scientific insights and to a growing awareness of the risks for mankind - for present and future generations - of pursuit of such interventions at an unconsidered and unabated pace, new norms and standards have been developed, set forth in a great number of instruments during the last two decades. Such new norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past. This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development” Per Stephen M Schwebel, President of the ICJ at para 140. Emphasis added.

(b) Obligations Erga Omnes (Latin which means "towards all" or "towards everyone") Obligations erga omnes are obligations which all States owes to the international community as a whole and in the enforcement of which all States have an interest. Events in the former South West Africa (now Namibia) led to the formulation of concept. At the time, South West Africa was placed under the trusteeship of South Africa. Needless to say, South Africa introduced its policy of “separate development” (i.e. apartheid) in South West Africa. South Africa’s conduct in South West Africa led to a series of cases before the ICJ in 1960s (see, for example, South West Africa Case (1966) ICJ Reports 6). Two African States, namely Ethiopia and Liberia, approached the ICJ with a view to enforce “obligations owed to the whole international community”. On 4 November 1960, Ethiopia and Liberia (as former States Members of the League of Nations) instituted separate proceedings against South Africa in a case concerning the continued existence of the League of Nations Mandate for South West Africa and the duties and performance of South Africa as mandatory Power. The ICJ was requested to make

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declarations to the effect that South West Africa remained a territory under a Mandate, that South Africa had been in breach of its obligations under that Mandate, and that the Mandate and hence the mandatory authority were subject to the supervision of the United Nations. On 20 May 1961, the ICJ made an Order finding Ethiopia and Liberia to be in the same interest and joining the proceedings each had instituted. South Africa filed four preliminary objections to the ICJ’s jurisdiction. In a Judgment of 21 December 1962, the ICJ rejected these and upheld its jurisdiction. After pleadings on the merits had been filed within the time-limits fixed at the request of the Parties, the ICJ held public sittings from 15 March to 29 November 1965 in order to hear oral arguments and testimony. Judgment in the second phase was handed down on 18 July 1966. By the casting vote of the President, the ICJ found that Ethiopia and Liberia could not be considered to have established any legal right or interest appertaining to them in the subjectmatter of their claims, and accordingly decided to reject those claims. The ICJ thus denied locus standi to Ethiopia and Liberia even though Ethiopia and Liberia argued South Africa had an obligation “to promote the utmost material and moral well-being and social progression” of the people of South West Africa in terms of its trusteeship mandate. The ICJ rejected the argument and held that Ethiopia and Liberia had to prove a “national interest” in order to have locus standi in the matter. The above finding of the ICJ was repudiated in 1970 in Barcelona Traction, Light and Power Company Ltd 1970 ICJ Report 3 (Belgium v Spain Case). In this case, Belgium made an application to the ICJ on 19 June 1962 in which it sought reparation for damages claimed to have been caused to Belgian nationals, who were shareholders in the Canadian Barcelona Traction Company, by the conduct of various organs of the Spanish State. In the second phase of the judgment on 5 February 1970, the ICJ found that Belgium lacked locus standi to exercise diplomatic protection of shareholders in a Canadian

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company with respect to measures taken against that company in Spain. In its judgment, the ICJ rejected Belgium’s claim by fifteen votes to one. Therefore, States no longer need to prove a “national interest” where an obligation of concern to all states, an obligation erga omnes, is involved. Examples of obligations erga omnes are similar to examples of jus cogens and include: • acts of aggression • genocide • basic rights of human persons (slavery and racial discrimination) • right to self-determination (Portugal v Australia (East Timor Case) (1995) 34 International Legal Materials 1581; Legal Consequences of the Construction of the Wall in the Occupied Palestinian Territory ICJ (2004) Advisory Opinion ICJ Reports 2) It is interesting to note that although the International Law Commission recognises both principles, it avoids using the terminology. 2

Difference between Jus Cogens and Obligations Erga Omnes

Although the examples of these two notions are similar, a fundamental difference exists between them. This difference relates to their origin. The notion of jus cogens as a peremptory norm of international law originated in a treaty (about treaties), namely Article 53 of the VC of 1969. The notion of obligations erga omnes is a creature of the ICJ and its origin is thus to be found in the jurisprudence of the ICJ. 3

Effect of Two Notions

The effect of both notions have been profound in international law. Not only have both notions transformed international norms from “equal weight” to “graduated normativity”, but the expansion of, especially jus cogens, has left an indelible imprint on international law: ► at first, Article 53 prohibited States from entering into agreements (treaties) in violation of a peremptory norm of international law. Peremptory norms are general norms which have acquired a higher status in international law. These norms are thus so fundamental that no state may act in violation thereof – these norms are jus cogens. Examples include the prohibition on torture, a violation of the right of nations to self-determination, the prohibition on the use of aggression, etc. ► there is no closed category of jus cogens norms and the International Law Commission continuously add to the list. Since jus cogens norms continue to develop, there is an obvious relationship between the notion of jus cogens and international custom. Custom is a primary means through which peremptory norms of international law develop. ► International law has now reached the stage where jus cogens has developed form a prohibition contained in a treaty about treaties (i.e. Art 53 of the Vienna Convention of 1969) to a general prohibition which extends beyond treaty law. Jus cogens therefore now also applies to the behaviour of States generally (and not merely to the agreements they

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enter into with other States). States may not, therefore, practice torture or commit genocide as this would constitute a violation of jus cogens.

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South African Practice

In an obiter dictum, Conradie J in AZAPO v Truth and Reconciliation Commission 1996 (4) SA 562 (C) stated that in South Africa the constitutional rules seem to enable Parliament to pass a law even if contrary to international jus cogens. This statement is critiqued by John Dugard who argues that it is important in South Africa to harmonise peremptory norms and domestic constitutional norms The notion of jus cogens is also relevant to Democratic Alliance v Minister of International Relations and Cooperation 2017 (3) SA 212 (GP). In this instance, the Gauteng High Court held that: “[t]he necessary inference, on a proper construction of s 231 [of the Constitution of the Republic of South Africa of 1996], is that parliament retains the power to determine whether to remain bound by an international treaty. This is necessary to give expression to the clear separation of powers between the national executive and the legislature embodied in the section. It is parliament which determines whether an international agreement binds the country, it is constitutionally untenable that the national executive can unilaterally terminate such an agreement.” Per Mojapelo DJP, Makgoka and Mothle JJ at para 51. Emphasis added.

By ratifying the Rome Statute of the International Criminal Court of 1998 (through Act 27 of 2002), South Africa committed itself to prosecute individuals who stand accused of having committed international crimes (such as genocide, crimes against humanity and war crimes). This is in accordance with the international community’s belief that those responsible for violations of jus cogens should be held accountable. It could thus be argued that South Africa’s desire to withdraw from the Rome Statute (through an unconstitutional process) calls into question its commitment to uphold the peremptory norms of international law.

FOR THIS PART OF THE SYLLABUS, PLEASE PREPARE: Prescribed Readings Dugard J, Du Plessis M, Maluwa, T and Tladi, D Dugard’s International Law: A South African Perspective 2018 (5 ed) 49 – 56 Vienna Convention on the Law of Treaties between States of 1969, Article 53 Prescribed Case Studies (International)

 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (1951) ICJ Reports (Advisory Opinion) 15  Democratic Republic of the Congo v Rwanda 2006 ICJ Reports 6

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 R v Bow Street Metropolitan Stipendiary Magistrate, Ex Parte Pinochet Ugarte (Pinochet Case) (No 3) [1999] 2 All ER (HL)  Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004) Advisory Opinion ICJ Reports 2  South West Africa Case (1966) ICJ Reports 6  Barcelona Traction, Light and Power Company Ltd (Second Phase) (1970) ICJ Reports 3  Portugal v Australia (East Timor Case) (1995) 34 International Legal Materials 1581 Prescribed Case Studies (South(ern) Africa)

 Democratic Alliance v Minister of International Relations and Cooperation (Council for the Advancement of the South African Constitution Intervening) 2017 (3) SA 212 (GP)

Prof L van der Poll BA (Law) LLB LLM LLD (Stell)

Presenter and Coordinator: Public International Law 321 Department of Public Law and Jurisprudence Faculty of Law University of the Western Cape E-Mail [email protected]...