Summary jus cogen and erga omnes PDF

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HIERARCHY AND SOURCE OF JUS COGENS    

Question of priority between treaty and custom GENERAL RULE= THE LATTER IN TIME WILL HAVE PRIORITY In the situation where both custom and treaty co-exist and appears at the same time, the general rule does not apply. Erga omnes and jus cogens term may overlap at certain point however they are different in nature  Erga omnes concerns the scope of application of the relevant rule, which states as generality may subject to the rule in question ‘erga omnes’. Primarily a procedural focus.  Jus cogens are substantive rules recognised to be of a higher status as such.  The concept of jus cogens is based upon an acceptance of fundamental and superior values within the system and in some respects is akin to the notion of public order or public policy in domestic legal orders  Distinction between this two terms in Barcelona Traction Case 1. there existed an essential distinction between the obligations of a state towards the international community as a whole 2. those arising vis-`a- vis(face to face) another state in the field of diplomatic protection.  Jus cogens o Example: 1. Prohibition of torture-The decision of the International Criminal Tribunal for the Former Yugoslavia in the Furundzija case. Siderman v argentina, ex parte Pinochet. The Al-Adsani case 2. Prohibition in extrajudicial killing, the decision of the US District Court in Alejandre v. Cuba 121 3. Non-discrimination the decision of the Inter-American Court of Human Rights in its advisory opinion concerning the Juridical Condition and Rights of the Undocumented Migrants  Erga omnes concerned all states and ‘all states can be held to have a legal interest in their protection. o Example: 1. outlawing of aggression and of genocide and the protection from slavery and racial discrimination- Nicaragua case 2. prohibition of torture-Furundzija case 3. the right of peoples to self-determination-East Timor case 4. the rights and obligations enshrined in the Genocide Convention – Bosnia v Serbia

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Related articles with regard to jus cogens-article 53, 64, 69,71 of Vienna Convention on the Law of Treaties, 1969  Article 53 -a treaty will be void ‘if, at the time of its conclusion, it conflicts with a peremptory norm of general international law’. i. Two stage in establishing a jus cogen/ peremptory norm. a. The establishment of the proposition as a rule of general international law. b. The acceptance of that rule as a peremptory norm by the international law community of states as a whole. ii. The act of foisting the said peremptory norm upon a political or ideological minority, for that in the long run would devalue the concept. iii. Only rules based on custom or treaties may form the foundation of jus cogens norms  Article 64-if a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.  If treaty is void under section 64, the parties are released from any obligation further to perform the treaty, but this 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 the rights, obligations or situations maybe maintained thereafter in conformity with the new peremptory norm.  Article 69 -an invalid treaty is void and without legal force. Ifacts have nevertheless been performed in reliance on such a treaty, each party may require any other party to establish as far as possible in their mutual relations the position that would have existed if the acts had not been performed.  Article 71 –when the treaty terminates under Section 53, that the parties are to eliminate as far as possible the consequences of any act performed in reliance on any provision which conflicts with jus cogens and bring their mutual relations into conformity with the peremptory norm.  This rule (jus cogens) will also apply in the context of customary rules so that no derogation would be permitted to such norms by way of local or special custom.

The violation of united states against the international law

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The international law commission shall have for its object the promotion of the progressive development of international law and its codification. Her comes treaty to resolve the problem on how to govern the states but it needs to be sign and ratify. US did not sign some treaty including the Rome Statute, the Vienna convention and other number of nuclear related. Supranational law judge by the international law court of justice founded on 1946 NICARAGUA FILED SUITS AGAINST THE UNITED STATES

Alleged that US had supported the country rebellion against the government of Nicaragua. US also planted mie on Nicaragua territorial water. The ample evidence shows that the contras rebels were NCIA funded trained rebel groups establish by the US president at that time, Ronald Reagen. The United States sold weapon to iran and assisted the Colombian cocaine trade. The united states had violated grossly many number of international law and the Nicaragua sovereignity. Nicaragua asked for 17,000 dollar us. US drew support to international court of justice, as the UNSC they did nothing to seek for any further good judgement. Till this day, the Nicaragua did not get any compensation.

ERGA OMNES A Jus Cogens rule (synonym: peremptory norm) is described in the Vienna Convention on the law of Treaties as follows: “…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.” Short and simple, it’s a rule that is so widely accepted that every and any State must comply with it. It is seen as essential to international law, leaving no room for reservations by certain actors on the international stage. An entity can not, for example, claim to have the right to use armed force against a state, based on the fact that it has not signed and ratified the UN Charter. The prohibition on the use of force is part of jus cogens, and therefore not subject to reservations or derogations. A jus cogens rule is the highest class of rules in the hierarchy of international law. An erga omnes obligation is an obligation that every state has toward the entire international community as a whole. The nature of the rules creating erga omnes rules is such that any state has the right to complain of a breach by another state of said rule, because every state has an interest in the protection of the rules that generate erga omnes obligations. For example, a state does not need to be directly or indirectly involved in a case of genocide in order to be able to complain about it.

Now it might seem difficult to observe a difference. That is because both concepts are closely related. A jus cogens rule creates an erga omnes obligation for states to comply with a rule. An erga omnes obligation is therefore the consequence of a rule being characterized

Pp v furundjiza Anto Furundžija was the commander of a special unit of the Croatian Defence Council called the “Jokers.” He was brought before the ICTY for the commission of crimes against Bosnian Muslims who were interrogated at the headquarters of the “Jokers” in Nadioci (Bosnia and Herzegovina) in May 1993. During the interrogations, those detained were subjected to sexual assaults, rape, physical and mental suffering. Trial Chamber II was satisfied that the elements of the war crime of torture have been fulfilled and it found Furundžija guilty of this crime as a co-perpetrator. Furthermore, Furundžija was also found guilty of aiding and abetting the war crime of outrages upon personal dignity, including rape. Although Furundžija did not personally commit the crime, his presence and actions aided and abetted the commission of rape. Furundžija was sentenced to 10 years of imprisonment. Anto Furundžija was the commander of the “Jokers”, a special unit within the Croatian Defence Council (HVO). As such, he was actively involved in the hostilities against the Muslim population in the Lašva Valley area (in Bosnia and Herzegovina), including the attack on the village of Ahmići (Bosnia and Herzegovina), where he personally participated in expelling Muslims from their homes in furtherance of the armed conflict. The events giving rise to the case against Furundžija have occurred at the “Jokers’” headquarters, a holiday cottage in Nadioci, (Bosnia and Herzegovina) in May 1993. During this time, Furundžija captured and interrogated women with the intention to obtain information which he believed would benefit the HVO. During the interrogations, those detained were subjected to sexual assaults, rape, physical and mental suffering. (para. 66 et seq.) The Prohibition Imposes Obligations Erga Omnes

151. Furthermore, the prohibition of torture imposes upon States obligations erga omnes, that is, obligations owed towards all the other members of the international community, each of which then has a correlative right. In addition, the violation of such an obligation simultaneously constitutes a breach of the correlative right of all members of the international community and gives rise to a claim for compliance accruing to each and every member, which then has the right to insist on fulfilment of the obligation or in any case to call for the breach to be discontinued.

152. Where there exist international bodies charged with impartially monitoring compliance with treaty provisions on torture, these bodies enjoy priority over individual States in establishing

whether a certain State has taken all the necessary measures to prevent and punish torture and, if they have not, in calling upon that State to fulfil its international obligations. The existence of such international mechanisms makes it possible for compliance with international law to be ensured in a neutral and impartial manner.

(c) The Prohibition Has Acquired the Status of Jus Cogens

153. While the erga omnes nature just mentioned appertains to the area of international enforcement (lato sensu), the other major feature of the principle proscribing torture relates to the hierarchy of rules in the international normative order. Because of the importance of the values it protects, this principle has evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even "ordinary" customary rules.170 The most conspicuous consequence of this higher rank is that the principle at issue cannot be derogated from by States through international treaties or local or special customs or even general customary rules not endowed with the same normative force.

154. Clearly, the jus cogens nature of the prohibition against torture articulates the notion that the prohibition has now become one of the most fundamental standards of the international community. Furthermore, this prohibition is designed to produce a deterrent effect, in that it signals to all members of the international community and the individuals over whom they wield authority that the prohibition of torture is an absolute value from which nobody must deviate.

155. The fact that torture is prohibited by a peremptory norm of international law has other effects at the inter- state and individual levels. At the inter-state level, it serves to internationally de-legitimise any legislative, administrative or judicial act authorising torture. It would be senseless to argue, on the one hand, that on account of the jus cogens value of the prohibition against torture, treaties or customary rules providing for torture would be null and void ab initio,171 and then be unmindful of a State say, taking national measures authorising or condoning torture or absolving its perpetrators through an amnesty law.172 If such a situation were to arise, the national measures, violating the general principle and any relevant treaty provision, would produce the legal effects discussed above and in addition would not be accorded international legal recognition. Proceedings could be initiated by potential victims if they had locus standi before a competent international or national judicial body with a view to asking it to hold the national measure to be internationally unlawful; or the victim could bring a civil suit for damage in a foreign court, which would therefore be asked inter alia to disregard the legal value of the national authorising act. What is even more important is that perpetrators of torture acting upon or benefiting from those national measures may nevertheless be held criminally responsible for torture, whether in a foreign State, or in their own State under a subsequent regime. In short, in spite of possible national authorisation by legislative or judicial

bodies to violate the principle banning torture, individuals remain bound to comply with that principle. As the International Military Tribunal at Nuremberg put it: "individuals have international duties which transcend the national obligations of obedience imposed by the individual State".173

156. Furthermore, at the individual level, that is, that of criminal liability, it would seem that one of the consequences of the jus cogens character bestowed by the international community upon the prohibition of torture is that every State is entitled to investigate, prosecute and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction. Indeed, it would be inconsistent on the one hand to prohibit torture to such an extent as to restrict the normally unfettered treaty- making power of sovereign States, and on the other hand bar States from prosecuting and punishing those torturers who have engaged in this odious practice abroad. This legal basis for States' universal jurisdiction over torture bears out and strengthens the legal foundation for such jurisdiction found by other courts in the inherently universal character of the crime. It has been held that international crimes being universally condemned wherever they occur, every State has the right to prosecute and punish the authors of such crimes. As stated in general terms by the Supreme Court of Israel in Eichmann, and echoed by a USA court in Demjanjuk, "it is the universal character of the crimes in question i.e. international crimes which vests in every State the authority to try and punish those who participated in their commission".174

157. It would seem that other consequences include the fact that torture may not be covered by a statute of limitations, and must not be excluded from extradition under any political offence exemption.

4. Torture Under Article 3 of the Statute

158. Torture is not specifically prohibited under Article 3 of the Statute. As noted in paragraph 133 of this Judgement, Article 3 constitutes an `umbrella rule', which makes an open-ended reference to all international rules of humanitarian law. In its "Decision On The Defendant's Motion To Dismiss Counts 13 and 14 of The Indictment (Lack Of Subject Matter Jurisdiction)" issued on 29 May 1998, the Trial Chamber held that Article 3 of the Statute covers torture and outrages upon personal dignity including rape, and that the Trial Chamber has jurisdiction over alleged violations of Article 3 of the Statute.

5. The Definition of Torture

159. International humanitarian law, while outlawing torture in armed conflict, does not provide a definition of the prohibition. Such a definition can instead be found in article 1(1) of the 1984 Torture Convention whereby:

For the purposes of this Convention, the term 'torture' means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

The concept of erga omnes and the distinction with the jus cogens Unlike jus cogens that can be consider as a substantive rule, the concept of erga omnes are the procedural law whereby these two concept are overlapping in certain ways. Jus Cogens norms rise the erga omnes obligation. In other word, jus cogens are the obligation and norms (premptory norm) which are accepted by the international states while erga omnes is the character of the obligation stated by the jus cogens. The jus cogen norms are the point where it will eventually raise the erga omnes. This can be For instance the jus cogen prohibit any sort of torture or criminal happen ina country, the erga omnes norms come into picture when the neighboring country or any other country complain about the criminal happen in another country. Any country has the right to file a complaint on another country illegal conduct which breach to the concept of jus cogens. The ILC in the paragraph 7 of the general commentary to Chapter III of Part of the articles on state responsibility has said, correctly in my view, that "there is at least a substantial overlap" between the concepts. The only exceptions, i.e. of obligations erga omnes not arising from jus cogens norms, that have been pointed out to me are obligations arising from some (emphasis) rules relating to common spaces, most notably examples arising from the common heritage of mankind rules/principles. It would not apply to other common spaces rules such as freedom of the high seas - and here I think your discussion of why erga omnes refers to obligations and not rights is apt....