© Springer International Publishing Switzerland 2015Norman Weiß and Jean-Marc Thouvenin (eds.)The Influence of Human Rights on International Law10.1007/978-3-319-12021-8_2
2. Jus Cogens and Human Rights: Interactions Between Two Factors of Harmonization of International Law
University Paris West Nanterre La Défense, Nanterre, France
George Abi-Saab said that even if jus cogens were “an empty box, the category was still useful: for without the box, it cannot be filled.”1
The quantum physics paradigm of the Schrödinger cat suits well peremptory norms of international law. The Schrödinger’s fictitious experiment consists in leaving a cat with poison in a box and locking it. The exterior observer will be unable to say if the cat in the box is dead or alive. Therefore, the cat is alive and dead at the same time. It is only when the box is opened and the contents observed that we can opt for one of the two possibilities. The same seems to go with jus cogens. It is known that a jus cogens category actually exists, yet observers seem to be unable to clearly decipher what is in the box. This uncertainty leads to a variety of guesses on the contents of the jus cogens box.
After jus cogens has been defined as 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,”2 many have thought on the potential use of jus cogens and what type of norms jus cogens could encompass.
Indeed, many hopes have been placed on jus cogens. Most significantly, the possibility that jus cogens will introduce a form of verticalization of international law and will finally give a constitution to the international legal order has been put to the fore. Professor Orakhelashvili defines the constitution as regulating “the issues of basic importance for the relevant community” and as prevailing “over ordinary laws”3 and asserts that peremptory norms of international law meet the two criteria. A. Peters states that “(j)us cogens norms can be said to operate as constitutional law because they establish a normative hierarchy based on material factors.” And she adds that they acquire this peremptory character because of “the particular moral values they embody.”4 Thus, for these two authors, an element of the constitution of international law must include at least two features: (1) a rule that is hierarchically superior to international law rules in general and (2) a rule that expresses core values of the international community. But which values are to be qualified as being at the foundation of the international constitution? It is at this point that human rights and jus cogens may interact as both would highly rely on values. According to F. Sudre, “international human rights tend towards the statement of an ideology shared by the human kind.”5 Thus, there may be an overlap between human rights and jus cogens if both sets of rules rely on the same value allowing, as a consequence, the inclusion of human rights in the jus cogens category.
Some authors argue that jus cogens and human rights share many similarities.6 The combination of the two sets of rules would give rise to harmonization of international law and ultimately to unification once the two are fully developed. Hence, jus cogens will become the vector of diffusion of human rights in the international field and would give more “bite” to it.7
Human rights can be understood as the rights and fundamental liberties inherent in the dignity of human beings.8 Therefore, they must be indivisible and universal.9 Human rights’ universality seems to hold some similarities with jus cogens, as is the fact that some are bound to be non-derogable. Despite their universality, human rights are still governed by international law, and under international law as such they do not bear any specific character that would allow them to weigh more than other rules of international law in general. This status quo may have changed with the fact that some human rights rules have acquired a jus cogens character.
In order to be recognized as jus cogens, a norm needs quasi-universality. Even if the purpose of human rights is to reach universality of recognition and enforcement, sometimes difficulties are encountered on that specific matter. A. Cassese underlines the discrepancies existing between the universalistic doctrine of human rights and the reality faced by a “huge variety of implementation of human rights by the various states.”10 Here, the possibility of interaction between the two is clear. Some “core human rights”11 have become customary international law because of their universal application and recognition by the States. This being the case, they are good candidates to be part of the jus cogens norms, if the international community of States as a whole recognizes their non-derogable character. Consequently, it is possible for a rule to be a human right and a jus cogens norm simultaneously.
More specifically, it means that if peremptory norms of international law were combined with human rights, this would contribute to the enforcement of the latter. This would be the case if both sets of rules had similar contents; then if one set of rules were to fail in its application, the other could take over and allow more chances for an effective enforcement. The reinforcement would be provided by the repetition of the norm, by its duplication. The same norm would appear in two different sets of rules giving to the former a double character: human rights character and jus cogens character. Finally, the cloning of the norm in two different sets of rules would lead to mutual enrichment and further and steadier development. It must be specified that we do not mean that a new norm will be created. The only consequence would be that a norm will acquire a jus cogens character as well as the human rights character already in existence. This is what is meant by the existence of the same norm in two different sets of rules. In that case, the non-derogable character of jus cogens can be seen as a safety net ensuring that no state can breach a human right that is cogens. Both could then contribute to a harmonization of international law.
The discovery of jus cogens gives rise to several questions relating to the interactions between human rights and jus cogens. To what extent could jus cogens actually contribute to the promotion of human rights and finally to the harmonization of international law? First, we will analyze the process of harmonization described in the doctrine, and then we will assess if jus cogens can fulfill these expectations.
2.2 Jus Cogens and Human Rights, Potential Vectors of Harmonization of International Law
Maybe the box of jus cogens was empty on the day it was discovered, but, to the eyes of some academics, it became gradually a vector of reinforcement for human rights. This oriented perception of jus cogens tends towards a far-reaching assimilation of jus cogens and human rights that is seen as “an almost natural intellectual reflex.”12 The circulation of ideas and concepts between the two sets of rules is possible, mainly thanks to the claimed similar values and enforcement mechanisms shared by human rights and jus cogens.
2.2.1 The Shared Values of Jus Cogens and Human Rights
Both would have a similar goal, namely the incorporation of values into international law. One of the similarities between human rights and jus cogens would be that both express the acknowledgment of the “ethical and political considerations”13 that exist behind the objectively identifiable rules. Jus cogens would be the illustration that norms can be ordered according to “their underlying values.”14 Thereafter, the problem of identification of human rights and jus cogens norms is solved, thanks to an intuitive representation based on a widely shared moral intuition.15 Human rights as well as norms of jus cogens are human centered in the sense that they aim to protect the individual against the use of discretionary power of the State. Professor De Londras claims that jus cogens is “essentially religious embodying, as it does, the basic protection that represents a consensus between different religions about the basics of human dignity.”16 Supposedly, this is what is at the roots of jus cogens. As human rights, jus cogens carries an ideology in its heart, and all actions made through jus cogens and by jus cogens should fulfill this aim. The main aim is to provide an expression for the necessity to have the establishment of a public order.17 Professor Klein asserts that this would contribute to create “the basis for a legal international community.”18
Those examples are an illustration of the appreciation of the value of jus cogens and its transformation into a religious or magical object or, at least, the embodiment of ethics and values in the international legal system.
Such a value-centered approach of jus cogens is not limited to the appreciation of the doctrine but can be found in judgments of the International Criminal Tribunal for ex-Yugoslavia (ICTY) and of the Inter-American Court of Human Rights (IACtHR). It is in the Furundzija case19 that the prohibition of torture was first recognized as being a jus cogens norm by an international tribunal. To assess whether or not the prohibition of torture has acquired a jus cogens character, the Tribunal did not use the test apparently laid out in the Vienna Convention on the Law of Treaties of 1969.20 The Tribunal did not analyze the practice of States or their declarations to find out whether they consider that prohibition of torture is a jus cogens norm. Indeed, the Tribunal asserts that “[b]ecause 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.”21 According to the Tribunal, the jus cogens character of the prohibition of torture stems from the values it protects. The Inter-American Court of Human Rights took a new approach to identify jus cogens in the Goiburú case.22 The Court asserted that “as may be deduced from the preamble to the aforesaid Inter-American Convention, faced with the particular gravity of such offenses and the nature of the rights harmed, the prohibition of the forced disappearance of persons and the corresponding obligation to investigate and punish those responsible has attained the status of jus cogens.”23 In this case, it seems that an accumulation of different factors has contributed to the accession of the obligation to the rank of jus cogens. Here, the Court does not refer to the values enshrined by the obligation to investigate, nor does it study the behavior of States concerning that rule. Instead, the Court points at the Convention and the behavior of Paraguay and the gravity of the offense. Here, it is the violation of two human rights combined—the prohibition of forced disappearance and the obligation to investigate—that would give rise to a jus cogens norm. Even if this manner of assessing the existence of jus cogens can be criticized, it is interesting to find out that in this reasoning the Court considers that jus cogens stems from human rights while the former reinforces the human rights that contributed to its birth.
This shows the close links between the two notions and the permeability, in the practice of the IACtHR, between the two sets of rules. In this context, human rights may be able to reinforce jus cogens by adding more peremptory norms of international law from the human rights ranks. But it is highly probable that human rights have more to benefit from jus cogens than jus cogens from human rights. Indeed, by being recognized as jus cogens norms, human rights gain a new status. This asserts again the fact that they are non-derogable. For example, in the La Cantuta case, the Court asserts: “As a result, the duty to investigate and eventually conduct trials and impose sanctions, becomes particularly compelling and important in view of the seriousness of the crimes committed and the nature of the rights wronged; all the more since the prohibition against the forced disappearance of people and the corresponding duty to investigate and punish those responsible has become jus cogens.”24 It seems that, here, the use of jus cogens helps to strengthen and consolidate the human rights. If there is doubt concerning the importance of the human right in question, or if there is a conflict between a human right and another rule, the jus cogens character of the human rights would be a decisive criterion. It fortifies the human rights by a repetition of the norm included in the human rights rule by adding another character, the character of jus cogens.
If some values are shared between human rights and jus cogens, then it means that the two sets of rules have the same finality and should not enter into conflict. But even if they share the same goals, it is necessary to assess the means of enforcement available to seal this cooperation between human rights and jus cogens.
2.2.2 Enforcement Mechanisms to Achieve Harmonization
The identity between human rights and jus cogens is not sufficient enough to fulfill harmonization of international law. The enforcement of jus cogens norms must be able to influence the contents of international law in order to overcome the horizontal system of the international legal order. This is where the constitutional potential of jus cogens has a role to play. Just like in domestic law where the Constitution represents the top of the pyramid, jus cogens would represent the most important norms that have to be complied with, thus conditioning the validity of all other norms as it has been developed earlier.
The creation of a hierarchical order based on jus cogens would be part of the normative dimension of international constitutionalization in progress. Anne Peters argues that “although no international constitution in a formal sense exists, fundamental norms in the international legal order do fulfill constitutional functions. Because those norms can reasonably be qualified as having a constitutional quality, they may not be summarily discarded in the event of a conflict with domestic constitutional law.”25 Moreover, “[T]he formal feature of supremacy is present on the international plane: jus cogens is a specific, superior body of norms. It trumps conflicting international treaties and customary law.”26 However, jus cogens has shown its limits in terms of treaty invalidation. A. Peters recognizes that this is not enough to assert that an international law Constitution has appeared in the formal sense, adding that the hierarchy of norms is “only rudimentary.”27