Talk:Peremptory norm

Prelude to Editing

This page is without doubt outdated considering all of the recent developments. As of the moment, I am not in a position to edit, although I probably will be in around 6 months time where I will give this page a much needed face-lift. A good place to start would be the International Law Commission's Draft Conclusions on jus cogens. If I may suggest a structure to potential editors: 1- History of Jus Cogens - its roots in Roman Law, its relevance in classical international law, and then, 1966-today (contemporary international law). What is it, what is its function, what does it do, etc. very basic stuff. 2- jus cogens as a rule-making process - discuss Article 53 of the VCLT (1969) and Part Two of the ILC's Draft Conclusions on Jus Cogens, how do norms jus cogens come about in international law. 3- Legal consequences of jus cogens, Part Three of the ILC's Draft Conclusions on Jus Cogens, what are they towards treaty, custom, unilateral acts, and resolutions of international organisations. 4- List of norms jus cogens, the ILC's annex to the Draft Conclusions on jus cogens only lists 8, but there is a book by Linderfalk published by Elgar which has 48 if I remember correctly, there is without doubt uncertainty but the 8 listed by the ILC are without doubt jus cogens (see Dire Tladi's 4th report on jus cogens).

The above in my opinion (researcher in the field of jus cogens) is a good start which will, without doubt, need to be updated after the above recommendations are filled - the relationship of jus cogens and state immunity for example, or normative conflictcs, or etc. etc. there are way too many to talk about at this point but I reckon I will edit this page based on the above in a few months time if no one else does. — Preceding unsigned comment added by 134.83.13.59 (talk) 10:44, 6 September 2022 (UTC)

Untitled

I reverted the changes that 65.25.176.254 made to peremptory norm because they seemed to be based upon some extreme minority POV, and contradicted the history and practice of the concept and international law generally. To the extent that there is limited academic criticism of the concept, the article already reflects that. The additions grossly overstated it and made it seem as if the supporters of peremptory norm are instead in the minority, a bizarre faction of "globalists" trying to undermine state sovereignty for the rest of the world.

To the contrary, the Vienna Convention on the Law of Treaties recognizes peremptory norms and invalidates any treaty provisions that are contrary to them, and just about every nation in the world is either a signatory or recognizes the Convention as customary international law. The United Nations Security Council has, very recently in history, with the establishment of the Int'l Criminal Tribunal for the former Yugoslavia and for Rwanda, imposed responsibility on individuals for violations of these norms (crimes against humanity, war crimes, etc.). Piracy has been an impermissible exercise of state sovereignty for centuries under international law. So where is the criticism? Who is criticizing the idea that states have limits on how they can use their power? Who is criticizing the idea that international law prohibits states from initiating wars of aggression or committing acts of genocide or practicing slavery? Who is criticizing individual responsibility for these violations? Postdlf 00:43 07 May 2004 (UTC)

As far as I can tell, there isn't much of a challenge to the concept of peremptory norms/jus cogens, only to the way in which they can be established. The central issue is whether laws of one state can ever be subordinate to the laws of a community of states. There's a growing sense that if one state passes laws that violate these norms, other states can simply gang up on that state without needing cover from international law.

As a general rule, I think we need to be careful about making it seem like a "majority" opinion is more right than a "minority" opinion. The truth is that states generally interpret international law in ways that benefit their political cause, and so-called experts voice their opinions that are greeted with cynical skepticism. --Leifern 17:45, 2005 Mar 21 (UTC)

A rationale for peremptory norms?

Concerning this paragraph from the article, especially the last sentence,

Some peremptory norms define criminal offences which are considered to be enforceable against not only states, but individuals as well. This has been increasingly accepted since the Nuremberg Trials (the first enforcement in world history of international norms upon individuals) and now might be considered uncontroversial. However, the language of peremptory norms was not used in connection with these trials - rather the basis of criminalisation and punishment of Nazi atrocities was that civilisation could not tolerate their being ignored, because it could not survive their being repeated.

The notion of that which civilization will not tolerate because it cannot survive its repetition, seems the very cogens of jus cogens: how can Nuremberg assert a criterion so relevant to jus cogens, and not be said to have used the language of peremptory norms? This seems offered as an enduring standard, not a one-off. What evidence do we have of how the legal novelty suggested in the paragraph was perceived or discussed by either the participants or later analysts?

On a separate point, I don't have a date for the language quoted in the paragraph, wouldn't it be towards the end of Nuremberg's 1945-1949. I wonder whether it somehow echos in "The Constitution is not a suicide pact," which was from a (later?) 1949 dissent.

StrangerInParadise 04:56, 15 April 2006 (UTC)

Is racial discrimination really considered a violation of jus cogens?

Forgive me, I am not a lawyer but is racial discrimination really considered to be a violation of jus cogens? Given that there cannot be recent tolerated state practice of other aspects of jus cogens such as genocide, as far as I am aware there are numerous incidents in which states are free to racially discriminate if they so please. Affirmative action is one area, states are under no obligation not to discriminate racially regarding immigration policy (e.g. Israel not admitting Muslims, Arab countries not admitting Israeli Jews, US Immigration not issuing study visas to male Muslims, the fact that it is usually much easier for a Japanese person to obtain a visa to visit a European country than an African etc). If someone can back up this assertion then so be it - I'm not convinced that racial discrimination is treated on the same level as genocide, piracy or aggression.

CallumJapan 01:14, 24 May 2004 (BST)

I agree; when I started this article, I didn't include it because my Int'l Law class and textbook never treated it as such. From the edit history, it was added by someone who claimed that the 1958 Barcelona Traction decision by the ICJ established it, but that case wasn't about race at all. Postdlf 00:23, 26 May 2006 (UTC)

Sources added

• I have added several sources to the article and I am trying to find more to strenghten the article. I also added some case law (and working on more) and included sections to discuss each known jus cogens.Charleenmerced 14:52, 12 February 2007 (UTC)Charleenmerced

Question about Iran's nuclear program

Here's a question for international law experts. On the discussion page about Iran's nuclear program someone suggested that Iran may be justified in appealing to jus cogens to argue that the UN Security Council cannot demand that Iran suspend uranium enrichment. I'd be interested if anyone who frequents this page cares to comment on that point. I suspect that, like many legal questions, this depends on the details, both in terms of law and fact. I'd be happy to explore those details. NPguy 03:30, 22 August 2007 (UTC)

jus or ius

This article uses both "jus cogens" and "ius cogens." It's just a spelling convention, but it should stick to one or the other (though I prefer "jus"). NPguy (talk) 02:24, 25 January 2008 (UTC)

Examples

Currently, there are only two listed. I think one should be removed as not clearly established as jus cogens, and the other should be expanded.

• The Inter-American Commission of Human Rights' decision notwithstanding, I think a prohibition against the execution of crimes committed as a juvenile is not sufficiently established as a jus cogens norm. It is a debated issue, but jus cogens norms require a truly clear consensus. Also keep in mind that with the exception of the USA and Canada, most of the (predominantly Catholic) members of the OAS consider abortion to violate the right to life. While states that practice any form of death penalty are certainly in the minority, that particular view is quite regional.

• The bit on torture should be expanded. Specifically it should go into the fact that the consensus is clear that torture is prohibited, but that what constitutes torture is where arguments start. Long before 9/11, Isreal was the big nit picker on this point, or at least the most recognized. This area, unlike slavery and piracy is a clear case where "the breach recognizes the norm." —Preceding unsigned comment added by InMyHumbleOpinion (talk • contribs) 08:23, 29 May 2008 (UTC)

Initial List

The initial list of generally accepted jus cogens norms in the second paragraph included the "prohibition on the use of force by states," but this is not a jus cogens norm. The UN Charter explicitly reserves the pre-existing right to the use of force in self-defence and explicitly permits the use of force under mandate from the Security Council. The prohibition on the use of force by states - or state actors - therefore, is not a non-dirigible obligation. It is, at most, a norm of customary international law subject to certain we recognized exceptions.

A number of points

My principal issue with this page is that it assumes that customary international norms are the only permissible source of peremptory norms (ius cogens). Any of the five sources recognised by Art 38 of the International Court of Justice Statute should be able to create ius cogens (see, for example, A.Orakhelashvili, Peremptory Norms in International Law) Akehurst's view that a treaty could not create such norms (see The Hierarchy of the Sources of International Law(1974-5) 47 BYIL 273) was based on the idea that prevailing Cold War politics made such treaties unlikely. Ius cogens are not separate sources of international law norms: they are simply norms (created by the usual means) which are so important they are accorded a higher status.

Jus/ ius is optional but I prefer ius as Classical Latin has no j.

JEAG06:28, 30 January 2009 (UTC)06:28, 30 January 2009 (UTC)JEAG (talk) 06:28, 30 January 2009 (UTC)

I agree that treaties can create jus cogens, but I doubt "any of the five sources" can do so. From the fourth edition of Shaw's International Law, pp. 97-98:

"It is also clear that only rules based on custom or treaties may form the foundation of jus cogens norms. This is particularly so in view of the hostile attitude of many states to general principles as an independent source of international law and the universality requirement of jus cogens formation."

In the absence of a custom or treaty, I don't see how "the teachings of the most highly qualified publicists of the various nations" could ever create "a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted".

As for jus/ius, the former is more widely used in the English-language literature, so our article should reflect that. The Latin version of Wikipedia can use ius. Regards, Polemarchus (talk) 16:18, 30 January 2009 (UTC)