Introduction 

• Jus Cogens are also known as peremptory norm of general International Law.  
• It is a fundamental and overriding principle of international law. 
• It is absolute in nature which means that there can be no defense for the commission of any act that is prohibited by jus cogens. 

Jus Cogens 

• There are certain principles of international law that all States must observe. Their non observance may affect the foundation of the legal system to which they belong. 
• These rules cannot be altered by concluding treaties. 
• It is basically a compilation of norms that lays down the international obligations which are essential for the protection of the fundamental interest of the international community and any violation of these norms is thereby recognized as a crime against the community as a whole. 
• Jus Cogens imply absolute restrictions on genocide, slavery, slave trade, torture or any kind of inhumane treatment.  

Vienna Convention on Law of Treaties, 1969 and Jus Cogens 

• Article 53 of Vienna Convention on the Law of Treaties, 1969 
  • Article 53 provides that a treaty is void if at the time of it’s conclusion it conflicts with a preemptory norm of general International Law. 
  • This Article provides that for the purposes of present Convention a preemptory norm: 
    • is 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. 
• Article 64 of Vienna Convention on the Law of Treaties, 1969 
  • Article 64 provides that if a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates. 
• Article 72 Para 2 of Vienna Convention on the Law of Treaties, 1969 
  • Para 2 of Article 72 provides that in the case of a treaty which becomes void and terminates under article 64, the termination of the treaty: 
    • releases the parties from any obligation further to perform the treaty; 
    • 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 those rights, obligations or situations may thereafter be maintained only to the extent that their maintenance is not in itself in conflict with the new peremptory norm of general international law. 
• The above provisions of Vienna Convention provide that it is essential for a treaty to be valid that it should be in conformity with the principles and the rules of International Law which are in the nature of jus cogens. 

What are Jus Cogens? 

• Norms having character of jus cogens can practically be created only by a norm of general customary international law.  
• Three types of jus cogens rules exist in International Law. 
  • Firstly, those exist in the common interest of whole international community. 
  • Secondly, those created for humanitarian purposes. 
  • Thirdly, those introduced by the UN Charter against the threat or use of force in international relations. 
• However, it is difficult to formulate on the above basis as to what are jus cogens rule in International Law in the absence of precise definition of expressions like ‘common interest of international community’, ‘humanitarian purposes’ and ‘principles of the Charter’.  
• It is difficult to say as to what the norms of jus cogens are. This concept draws it’s parallel with public policy of municipal law. No one can say with certainty what rules possess the character of jus cogens. 

What are Case Laws Related with Jus Cogens? 

• Bosnia and Herzegovina v Serbia and Montenegro [2007] 
  • Serbia was alleged to have attempted extermination of the Muslim population of Bosnia and Herzegovina which led to violations of the Convention on the Prevention and Punishment of the Crime of Genocide, thereby invoking an article of the genocide convention. 
  • Justice Lauterpacht in this case defined jus cogens as a concept which is superior to both customary law and treaty as it stands on the very fundamentals of natural law and humanity.   
  • He also associated jus cogens with the general principles of law and said that irrespective of its origin, jus cogens encircles all the fundamentals of a necessary law at the international level and hence, is the superior-most in  hierarchy.   
  • It was unanimously held in this case that Serbia was neither directly involved nor was complicit in it but it rather committed a breach of genocide convention by failing to prevent it from occurring, the genocide convention being a part of jus cogens. 
• Republic of Nicaragua v. the United States of America (1984) 
  • The U.S. decided to plan and undertake activities against Nicaragua. Armed interventions were led by the U.S. in Nicaragua and they also undertook the military and paramilitary forces in and against Nicaragua. 
  • The Court held that the United States violated its customary international law obligation of not to use force against another State when it directly attacked Nicaragua. 
• Pablo Najera Case (1928) 
  • This was one of the early cases where the Court recognized the concept of jus cogens. 
  • The issue here was regarding the arbitral award named Pablo Najera between France and Mexico. 
  • The question of the concerned case was the registration of treaties and sanctioning of invalidity in the event of non-registration. 
  • Mexico had raised the issue of non-registration by France in the Franco-Mexico compromise as a preliminary objection. 
  • The President of the Arbitration Commission characterized the obligation as non-derogatory and used the principle of jus cogens to justify it. 

Conclusion 

The rule of jus cogens exists in International Law but it is not well defined so far as it’s contents are concerned. However, this does not mean that the jus cogens do not exist at all. The principle of jus cogens has generated hope that developing standards of law would result in a higher realization of justice in domestic actions and in an enhanced outlook for justice, peace, and cooperation among nations.