Peremptory norm
From Wikipedia, the free encyclopedia
A peremptory norm (also called jus cogens, Latin for "compelling law") is a fundamental principle of international law considered to have acceptance among the international community of states as a whole.
Contents |
[edit] Basics
Unlike ordinary customary law that has traditionally required consent and allows the alteration of its obligations between states through treaties, peremptory norms cannot be violated by any state "though international treaties or local or special customs or even general customary rules not endowed with the same normative force".[1] Under the Vienna Convention on the Law of Treaties, any treaty in violation of a peremptory norm is null and void.[2] The treaty allows for the emergence of new peremptory norms,[3] but does not itself specify any peremptory norms (see Art. 53 of the Vienna Convention).
The number of peremptory norms is considered limited but not exclusively catalogued. They are not listed or defined by any authoritative body, but arise out of case law and changing social and political attitudes. Generally included are prohibitions on waging aggressive war, crimes against humanity, war crimes, piracy, genocide, slavery, and torture.[4][5]
Despite the seemingly clear weight of condemnation of such practices, some critics disagree with the division of international legal norms into a hierarchy. There is also disagreement over how such norms are recognized or established. The relatively new concept of peremptory norms is at odds with the traditionally consensual nature of international law considered necessary to state sovereignty. However, sovereignty has never truly been an absolute concept and limitations upon it are increasingly supported.
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.
There are often disagreements over whether a particular case violates a peremptory norm. As in other areas of law, states generally reserve the right to interpret the concept for themselves.
[edit] Execution of juvenile offenders
The case of Michael Domingues v. United States provides an example of jus cogens. Michael Domingues had been convicted and sentenced to death in Nevada, United States for two murders committed when he was 16 years old. Domingues brought the case in front of the Inter-American Commission of Human Rights which delivered a non-legally binding report.[6] The United States argued that there was no jus cogens norm that "establishes eighteen years as the minimum age at which an offender can receive a sentence of death".[7] The Commission concluded that there was a "jus cogens norm not to impose capital punishment on individuals who committed their crimes when they had not yet reached 18 years of age."[8]
[edit] Torture
The International Criminal Tribunal for the Former Yugoslavia stated in Prosecutor v. Furundžija that there is a jus cogens for the prohibition against torture.[9] It also stated 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."[10] Therefore, there is universal jurisdiction over torture. The rationing for this is that "the torturer has become, like the pirate and the slave trader before him, hostis humani generis, an enemy of all mankind."[11]
[edit] Jus Cogens norms: Case law
- Prohibiting execution of juvenile offenders - Michael Domingues v. United States (2002)
- Torture - Prosecutor v. Furundžija (2002)
[edit] References
- ^ Prosecutor v. Furundzija, International Criminal Tribunal for the Former Yugoslavia, 2002, 121 International Law Reports 213 (2002)
- ^ Vienna Convention on the Law of Treaties, Article 53, May 23, 1969, 1155 U.N.T.S 331, 8 International Legal Materials 679 (1969)
- ^ Vienna Convention on the Law of Treaties, Article 64, May 23, 1969, 1155 U.N.T.S 331, 8 International Legal Materials 679 (1969)
- ^ Marc Bossuyt en Jan Wouters (2005): Grondlijnen van internationaal recht, Intersentia, Antwerpen enz., p. 92.
- ^ Prosecutor v. Furundžija, International Criminal Tribunal for the Former Yugoslavia, 2002, 121 International Law Reports 213 (2002)
- ^ The Michael Domingues Case: Argument of the United States, Office of the Legal Adviser, United States Department of State, Digest of United States Practice in International Law 2001, at 303, 310-13
- ^ The Michael Domingues Case: Argument of the United States, Office of the Legal Adviser, United States Department of State, Digest of United States Practice in International Law 2001, at 303, 310-13
- ^ The Michael Domingues Case: Report on the Inter-American Commission on Human Rights, Report No. 62/02, Merits, Case 12.285 (2002)
- ^ Prosecutor v. Furundžija, International Criminal Tribunal for the Former Yugoslavia, 2002, 121 International Law Reports 213 (2002)
- ^ Prosecutor v. Furundžija, International Criminal Tribunal for the Former Yugoslavia, 2002, 121 International Law Reports 213 (2002)
- ^ Janis, M. and Noyes, J. International Law": Cases and Commentary (3rd ed.), Prosecutor v. Furundžija, Page 148 (2006)
